In Ricci v. DeStefano, a much-anticipated decision announced on the last day of its current term, the United States Supreme Court held that the City of New Haven violated Title VII when it threw out the results of a promotional examination that had a disparate impact on minority firefighters.  The Supreme Court’s decision is predicted to have far-reaching consequences in employers’ hiring and promotional practices. 

The New Haven Connecticut Fire Department administered civil service examinations for applicants for the positions of captain and lieutenant.  Of the 118 firefighters who took the exam, 26 were African-American, 23 were Hispanic and the remainder of which were Caucasian.  Of that applicant group, no African-Americans and only 2 Hispanics scored well enough to be eligible for promotions. 

After the New Haven Civil Service Board failed to certify the results, 19 Caucasian firefighters and 1 Hispanic firefighter sued the City of New Haven in federal district court alleging that they were denied promotions based upon race in violation of Title VII.  In response, the City of New Haven argued that its action was proper as validating the results would have had a disparate impact on minorities and thus opened the City to potential liability under Title VII, which prohibits employment decisions that are facially neutral, but have a discriminatory effect, as well as those that are intentionally discriminatory. 

The federal district court agreed with the City, dismissing the case and holding that employers cannot use a test in hiring decisions that has a “disproportionate racial impact” on minorities, fewer of whom might be accepted for promotions as a result.  A three-judge panel of the Second Circuit Court of Appeals, which included Supreme Court-nominee Sonya Sotomayor, affirmed the federal district court’s ruling. 

The Supreme Court reversed, holding that the City’s action, in discarding the results of the examination, violated Title VII, in that it was “intentional discrimination” on the basis of race or “disparate treatment”, which is specifically prohibited by the statute.  The Court went on to state that fear of litigation alone cannot justify an employer’s reliance upon race to the detriment of individuals who passed the examination and qualified for promotions.  Furthermore, before an employer can discard such an examination, it must have “a strong basis in evidence” to believe that it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. 

The Supreme Court found that the City did not have a “strong basis in evidence” for its belief that it would be subject to disparate impact liability as the City would only be liable if the exam at issue was not job-related and consistent with business necessity or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt.  Based on the evidentiary record, the Court determined that there was no “objective, strong basis” for deciding that the examination was deficient in either respect. 

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.