Yesterday the U.S. Supreme Court ruled in favor of white firefighters and against the city of New Haven in Ricci v DeStefano.
The city had thrown out the results of a promotions test because no blacks scored high enough to qualify for promotions. The city claimed that had it certified the test results, it could have been sued by black firefighters under the disparate impact theory. The District Court granted summary judgment for New Haven, and the Second Circuit (on which Sonia Sotomayor sits) affirmed.
In a 5-4 decision split along party lines, the Supreme Court held that the city violated Title VII of the Civil Rights Act when it discarded the test. The decision was based on an analysis of Title VII’s provisions on disparate treatment and disparate impact. New Haven intentionally discriminated against white firefighters (disparate treatment) to avoid liability for unintentional discrimination against black firefighters (disparate impact). From the syllabus of the 93-page opinion (PDF):
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. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.
The answer to the question in this case is no. There must be a “strong basis in evidence” to intentionally discriminate against one group to remedy past discrimination against another (which “affirmative action” purports to do). Only in narrow circumstances could intentional discrimination be justified. As long as an employment test is job-related and consistent with business necessity, or there is no equally valid, less discriminatory alternative available, it is valid.
The court rejected the city’s claim that the test wasn’t job-related and consistent with business necessity, or that there was an equally valid, less discriminatory alternative available. The evidence showed that the city had already watered down the test to make it easier for black test-takers (that’s my expression, not the court’s), painstakingly analyzing the questions to make sure they were relevant to the captain and lieutenant positions. The defendants also failed to show an equally valid, less discriminatory alternative was available. For example, the city’s suggested race-based test result adjustment would have violated Title VII.
Had New Haven certified the results and faced a disparate impact lawsuit, the court notes, the city could have avoided liability by showing the test was job-related and consistent with business practices.
This decision no doubt will result in more disparate treatment lawsuits if an employer tosses out a test for fear of disparate impact lawsuits, as the dissenting Justice Ruth Bader Ginsburg notes. Race makes things complicated, doesn’t it?
The simplest and most objective way to provide jobs and award promotions is to assess candidates on their qualifications and objective scores, regardless of skin color. If it means “disparate impact” for minorities, so be it.
I’ll have more to say once I read the entire opinion. Stay tuned.
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In April, Bucknell University deans shut down a racial preferences bake sale that a conservative student group hosted to illustrate the unfair and demeaning nature of lowered admissions standards based on race. The school cited a discrepancy between prices at the time of application and at the time of sale. A technicality.
“In fact, there is evidence that the Asian applicants with the same academic qualifications find it somewhat more difficult to obtain admission than do their white counterparts at both academies.”
Quota advocates are hoping the economic downturn stimulates more than just federal funding. They’re hoping to increase set-aside contracts.



