New York Law School

Endangering Title VII

On June 29, 2009, the last day of the United States Supreme Court’s 2008–09 term, the Court rendered the much anticipated decision in Ricci v. DeStefano, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009). Ricci was quickly dubbed the “white firefighter’s case” by many, however, the case involved much more than the firefighters’ asserted right to a promotion.

Ricci involved a promotional examination administered by New Haven, Connecticut to members of the New Haven Fire Department to identify those applicants who merited promotions. Knowing that promotional examinations have historically had a disparate-impact on minorities, the City hired a professional testing firm, Industrial/Organizational Solutions Inc. (“IOS”) to develop a racially-neutral exam. When the results of the examination were released the City realized that its efforts to ensure impartiality were not realized, as the results demonstrated stark racial disparities. Specifically, no African-American candidate did well enough on the exam to qualify for a promotion and only two Hispanic candidates were eligible for a promotion based on their score. After careful consideration, including numerous hearings by the New Haven Civil Service Board, the City decided not to certify the results of the examination for fear that they would be sued by minority test takers because of the disparate impact of the examinations and the existence of less discriminatory alternatives to identify promotion candidates. The City immediately went back to the drawing board to develop a testing mechanism that would not produce such adverse results.

John DeStefano, Mayor of the City of New Haven was subsequently sued by petitioners, seventeen white firefighters and one Hispanic firefighter for allegedly discriminating against them because of their race in violation of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII) and the Equal Protection Clause of the Fourteenth Amendment U.S. CONST amend. XIV. Petitioners argued that the City intentionally discriminated against them on the basis of race in violation of the disparate treatment provision of Title VII. The crux of Petitioner’s argument was that the City refused to certify the results because the higher scoring candidates were white, and this refusal deprived them of a promotion thus intentionally discriminating against them.

In true form, the Court rendered a 5 to 4 decision holding that the City’s action in discarding the tests violated Title VII. Although Title VII requires that employers consider the effect that their employment practices will have on members of different races and encourages employers to voluntarily comply with its mandates, Justice Kennedy, who delivered the Court’s opinion, reasoned that the decision not to certify the test results constituted impermissible race-based action. 129 S. Ct. 2658, 2664 174 L. Ed 2d 490, 505. This reasoning almost renders null the disparate-impact provision of Title VII which allows a plaintiff to challenge an employer’s action which has an adverse impact on a particular segment of the work force.

The Court’s decision is unsettling for a number of reasons. It fails to provide employers with the much needed clarity required when making employment decisions that might have an adverse impact on members of different races. Prior to this decision, it was clear that if a particular course of action will have an adverse impact on a protected group and that action was not required by a business necessity and there was a less discriminatory alternative available that action course of action was to be abandoned. 42 U.S.C. § 2000e-2(k)(1)(A)(i). This is no longer the case. Employers must now demonstrate “a strong basis in evidence” that they will be subject to disparate-impact liability before they can act. 129 S. Ct. 2658, 2664 174 L. Ed. 2d 490, 505. This vague standard will undoubtedly spur more litigation as employers struggle to decipher what “a strong basis in evidence” exactly means. Furthermore, employers must now establish a Title VII claim against themselves before they can act.

Although the majority correctly avoided the constitutional question, Justice Scalia authored a concurring opinion addressing the issue. Justice Scalia’s opinion poses the question: “[w]hether or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” Id. at 2682, 174 L. Ed. 2d 490, 515. Justice Scalia’s assertion that “Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies and to make decisions based on (because of) those racial outcomes” mischaracterizes the Act. Id. The disparate-impact provision of Title VII simply allows for and encourages employers to be cognizant of the racial impact of their business practices so that they can craft fair assessment procedures that gives everyone equal opportunity. Justice Scalia callously classified the City’s action as racial decision-making. This contention disregards the fact that race consciousness was deemed necessary by both the Court and Congress in order remove artificial, arbitrary, and unnecessary barriers to employment when such barriers operate invidiously to discriminate on the basis of racial or other impermissible classifications. The disparate impact provision is a byproduct of the Court’s decisions in Griggs v. Duke Power Co., 401 U.S. 424 (1971) and Ward’s Cove Packing Co. v. Antonio, 490 U.S. 642 (1989), realizing the need to address and prevent discriminatory practices that are fair in form but discriminatory in operation. In order to address these practices, employers like the New Haven Fire Department must consider the racial implications of their actions and conform their practices to comply with the mandates of Title VII.

Not surprisingly, the Court’s decision was sharply divided along ideological lines with Justice Ginsburg writing the dissent. In her dissent, Justice Ginsburg highlighted a crucial point that the majority ignored, namely that the white firefighters who scored high on the promotional exam had no vested right to a promotion. 129 S.Ct. at 2690 The City did not grant promotions then decide to take them away; rather the City opted to go back to the drawing board and devise a promotional exam which would not have an adverse impact on minority applicants. Justice Ginsburg’s opinion appropriately notes that the majority’s decision places employers in the untenable position of having to open themselves up to Title VII liability in order to comply with the Equal Protection Clause.

Ricci was a hard case with bad facts; however, the decision needlessly resulted in bad law. On June 29, 2009, the Court disincentivized honest employers from evaluating their business practices to ensure compliance with Title VII and provided “a strong basis in evidence” shield to those employers who neglect to ensure that their employment practices do not have discriminatory effects. It remains to be seen what effects Ricci will have on employment practices and other legislation that requires race consciousness, but one thing is certain, the Court has endangered one of the foremost pieces of civil rights legislation.

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