The United States Supreme Court ruled today that white firefighters who were denied a promotion even though they scored higher on tests than minority counterparts, suffered violations of their civil rights. Though outside the normal scope of this blog, the issues addressed by the U.S. Supreme Court in this decision are so pervasive and so fundamental to the legal foundation on which our society is based, and are of such great concern to all businesses, that I provide below the official synopsis by the court of its opinion, verbatim, with a link here to the actual decision (with predictable dissenting opinions):
RICCI, ET AL. v. DESTEFANO, ET AL.
No. 07–1428. Argued April 22, 2009—Decided June 29, 2009
New Haven, Conn. (City) uses objective examinations to identify thosefirefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed thatwhite candidates had outperformed minority candidates, a rancorouspublic debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit eitherway—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passedthe exams but were denied a chance at promotions by the City’s re-fusal to certify the test results, sued the City and respondent officials,alleging that discarding the test results discriminated against thembased on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certifiedthe test results, they could have faced Title VII liability for adoptinga practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, andthe Second Circuit affirmed.
Held: The City’s action in discarding the tests violated Title VII. Pp. 16–34.
(a) Title VII prohibits intentional acts of employment discrimina-tion based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a dispropor-tionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparateimpact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that itspolicy or practice is “job related for the position in question and con-sistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employerrefuses to adopt an available alternative practice that has less dispa-rate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). Pp. 17–19.
(b) Under Title VII, before an employer can engage in intentionaldiscrimination 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 li-ability 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 somevalid defense. All the evidence demonstrates that the City rejectedthe test results because the higher scoring candidates were white.Without some other justification, this express, race-based decision-making is prohibited. The question, therefore, is whether the pur-pose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the contextof the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial dis-crimination—actions that are themselves based on race—are consti-tutional only where there is a “strong basis in evidence” that the re-medial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in-evidence standard, the Wy-gant plurality recognized the tension between eliminating segrega-tion and discrimination on the one hand and doing away with all gov-ernmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that “[e]videntiary support for the conclu-sion that remedial action is warranted becomes crucial when the re-medial program is challenged in court by nonminority employees.” Ibid. The same interests are at work in the interplay between TitleVII’s disparate-treatment and disparate-impact provisions. Apply-ing the strong-basis-in-evidence standard to Title VII gives effect toboth provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consis-tent with other Title VII provisions, including the prohibition on ad-justing employment-related test scores based on race, see §2000e–2(l), and the section that expressly protects bona fide promotional ex-ams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and dis-parate-impact provisions. Pp. 19–26.
(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 26–34.
(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a primafacie case of disparate-impact liability. The problem for respondentsis that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence thatthe City would have been liable under Title VII had it certified thetest results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job relatedand consistent with business necessity, or if there existed an equallyvalid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substan-tial basis in evidence that the test was deficient in either respect. Pp. 26–28.
(ii)The City’s assertions that the exams at issue were not job re-lated and consistent with business necessity are blatantly contra-dicted by the record, which demonstrates the detailed steps taken todevelop and administer the tests and the painstaking analyses of thequestions asked to assure their relevance to the captain and lieuten-ant positions. The testimony also shows that complaints that certainexamination questions were contradictory or did not specifically ap-ply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ valid-ity. Pp. 28–29.
(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, bycertifying the test results, would necessarily have refused to adopt.Respondents’ three arguments to the contrary all fail. First, respon-dents refer to testimony that a different composite-score calculationwould have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that thecandidate weighting actually used was indeed arbitrary, or that thedifferent weighting would be an equally valid way to determinewhether candidates are qualified for promotions. Second, respon-dents argue that the City could have adopted a different interpreta-tion of its charter provision limiting promotions to the highest scoring
applicants, and that the interpretation would have produced less dis-criminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results,§2000e–2(l). Third, testimony asserting that the use of an assess-ment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aidrespondents, as it is contradicted by other statements in the recordindicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) state-ments in the record. Pp. 29–33.
(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations andqualified for promotions. Discarding the test results was impermis-sible under Title VII, and summary judgment is appropriate for peti-tioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based onthe strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34.
530 F. 3d 87, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opin-ion, in which STEVENS, SOUTER, and BREYER, JJ., joined.