Legal News

?Strong Basis In Evidence' ? High Court Establishes New Standard For Discard Of Administered Promotional Examinations

By Brian Harris

The U.S. Supreme Court?s recent decision in Ricci v. DeStefano generated significant headlines and interest as a result of its subject matter (white firefighters alleging discrimination in promotional testing) as well as its impact on the confirmation hearings of U.S. Supreme Court nominee Sonia Sotomayor.  As a 2nd U.S. Circuit Court of Appeals judge, Sotomayor joined in a cursory opinion upholding the decision of the city of New Haven, Conn., to scrap test results it perceived as racially biased. Notwithstanding the political attention the case received, the practical effect of Ricci is that it raises more questions than it answers.

In 2003, New Haven administered examinations to city firefighters seeking promotion to the ranks of lieutenant and captain. A total of 118 firefighters took the tests, some at great personal cost in terms of purchasing or adapting study materials (including one firefighter who paid a neighbor to read the study materials onto audio tapes for him because of a reading disability). Although New Haven went to great lengths to ensure that the tests were not racially biased, the results indicated that virtually no minorities would be eligible for promotion to any of the 15 vacancies.

The city recognized the racial disparity and was alerted by its counsel of the possibility of a Title VII disparate impact claim (i.e., a claim that the test, while neutral on its face, nevertheless had a racially discriminatory impact on minority candidates) by minority firefighters. The city held numerous public hearings on whether the test results should be certified. At these hearings, which were described as both heated and politically divisive, the contractor that created the tests stated that they were free of bias. However, another witness ? a competitor of that contractor ? testified that the tests showed more disparity than was typical. The city heard further testimony from witnesses both for and against certification. Multiple witnesses threatened legal action if the tests were ? or were not ? certified. Ultimately, the city?s civil service officials voted not to certify.

A group of white and Hispanic fire fighters who scored well on the test sued New Haven and a handful of city officials, alleging race discrimination in violation of Title VII and the Equal Protection Clause of the U.S. Constitution. The city defended its actions in discarding the test results on the grounds that it had a good faith belief that if it certified the test results, it would have been subject to a disparate impact claim by minority firefighters. The plaintiff firefighters, however, argued that the city did not have sufficient evidence to perceive a legitimate threat of a disparate impact claim; they contended, rather, that the city caved to political pressure. The district court granted summary judgment for the city and the 2nd Circuit affirmed.

The Supreme Court reversed the decision, finding that New Haven violated Title VII?s prohibition on intentional ?disparate treatment? discrimination when it threw out the test results on the basis of nothing more than the race of the successful applicants. The Court noted that all evidence indicated that the city?s decision not to certify the test results was based solely on the racial disparity among successful and unsuccessful applicants. The decision was, therefore, race-based and, without some other justification, violated Title VII?s prohibition on an employer taking action ?because of race.? The Court noted that the two lower courts ignored this principle, focusing instead on the city?s motivation ? that is, its objective of avoiding disparate impact liability. But those courts ignored the city?s actions, which invariably violated Title VII because they were taken ?because of race,? according to the Court.

Therefore, the question before the Court was ?whether the purpose to avoid disparate impact liability excuses what otherwise would be prohibited disparate treatment discrimination.? The Court first rejected the plaintiff firefighters? ?strict approach,? which argued that it is not permissible under any circumstances for an employer to take a race-based action, even if the intent in doing so is to avoid disparate impact liability. This approach, the Court held, ignores Congress?s codification of the disparate impact provisions of Title VII in the Civil Rights Act of 1991.

For the second half of this blog, check out The Legal Intelligencer?s blog this week.

Ryan J. Fleming, a member of Stradley Ronon Stevens & Young's employment and labor practice group, focuses on employment litigation including discrimination and wrongful discharge claims and counsels employers on a variety of employment-related issues.

Blog postings are not legal advice and do not create an attorney-client relationship. Materials posted here represent the views of the poster or commenter and not the views of Stradley Ronon Stevens & Young, LLP or its clients.

Ryan J. Fleming
Stradley Ronon Stevens & Young, LLP
rfleming@stradley.com
www.stradley.com

Full post as published by The Legal Intelligencer Blog on August 10, 2009 (boomark / email).