Supreme Court Strikes Down City’s Attempt to Avoid Discrimination

On Monday, June 29, the United States Supreme Court issued its much-anticipated decision in a case of discrimination brought by white firefighters from New Haven, Connecticut. In Ricci v. DeStefano, No. 07-1428, the Court held that a city went too far in its attempts to avoid discrimination against African-Americans — so far that it ended up discriminating against whites and Hispanics. The opinion presents a stark lesson for employers who make race-conscious decisions in an attempt to avoid discrimination or achieve a “balanced” workforce.

The case revolved around a test used by the city of New Haven, Connecticut, to identify the firefighters best suited for promotion. After administering the test, the city discovered that minority firefighters had passed the test at a much lower rate than white firefighters. The disparity was so great that the city became concerned about the validity of the test—and the possibility of being sued by minority firefighters. Under Title VII of the Civil Rights Act of 1964 (Title VII) and other laws, such tests cannot have a “disparate impact” on minorities — that is, minorities should not pass the test at significantly lower rates than non-minorities, unless the test is job-related and consistent with business necessity and no viable alternatives exist. Fearing such a disparate impact lawsuit, the city began examining the test.

As it predicted, minority firefighters threatened to sue if the city relied on the test. However, non-minority employees also threatened to sue if the city ignored the test results. Facing this no-win situation, the city ultimately decided to discard the test results and not to promote anyone.

White and Hispanic employees sued, arguing that the city’s decision amounted to intentional discrimination against them on the basis of their race. In its decision yesterday, a majority of the Supreme Court agreed with them. According to the Court, the city had discarded the results solely because the higher-scoring candidates were white and doing so was illegal discrimination—unless the city had a justification.  Notably, the Court said that a mere fear of being sued by the non-white firefighters (or a desire to make sure that non-white firefighters were adequately represented in the workforce) was not enough to justify discarding the results.  Instead, the Court found that the city would have had to possess a significant amount of evidence that it really would have been liable to the minority firefighters under a disparate impact theory.  Unfortunately for the city, the Supreme Court ruled that it lacked such evidence and ruled in favor of the white and Hispanic firefighters.

If an employer suspects that its selection or testing procedures are screening out minorities at a disproportionate rate, Ricci v. DeStefano teaches that the solution is not to disregard or adjust the results, but instead to consult counsel about the validity of the procedure and the possibility of fixing the procedure in the future. Beyond that, it also sends a strong message to employers going forward: As currently constituted, a majority of the Supreme Court takes a dim view of attempts to, in its view, “manipulate” the hiring or promotion process to achieve a racially “balanced” workforce. Such actions, according to the Supreme Court, may have their genesis in good intentions, but can amount to illegal reverse discrimination.

Please contact Tami Earnhart, or any other member of our Labor and Employment Practice Group, about this or any other employment-related issues.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.