Not according to Justice Kennedy and the majority of the U.S. Supreme Court. In a much publicized case (Ricci v. Destefano) that started in 2003, the U.S. Supreme Court has held that certain white and Hispanic firefighters who scored highest on a promotional exam were entitled to summary judgment in their claim of race discrimination. This ruling reverses the decisions of the Second Circuit and the District of Connecticut. Previously, courts had held that it was lawful for an employer to consciously attempt to make a test more fair to minority test takers, and also that an employer could lawfully base promotions on both test results and factors that would lead to hiring a more diverse team of employees. Despite the fact that the City of New Haven was attempting to avoid a racist hiring result because it believed its test to be biased, the Supreme Court held that it had violated the Civil Rights Act of 1964. In so doing, it established a new rule: a government employer attempting to avoid a disparate impact lawsuit may avoid liability only when it can show that the threatened lawsuit against it has a “strong basis in evidence.” This writer has no idea how an employer will make that determination going forward. Any thoughts?
While there are troubling aspects of the Court’s opinion as further discussed below, let there be no doubt that the Court recognizes employment discrimination remains a serious problem in our society, and that public and private employers have an ongoing responsibility to take proactive voluntary measures to address it. The Court reaffirms its position and “Congress’s intent that voluntary compliance be the preferred means of achieving the objectives of Title VII.” In doing so, however, the Court suggests for the first time that the disparate treatment and disparate impact provisions of Title VII “conflict” with rather than complement each other, and attempts to reconcile these provisions with the new “strong-basis-in evidence” standard. Unfortunately, this new threshold only serves to place additional obstacles in the path of equal employment opportunity and voluntary efforts by employers to comply with the nation’s anti-discrimination laws. As Justice Ginsburg notes in her dissent, this new higher burden “makes voluntary compliance a hazardous venture.”