On June 29, 2009, the United States Supreme Court held in a 5-4 ruling that
“fear of litigation alone cannot justify an employer’s reliance on race” to the
detriment of other candidates for promotion.
Ricci v. DeStefano, No. 07-1428 (June 29, 2009).
This ruling overturns Supreme Court Justice nominee Judge Sotomayor’s
previous Second Circuit decision, which ruled in favor of the City of New Haven.
The ruling also touches off what will likely be a new round of political debate
about Judge Sotomayor’s qualifications for the Justice appointment.
As summarized in our
article, Ricci involves a reverse race discrimination action by a
group of firefighter plaintiffs who scored high on promotional tests
administered by the City of New Haven’s Civil Service Board. The Board later
questioned the results after analysis showed that white promotional candidates
greatly outperformed minority candidates on the same test. Faced with political
and legal arguments for and against certifying the results (and likely
litigation regardless), the Board and the City of New Haven ultimately threw out
the results, citing the test’s alleged statistical, disparate racial impact.
On appeal to the Second Circuit Court of Appeals and the Supreme Court, the
plaintiff firefighters argued, among other things, that rejecting the test
results violated Title VII. The City argued that the statistical adverse impact
ratios for minority test-takers were too low to pass legal scrutiny, and this
was enough alone to invalidate the tests and start over.
Recognizing the difficult position faced by the City and the Civil Service
Board, the District Court held that the Board’s decision to throw out the test
results was a race-neutral action given that all tests were discarded and no one
was promoted. In other words, there was no “race-norming” because the test
results were discarded, not altered. On appeal, Judge Sotomayor and two other
Second Circuit panel members tersely upheld the ruling in a one-paragraph
decision, finding that the Board was “in the unfortunate position of having no
Supreme Court Decision
In an opinion authored by Justice Anthony Kennedy, the Supreme Court
reversed, holding that “[u]nder Title VII, before an employer can engage in
intentional discrimination for the asserted purpose of avoiding or remedying an
unintentional disparate impact, the employer must have a strong basis in
evidence to believe it will be subject to disparate-impact liability if it
fails to take the race-conscious, discriminatory action.” (Emphasis added).
The City failed to meet that burden. Specifically, the Court noted that:
- Although the test results may have established a
prima facie case of disparate impact liability, that was merely a threshold
- Liability could only arise upon the additional showing that the exams in
question were not job related and consistent with business necessity, or
that an equally valid, less-discriminatory alternative existed but was not
According to the Court, the City erred by focusing on the numbers over the
latter two elements. For example, the Court’s majority noted that:
- “There is no genuine dispute that the examinations were job-related and
consistent with business necessity.”
- “The City turned a blind eye to evidence that supported the exams’
- The City did not request an EEOC guideline-compliant validation study
from the test’s creators, despite the fact that such a report was readily
available as part of the City’s testing contract.
- The City and the Board entertained only cursory suggestions of
alternatives, such as changing the weight of oral and written components,
banding scores or using an assessment center process.
Because the City failed to look at the full framework of a potential
disparate-impact claim, the Court concluded that there was no “strong basis in
evidence” that discarding the test results was truly necessary to avoid Title
VII liability. The Court further held that the City’s alleged good faith
concerns about disparate-impact claims alone could not justify its actions.
According to the Court, permitting disparate-treatment violations based
on such fears “would encourage race-based action at the slightest hint of
A minimal standard could cause employers to discard the results of lawful
and beneficial promotional examinations even where there is little if any
evidence of disparate-impact discrimination. That would amount to a de
facto quota system, in which a ‘focus on statistics . . . could put
undue pressure on employers to adopt inappropriate prophylactic measures’. .
. . Even worse, an employer could discard test results (or other employment
practices) with the intent of obtaining the employer’s preferred racial
Although the decision leaves open the question of how far an employer must go
to demonstrate a “strong basis in evidence” in the context of testing, it is
clear that such an inquiry entails looking beyond a mere prima facie case. It is
also likely that some of the Court’s language in the ruling may be interpreted
as a slap at Judge Sotomayor’s previous decision. For example, the majority
On the record before us, there is no genuine dispute that the City
lacked a strong basis in evidence to believe it would face disparate-impact
liability if it certified the examination results. In other words, 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.
Having said this, the more important, outstanding issue is whether Ricci is
merely baiting the hook for later, larger constitutional fish – the striking
down of the disparate impact liability theory of discrimination itself as
unconstitutional. As Justice Scalia noted in his concurring opinion:
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. That type of racial decision making
is, as the Court explains, discriminatory. . . . To be sure, the
disparate-impact laws do not mandate imposition of quotas, but it is not
clear why that should provide a safe harbor.
Justice Scalia further concluded that:
The Court’s resolution of these cases makes it unnecessary to resolve
these matters today. But the war between disparate impact and equal
protection will be waged sooner or later, and it behooves us to begin
thinking about how – and on what terms – to make peace between them.
For assistance in analyzing the impact of the Ricci decision on your
organization’s current hiring, promotion, reduction in force and other
employment practices, please contact the authors or any member of McGuireWoods’
Labor & Employment or