The Supreme Court ruled 5-4 yesterday that white firefighters in New Haven, Connecticut were the victims of discrimination when they were denied promotions because of their race. Ricci v. DeStefano, No. 07-1428 (June 29, 2009).
The Court’s decision reversed a controversial court of appeals decision endorsed by Supreme Court nominee Sonia Sotomayor. The ruling could change the way employers approach discrimination and could make it more difficult for plaintiffs to prevail without evidence of intentional discrimination.
The Ruling
The Court found that New Haven unlawfully threw out a promotion test when the city found that only two Hispanics and no African-Americans who passed were eligible for promotion. The city admitted that it did so out of fear of a “disparate impact” lawsuit from minority employees.
Twenty white firefighters sued, claiming that the decision was discriminatory. The Court agreed.
In the Court’s majority opinion, Justice Anthony Kennedy emphasized the clear aim of Title VII: “No individual should face workplace discrimination based on race.” He added: “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” The Court concluded that ruling otherwise would “encourage race-based action at the slightest hint of disparate impact.”
Justice Kennedy stated that an employer needs a “strong basis in evidence” to believe it will face liability in a disparate impact suit. The Court found that the city lacked such evidence because the facts showed that:
- the test was “job-related and consistent with business necessity”;
- the city “turned a blind eye to evidence that supported the test’s validity”;
- the city failed to request validation of the test, even though it was available under the contract with the test’s provider; and
- the city failed to consider possible modifications to the test or other alternatives, such as assigning different weights to oral and written portions.
Dissent and Concurrence
In her dissent, Justice Ginsburg predicted that the ruling “will not have staying power.” She said that “Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow” and asserted that the written portion of the test wasn’t likely to predict which firefighters were more deserving of promotion.
In his concurring opinion, Justice Scalia seemed to predict that the ruling could be the beginning of the end for disparate impact cases, stating: ”the war between disparate impact and equal protection will be waged sooner rather than later.”
What Does This Mean for Employers?
Confusion, most likely. The Court didn’t exactly give employers a bright-line standard. The old test was a “good-faith basis” for throwing out a test. The new one is a “strong basis of evidence.” The most likely result? More litigation and more so-called “reverse discrimination” claims.
The Court’s ruling will make it tougher for employers to change a selection process once it’s in place. As such, employers have even more incentive to make the process — and any tests in particular — as valid, job-related and fair as possible up front.
Some employers will scrap tests altogether. Others will turn to outside experts to validate and/or conduct assessments to reduce potential liability.
What Does This Mean for Sotomayor?
With Sotomayor’s confirmation hearings now less than two weeks away, conservative opponents are likely to point to the Supreme Court’s reversal as additional evidence of politics-based judicial activism on her part. Sotomayor’s backers will likely continue to assert that her position on the suit illustrates her judifical restraint and refusal to ignore precedent.
Stay tuned for more.
