Ricci v. DeStefano: Firefighters suffered reverse discrimination by city in violation of Title VII
Introduction
In a split decision that broke along conservative and liberal lines, the Supreme Court found that the city of New Haven engaged in reverse discrimination and violated Title VII of the Civil Rights Act of 1964 when it tossed out a qualification test that generated a sharp disparate impact in favor of white applicants over minorities. The case, Ricci v. DeStefano, ___ U.S. ____, 129 S.Ct. 2658 (2009), has been hailed as one of the most important employment law decisions in recent years, magnifying the debate about how far an employer can and should go to avoid a discriminatory impact.
Background
The city of New Haven Fire Department (the "City") administered written and oral exams to firefighters to determine qualification for promotion within the department. The City went to great lengths to devise a written exam that would be fair to all and free of any bias.
Nevertheless, the test generated a significant disparate impact. Of the 118 firefighters who took the exam in November and December 2003, about twice as many white applicants passed as compared to black applicants, and no passing black applicants scored high enough to be considered for promotion. Only two Hispanic applicants passed and scored high enough to be considered for promotion. By contrast, seventeen white test takers passed with high enough scores to be considered for promotion.
The African-American test-takers indicated that they might sue the City for discrimination, alleging that the test had a disparate impact against minorities, as evidenced by the white test-takers' outperformance of the minorities. In an attempt to avoid such litigation, the City decided to throw out the whole test and all results, promoting no one.
Eighteen firefighters who passed the test with high enough scores to be considered for promotion -- 17 white and one Hispanic applicant – sued the City, claiming that the city discriminated against them regarding their potential promotions on the basis of race by throwing out the test without a strong basis in evidence. The plaintiffs claimed that by throwing out the test and its results, the city took action that amounted to a "disparate treatment" in violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment.
The District Court granted the City's motion for summary judgment and the Second Circuit panel that included soon-to-be-Justice Sonia Sotomayor affirmed the District Court ruling without an opinion. After one Second Circuit judge requested a rehearing en banc, the panel withdrew its original order and replaced it with a per curiam opinion that was eight sentences long. The Second Circuit panel opinion expressed sympathy for the plaintiffs, but determined that the City was acting to "fulfill its obligations under Title VII" and that the District Court's decision was "thorough, thoughtful, and well-reasoned." Ricci v. DeStefano, 530 F.3d 87 (2nd Cir. 2008). In a 7-6 decision, the Second Circuit judges denied the request for a rehearing en banc.
The Supreme Court granted certiorari and heard oral arguments on April 22, 2009. It issued its 5-4 opinion on June 29, 2009, immediately before Sotomayor's confirmation hearings began. The opinion can be found at Ricci v. DeStefano, ___ U.S. ____, 129 S.Ct. 2658 (2009).
The City engaged in unjustified disparate treatment discrimination
Justice Kennedy wrote for the 5-4 majority that also included Justices Roberts, Scalia, Thomas, and Alito. The majority determined that the City's fear of being sued by black applicants on a claim of disparate impact discrimination was not strong enough to justify taking an action that constituted disparate treatment based on race. In order to justify such race-based action, an employer must "demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute" and the City could not meet that standard. 129 S.Ct. at 2664.
The majority first established that the City's actions amounted to disparate treatment when it threw out the exam and its results, contrary to the finding of the District Court. The Court stated that the City engaged in "express, race-based decisionmaking" when it tossed the test because of the statistical disparity in results. Id. at 2673. The District Court had argued that the City's motive in trying "to avoid making promotions based on a test with a racially disparate impact… does not, as a matter of law, constitute discriminatory intent." But this reasoning focuses on the City's objective without considering the City's actions in reaching that objective.
