Supreme Court Holds That Disregarding Test Results Discriminated Against White Firefighters

07/09/2009 / Bruce J. Douglas and Chris M. Heffelbower

The Supreme Court ruled on June 29, 2009 that the City of New Haven violated Title VII when it threw out the City’s firefighter examination because the test results had a disparate impact on minority firefighters. The decision in Ricci, et al. v. Destefano, et al. (No. 07-1428) reversed the Second Circuit Court of Appeals’ decision, which held that the City had properly certified the test results. This Supreme Court decision was much anticipated because Supreme Court nominee Judge Sonia Sotomayor was part of the Second Circuit panel that had decided in favor of the City.

Factual Background
The City of New Haven, Connecticut relied on objective examinations to determine the best qualified candidates for the City’s firefighters’ promotions. The results of the examination determined which firefighters would be considered for promotions during the next two years and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial costs.
The City threw out the examination results when the examination results showed that white candidates had out-performed minority candidates. Certain white and Hispanic firefighters who likely would have been promoted based on their good test scores sued the City claiming that they were discriminated against based on their race. The City defended its action arguing that if they had certified the results and promoted the firefighters they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters.

The Court’s Decision
In a 5 to 4 opinion, Justice Kennedy delivered the opinion of the Court. The Court determined that the City’s action by attempting to avoid racial discrimination by throwing out the test scores that favored white candidates had the effect of intentionally discriminating based on race on the white firefighter candidates.

The Court held, “We hold only that, under 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.” In this case, the City had failed to make that showing of “a strong basis in evidence” that it would be subject to disparate impact liability if it had certified the examinations.

The City could be liable for disparate-impact discrimination only if the examinations were 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. In this case the firefighter examination was job-related and consistent with business necessity. The City hired an outside firm to develop and administer the examination at a cost to the City of $100,000. During the test preparation, the testing firm deliberately over-sampled minority firefighters to ensure that the results would not unintentionally favor white candidates. In addition, there was no clear less discriminatory alternative that the City could adopt.

What this Decision Means for Employers
This case has obvious implications for those employers who routinely use examinations for promotional purposes. Employers should pause before throwing out otherwise valid test scores because of a disparate impact on minority employees. For those employers, the best protection is to design (or have an outside consultant design) examinations that are job related and consistent with business necessity. In addition, employers who use examinations in their employment practices should take a hard look to determine if there exists an alternative to those examinations that would achieve the same result.
It is not yet clear how this decision will affect the “disparate-impact theory” in general. Clearly, the Court is cautioning employers that even if there is a disparate impact on minorities in employment practices, disregarding that practice because of race can lead to liability for intentional discrimination for affected non-minority employees.

Larkin Hoffman’s employment law team of attorneys is experienced to handle complex questions of race discrimination and the use of examinations for employment decisions. If you require additional information please do not hesitate to contact us.