• Fear of Litigation Did Not Justify Reverse Discrimination by City on Public Safety Promotional Exams

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Contents

Special Bulletin: Fear of Litigation Was Insufficient Basis for City to Discriminate Against White Public Safety Employees on Results of Promotion Tests by Refusing to Certify Their Test Results.
Ricci v. De Stefano, Nos. 07-1428; 08-328 (2009).
http://www.law.cornell.edu/supct/html/07-1428.ZS.html
http://laws.lp.findlaw.com/us/000/07-1428.html


A city threw out the results of objective examinations to identify those firefighters best qualified for promotion to lieutenant and captain positions when the results showed that white candidates had outperformed minority candidates. White and Hispanic firefighters who passed the exams but were denied a chance at promotions by the city’s refusal to certify the test results sued the city and its officials, alleging that discarding the test results discriminated against them based on their race in violation of Title VII of the Civil Rights Act of 1964.

In a 5-4 decision and an opinion written by Justice Kennedy the United States Supreme Court ruled that the city’s action in discarding the test results violated Title VII. Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact on minorities, 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. All the evidence demonstrated that the city rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision making was prohibited by Title VII. Merely because the city faced possible litigation if it had certified the test results did not satisfy the “strong basis in evidence” standard. A mere showing of a significant statistical disparity and nothing more was not a “strong basis in evidence” that the city would have been liable under Title VII had it certified the test results. The Court said that fear of litigation alone cannot justify the city’s reliance on race to the detriment of individuals who pass examinations and qualify for promotions. Discarding the test results in this case was impermissible discrimination under Title VII. The plaintiffs were entitled to summary judgment on their disparate-treatment claim.

Justices Ginsburg, Stevens, Souter and Breyer dissented.