The majority then considered the conflict in this case between the disparate-impact and disparate-treatment claims – the City engaged in disparate-treatment conduct in an effort to avoid disparate-impact litigation. The Court examined Title VII to determine whether the disparate impact provisions of the statute enabled any justification for disparate treatment violations. The majority looked to analogous Equal Protection cases for guidance, determining that, in cases where disparate impact and disparate treatment claims collide, disparate treatment justifications may be allowed if grounded in "strong basis in evidence." Id. at 2675 - 2676.
The majority wrote "once [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence or an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, section 2000-2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race." Id. at 2677.
The Court noted that the purpose of Title VII is to "promote hiring on the basis of job qualifications, rather than on the basis of race or color." Id. at 2675.The "express, race-based decision-making" made by the City when it threw out the exam and its results because white applicants tended to perform better on the test than minorities "violates Title VII's command that employers cannot take adverse employment actions because of an individual's race." Id. at 2673.
The City argued that its good faith belief that its actions were necessary to comply with the disparate-impact provisions of Title VII should be enough to justify race-conscious conduct. But the Court rejected this argument, stating that such a policy would encourage employers to take race-based action at the slightest hint of potential disparate impact, essential creating a quota system in which the "'focus on statistics… could put undue pressure on employers to adopt inappropriate prophylactic measures.'" Id. at 2675 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988)).
Instead of taking inappropriate race-based actions in a desperate attempt to avoid all potential claims of disparate impact, an employer can only engage in disparate treatment conduct if there is a "strong basis in evidence" that doing so is necessary to avoid liability for disparate impact violations. In this case, the City acted not on a belief that it would actually be held liable for disparate impact violations, but out of fear that it would be sued on disparate impact claims.
"There is no evidence – let alone the required strong basis in evidence – that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City," wrote the majority. "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." Id. at 2681.
The dissent focused on the motive for the action in light of Title VII's purpose
Justice Ruth Bader Ginsberg authored the dissent, in which she was joined predictably by the other more liberal judges – Stevens, Breyer and Souter -- and she took the uncommon step of reading her dissent from the bench.
Ginsberg stated that the case must reviewed against the backdrop of the years of entrenched inequality, and that the majority's opinion "breaks the promise … that groups long denied equal opportunity would not be held back by tests ‘fair in form, but discriminatory in operation.'" Id. at 2696 (citing Grigg v. Duke Power, 401 U.S. 424,431 (1971)). Ginsberg argued that the City's decision to invalidate a test was rooted in a good-faith, non-discriminatory spirit and a desire to avoid a lawsuit by minority applicants and therefore it cannot be fairly characterized as race-based discrimination.
CONCLUSION
The Ricci case makes the statement that equality under the law means refusing to top the scales in favor of any particular race over another. Title VII was enacted to prohibit all workplace discrimination based on race, not just discrimination against minorities.
But that statement does not give employers a comfortable, easy bright line to follow in cases where disparate impact and disparate treatment issues collide. In this case, the City thought about promotion qualifications and developed a process that would test for those qualifications in neutral, fair ways. The problem, however, was that after the tests were administered, the statistical results revealed an unintentional disparate impact. Whether the City kept the test and made the resulting promotions or threw out the test and made no promotions, it faced Title VII litigation either way. Rather that rely on the integrity of its test, the City relied instead on the statistics as justification for voiding the test. But the City's duty was to determine whether its test and other evidence really did strong indicate a disparate-impact violation that could expose it to liability. The full complement of evidence did not indicate a likelihood of liability and the City was not entitled to disregard the test results merely because of the racial disparity in the results – a determination that is obviously difficult to make, as even the Justices and Courts are sharply split on the issue.
So while employers still have the legal responsibility to find nondiscriminatory solutions in hiring, promoting, and compensating employees, they may have a difficult time figuring out how to toe the line between justifiable conduct and that which violates Title VII.
Finally, while Justice Sotomayor's joining the Court would likely not have changed the outcome of this case – her vote would most likely replace that of Souter, who joined in the dissent – this closely-split case magnifies the importance of the next Supreme Court nominee – if he or she is also liberal-leaning, cases like this one would likely tip the other way.
