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?
Reprinted below is the position of the National Employment Lawyers Association on this case:
NELA Statement On Ricci v. DeStefano
Recently, the United States Supreme Court issued its decision in Ricci v. DeStefano, No. 07-1428 (June 29, 2009). The 5-4 majority, in an opinion by Justice Kennedy (joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito), held that the City of New Haven violated Title VII of the Civil Rights Act of 1964 when it discarded the results of civil service examinations that had a significant adverse impact against African-American and Latino candidates for promotion to fire lieutenant and captain. The majority concluded that the City’s decision to discard the test results would have been in compliance with Title VII if the City had a “strong-basis-in evidence” for believing that it would have been subject to disparate impact liability in a suit brought by non-white candidates, but that the record in this case failed to satisfy this standard. Justices Ginsburg, Stevens, Souter, and Breyer dissented, and would have held that the City’s actions complied with Title VII.
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.”
Of equal concern is the unnecessary overreaching by the Court in applying the new strong-basis-in evidence standard to the facts of the case and determining that the City of New Haven did not meet it rather than allowing the District Court to make that determination on remand. As Justice Ginsburg states, “The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strong-basis-in evidence standard. When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance.” NELA calls upon President Obama and appropriate executive branch agencies (such as the U.S. Equal Employment Opportunity Commission) to provide swift guidance to employers on how to deal with the new standard announced by the Court in accordance with their obligations under the law.
Regardless of which party one supports in this matter, it remains clear that genuine issues of material facts are in dispute in this case. Indeed, references to what a reasonable jury could have concluded appear in the Court’s opinion, Justice Alito’s concurring opinion and Justice Ginsburg’s dissenting opinion. Given that a reasonable jury could arrive at differing outcomes, we believe that the issue of whether the City of New Haven violated Title VII by discarding the test results should properly have been decided by a jury rather than the courts.
