June 29, 2009

Supreme Court Decides Ricci v. DeStefano

On June 29, the Supreme Court decided Ricci v. DeStefano, No. 07-1428.

In 2003, 118 New Haven firefighters took examinations to qualify for promotions. White and Hispanic candidates outperformed minority candidates on the exam. Vigorous debate ensued. Some argued that the city should throw out the test results because the test was discriminatory; they threatened a disparate-impact lawsuit against the city if the test results held sway. Others argued that the tests were fair; they threatened a disparate-treatment lawsuit against the city if the results were discarded.

The city decided to throw out the test results and not certify the examinations. And it indeed received a Title VII lawsuit for disparate treatment of the white and Hispanic firefighters. The District Court granted summary judgment in favor of the city, holding that the city's fear of facing a disparate-impact lawsuit over the testing justified the city's use of a race-conscious remedy. The Second Circuit affirmed.

The Supreme Court reversed in a 5-4 decision.

The Court started from the proposition that the city's actions—no matter how well intentioned—clearly violated Title VII's prohibition on taking adverse employment actions because of race. Thus, the case resolved to whether the city had a valid defense.

The city argued that it engaged in race-based discrimination because it feared that if it certified the tests it would be sued for disparate-impact discrimination under Title VII. The Court responded by looking to its race-discrimination cases under the Equal Protection Clause and applying the test that those cases have applied: the government can take race-based actions to remedy past discrimination only if there is a "strong basis in evidence" that the remedial actions were necessary. In this case, then, the city could justify its actions only if it could show a "strong basis in the evidence" that the test was deficient and that discarding the results was necessary to avoid violating the disparate-impact provision of Title VII.

The Court held there was no support in the record for concluding the city had a strong basis in the evidence to believe the tests were inadequate—thus leading to disparate-impact liability under Title VII. It held that while there was no dispute that the city was faced with a prima facie case of disparate-impact liability based on the outcome of the tests, that is not enough to constitute a "strong basis in evidence" to believe that it would have been held liable.

To prove a disparate-impact case, the minority firefighters would have had to show that the examinations were not job related and consistent with business necessity, or that there was an equally-valid, less-discriminatory alternative that served the city's needs but the city refused to adopt it. The Court held that the minority firefighters could prove neither of these things. The Court concluded that "[f]ear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."

Justice Scalia's concurring opinion hints at a potential future showdown over the constitutionality of the disparate-impact provisions of Title VII. Justice Scalia commented that "Title VII's disparate-impact provisions place a racial thumb on the scales" and that doing so creates a potential problem with the Equal Protection Clause of the Constitution. The majority specifically avoided that question in its opinion by holding that the city would not have run afoul of the disparate-impact provisions of Title VII, so there was no need to decide whether those provisions might require an employer to engage in race-based discrimination, and whether that would be constitutional.

Justice Kennedy delivered the opinion of the Court, in which the chief justice and Justices Scalia, Thomas, and Alito joined. Justices Scalia and Alito each filed a concurring opinion. Justice Ginsburg filed a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined.

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