In a split decision that broke along conservative and liberal lines, the Supreme Court found that the city of New Haven engaged in reverse discrimination and violated Title VII of the Civil Rights Act of 1964 when it tossed out a qualification test that generated a sharp disparate impact in favor of white applicants over minorities. The case, Ricci v. DeStefano, ___ U.S. ____, 129 S.Ct. 2658 (2009), has been hailed as one of the most important employment law decisions in recent years, magnifying the debate about how far an employer can and should go to avoid a discriminatory impact.
Background
The city of New Haven Fire Department (the "City") administered written and oral exams to firefighters to determine qualification for promotion within the department. The City went to great lengths to devise a written exam that would be fair to all and free of any bias.
Nevertheless, the test generated a significant disparate impact. Of the 118 firefighters who took the exam in November and December 2003, about twice as many white applicants passed as compared to black applicants, and no passing black applicants scored high enough to be considered for promotion. Only two Hispanic applicants passed and scored high enough to be considered for promotion. By contrast, seventeen white test takers passed with high enough scores to be considered for promotion.
The African-American test-takers indicated that they might sue the City for discrimination, alleging that the test had a disparate impact against minorities, as evidenced by the white test-takers' outperformance of the minorities. In an attempt to avoid such litigation, the City decided to throw out the whole test and all results, promoting no one.
Eighteen firefighters who passed the test with high enough scores to be considered for promotion -- 17 white and one Hispanic applicant – sued the City, claiming that the city discriminated against them regarding their potential promotions on the basis of race by throwing out the test without a strong basis in evidence. The plaintiffs claimed that by throwing out the test and its results, the city took action that amounted to a "disparate treatment" in violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment.
The District Court granted the City's motion for summary judgment and the Second Circuit panel that included soon-to-be-Justice Sonia Sotomayor affirmed the District Court ruling without an opinion. After one Second Circuit judge requested a rehearing en banc, the panel withdrew its original order and replaced it with a per curiam opinion that was eight sentences long. The Second Circuit panel opinion expressed sympathy for the plaintiffs, but determined that the City was acting to "fulfill its obligations under Title VII" and that the District Court's decision was "thorough, thoughtful, and well-reasoned." Ricci v. DeStefano, 530 F.3d 87 (2nd Cir. 2008). In a 7-6 decision, the Second Circuit judges denied the request for a rehearing en banc.
The Supreme Court granted certiorari and heard oral arguments on April 22, 2009. It issued its 5-4 opinion on June 29, 2009, immediately before Sotomayor's confirmation hearings began. The opinion can be found at Ricci v. DeStefano, ___ U.S. ____, 129 S.Ct. 2658 (2009).
The City engaged in unjustified disparate treatment discrimination
Justice Kennedy wrote for the 5-4 majority that also included Justices Roberts, Scalia, Thomas, and Alito. The majority determined that the City's fear of being sued by black applicants on a claim of disparate impact discrimination was not strong enough to justify taking an action that constituted disparate treatment based on race. In order to justify such race-based action, an employer must "demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute" and the City could not meet that standard. 129 S.Ct. at 2664.
The majority first established that the City's actions amounted to disparate treatment when it threw out the exam and its results, contrary to the finding of the District Court. The Court stated that the City engaged in "express, race-based decisionmaking" when it tossed the test because of the statistical disparity in results. Id. at 2673. The District Court had argued that the City's motive in trying "to avoid making promotions based on a test with a racially disparate impact… does not, as a matter of law, constitute discriminatory intent." But this reasoning focuses on the City's objective without considering the City's actions in reaching that objective.
The majority then considered the conflict in this case between the disparate-impact and disparate-treatment claims – the City engaged in disparate-treatment conduct in an effort to avoid disparate-impact litigation. The Court examined Title VII to determine whether the disparate impact provisions of the statute enabled any justification for disparate treatment violations. The majority looked to analogous Equal Protection cases for guidance, determining that, in cases where disparate impact and disparate treatment claims collide, disparate treatment justifications may be allowed if grounded in "strong basis in evidence." Id. at 2675 - 2676.
