In Ricci v. DeStefano, No. 07-1428 (S. Ct. 2009), the U.S. Supreme Court ruled that, in throwing out the results of a promotional exam, the City of New Haven, Connecticut (the “City”) has discriminated against its white firefighters, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).
In Ricci, the City had been using objective examinations to identify the best qualified candidates for promotion at its fire department. In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. However, when the examination results showed that white candidates had outperformed minority candidates, the City discarded the test results. Certain white and hispanic firefighters, who likely would have been promoted based on their good test performance, sued the City and some of its officials, on the grounds that discarding the test results constitutes racial, “disparate treatment” discrimination in violation of Title VII. A claim was also made by the firefighters under the Fourteenth Amendment’s equal protection clause, but that claim was dropped by the Court after finding that the firefighters could prevail on their Title VII claim.
Ricci involved a tension between “disparate treatment” discrimination, which is intentional discrimination, and “disparate impact” discrimination, which is a practice which has a disproportionately adverse effect on minorities (such as in Griggs v. Duke Power Company, 401 U.S. 424 (1971)). The Court ruled that the City’s actions-discarding the test because white candidates had fared better than minority candidates- had violated the disparate treatment prohibition of Title VII, absent some valid defense. The defense offered by the City was that, if it did not discard the test, it would be committing “disparate impact” discrimination under Title VII against the minority candidates, and would be subject to suit on those grounds. However, the Court said that the City’s actions, when based on race, would be permissible, and would provide the City with a valid defense, only where there is a strong evidence that remedial actions were needed. Thus, the City could not have discarded the tests, without violating the disparate treatment proscription of Title VII, absent strong evidence that the test was deficient, and that discarding the test results is necessary to avoid such violation. The Court held that, since there was not sufficiently strong evidence of the test’s deficiency in the instant case, the firefighters can prevail on their claim of discrimination. The memorable quote from the opinion: “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.”
Importantly, the Court indicated that mere statistical results, and nothing more, is not the strong evidence required to establish a defense against a claim of disparate treatment discrimination under Title VII. The Court indicated that the evidence would be strengthened by a showing that the City’s test was flawed or not usable because it is not job-related, or because other, equally valid and less discriminatory tests were available to the City.
Ricci has very important implications. Although Ricci involves public employees, the anti-discrimination rules of Title VII apply to private employees as well. Consequently, the case provides instruction for public and private employers on whether and to what extent race may play a part in employment decisions, and on how testing may be used in hiring and promotion decisions at work.