Client Alert

"[R]esolution of this dispute merely postpones the evil day on which this Court will have to confront the question: Whether, 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? The question is not an easy one."

Justice Scalia's concurring opinion in the thoroughly-divided June 22 decision of Ricci v. DiStefano captures what was not dealt with by the Court. There are 93 pages of text including Justice Kennedy's opinion for the 5-Justice majority, separate concurrences by Justices Alito and Scalia, and a 39-page dissent by Justice Ginsburg for herself and Justices Stevens, Souter and Breyer. Since Justice Ginsburg reminds us that "[i]n assessing claims of race discrimination, '[c]ontext matters,'" it may be best to review how the case arose.

The City of New Haven, Connecticut "uses objective examinations to identify those firefighters best qualified for promotion." When white candidates for lieutenant and captain vacancies received higher scores than minority candidates, the outcry from all sides was deafening. With lawsuits threatened by both the higher-performing whites and the lower-scoring minorities, the city opted to promote no one. The white candidates carried out their promise to sue, lost in district court, and lost again in a three-judge-panel decision by the U.S. Court of Appeals for the Second Circuit – a panel including Supreme Court nominee Sonia Sotomayor.

The five-justice majority rejected the reasoning of the courts below, finding that the city's disregard of the test results constituted discrimination in violation of the 1964 Civil Rights Act, since it constituted an intentional racial preference for the minority candidates and brought about a disparate impact on the white firefighters. The key holding of the Court is that only where there is a "strong basis in evidence" can an employer rely on racial preferences – that is, when there has been a clear history of racial discrimination, a factor not present in the New Haven situation, or where other considerations indicate there was a thumb on the scales – an example such as bias in the design or administration of the test. While the city claimed its own test was not "job related and consistent with business necessity," that assertion was deemed unfounded, nor was there a less discriminatory alternative according to the majority.

Perhaps the most controversial statement in Justice Kennedy's opinion is the holding that "[f]ear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." This posture is precisely the dilemma regularly facing employers torn between existing racial disparities, complex societal influences and the difficulty of assuring workplace diversity.

The four dissenting Justices disagreed with virtually every aspect of the majority’s analysis. The white firefighters "had no vested right to promotion," and no one received promotions in preference to them. Stating that the majority’s fundamental assumption - "[t]he City rejected the test results solely because the higher scoring candidates were white" – was pretextual, the dissenters assert that the tests were fatally flawed and could have been scrapped in favor of other, much better selection tools.

From that premise, the four-Justice minority says racial discrimination is a legacy of the firefighting profession, looking back to the 1970’s to conclude that "entrenched inequality" underlay the entire issue at hand. In the dissenters' view, the test results cannot have been the product of anything other than discrimination, whether benign (disparate impact) or malignant (disparate treatment).

Ample judicial precedents are mustered on either side of the debate. Not only are there no easy answers, but the invitation to a legislative solution seems doomed (after all, the legislative pronouncements are as conflicted as the judicial ones). Reliance on written tests – once presumptively discriminatory, more recently much in vogue – may, in the wake of Ricci, be subjected to greater challenges evoking memories of Griggs v. Duke Power Co., the 1971 decision which the dissent holds up as an authority virtually ignored by the majority. What sort of selection technique will pass muster? It must be more than job-related, for it should be grounded in necessity, cannot be based on stereotypical assumptions, should not employ techniques which reflect cultural bias, and may even be problematic if societal differences such as educational background affect the results. A test, once vetted and adopted in this manner, then must be utilized without exception. It is arguable that the city's decision to use the test was far less an issue than its decision to disregard the outcome once it proved controversial. Therefore, employers may well conclude that testing is so likely to be a ticket to court that other selection procedures are preferable. Whatever the road the employer chooses to take, the analysis, as well as the anticipation of issues and defenses, needs to be done at the beginning, not when the journey reaches an unexpected destination.

Those who were hoping for clarity from the Court will be sorely disappointed. The only sure lesson of Ricci is that if fear of litigation is no reason for an employer to select one course over another, litigation will be inevitable. Any time one group believes it has received different treatment than another, the basis for a claim of discrimination exists and the decision is subject to challenge.

A final warning - even if Congress attempts to develop a legislative solution for this intractable problem, any formula which is created can expect an Equal Protection attack.

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If you have any questions, please contact Charlie Edwards at 336-721-3795.