The majority wrote "once [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence or an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, section 2000-2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race." Id. at 2677.
The Court noted that the purpose of Title VII is to "promote hiring on the basis of job qualifications, rather than on the basis of race or color." Id. at 2675.The "express, race-based decision-making" made by the City when it threw out the exam and its results because white applicants tended to perform better on the test than minorities "violates Title VII's command that employers cannot take adverse employment actions because of an individual's race." Id. at 2673.
The City argued that its good faith belief that its actions were necessary to comply with the disparate-impact provisions of Title VII should be enough to justify race-conscious conduct. But the Court rejected this argument, stating that such a policy would encourage employers to take race-based action at the slightest hint of potential disparate impact, essential creating a quota system in which the "'focus on statistics… could put undue pressure on employers to adopt inappropriate prophylactic measures.'" Id. at 2675 (citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988)).
Instead of taking inappropriate race-based actions in a desperate attempt to avoid all potential claims of disparate impact, an employer can only engage in disparate treatment conduct if there is a "strong basis in evidence" that doing so is necessary to avoid liability for disparate impact violations. In this case, the City acted not on a belief that it would actually be held liable for disparate impact violations, but out of fear that it would be sued on disparate impact claims.
"There is no evidence – let alone the required strong basis in evidence – that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City," wrote the majority. "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." Id. at 2681.
The dissent focused on the motive for the action in light of Title VII's purpose
Justice Ruth Bader Ginsberg authored the dissent, in which she was joined predictably by the other more liberal judges – Stevens, Breyer and Souter -- and she took the uncommon step of reading her dissent from the bench.
Ginsberg stated that the case must reviewed against the backdrop of the years of entrenched inequality, and that the majority's opinion "breaks the promise … that groups long denied equal opportunity would not be held back by tests ‘fair in form, but discriminatory in operation.'" Id. at 2696 (citing Grigg v. Duke Power, 401 U.S. 424,431 (1971)). Ginsberg argued that the City's decision to invalidate a test was rooted in a good-faith, non-discriminatory spirit and a desire to avoid a lawsuit by minority applicants and therefore it cannot be fairly characterized as race-based discrimination.
CONCLUSION
The Ricci case makes the statement that equality under the law means refusing to top the scales in favor of any particular race over another. Title VII was enacted to prohibit all workplace discrimination based on race, not just discrimination against minorities.
But that statement does not give employers a comfortable, easy bright line to follow in cases where disparate impact and disparate treatment issues collide. In this case, the City thought about promotion qualifications and developed a process that would test for those qualifications in neutral, fair ways. The problem, however, was that after the tests were administered, the statistical results revealed an unintentional disparate impact. Whether the City kept the test and made the resulting promotions or threw out the test and made no promotions, it faced Title VII litigation either way. Rather that rely on the integrity of its test, the City relied instead on the statistics as justification for voiding the test. But the City's duty was to determine whether its test and other evidence really did strong indicate a disparate-impact violation that could expose it to liability. The full complement of evidence did not indicate a likelihood of liability and the City was not entitled to disregard the test results merely because of the racial disparity in the results – a determination that is obviously difficult to make, as even the Justices and Courts are sharply split on the issue.
So while employers still have the legal responsibility to find nondiscriminatory solutions in hiring, promoting, and compensating employees, they may have a difficult time figuring out how to toe the line between justifiable conduct and that which violates Title VII.
Finally, while Justice Sotomayor's joining the Court would likely not have changed the outcome of this case – her vote would most likely replace that of Souter, who joined in the dissent – this closely-split case magnifies the importance of the next Supreme Court nominee – if he or she is also liberal-leaning, cases like this one would likely tip the other way.
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