• The "New Haven Firefighters" Case: The Intersection of Politics, Race and Employment Practices
  • August 31, 2009 | Authors: Glen E. Kraemer; Kirstin E. Muller
  • Law Firm: Curiale Hirschfeld Kraemer LLP - Santa Monica Office
  • This week’s U.S. Supreme Court Ricci v. DeStefano decision and its creation of a seemingly new standard for disparate impact cases promises to be one of the most discussed and debated, lauded and ridiculed opinions in recent years.  It will be the focus of senators and bloggers, pundits and politicos, and certainly candidates for the U.S. Supreme Court vacancy.  But after all the shouting is over, and something new fills the talk radio airwaves, what is left for you the employer?  What does this case really mean for your hiring practices?  Does it give answers to long-pondered questions concerning how to craft promotional examinations, and what to do if the results disproportionately impact a minority group, or – as is often the case with broad new standards announced from the highest court - does it leave even greater uncertainty in its wake?

    The facts are simple, the issues highly charged.  The City of New Haven found itself between a rock and a hard place following its use of an “objective” promotional examination for officer selection.  The 2003 test resulted in African American candidates scoring lower than Caucasian and Hispanic candidates.  The City was faced with a “pick your lawsuit” choice: one group of firefighters, arguing that the tests were discriminatory, threatened to sue if promotions were based on the results, while another group, citing the alleged objectivity and neutrality of the examination, vowed legal action if the City denied promotions to those who had performed well.  Ultimately, New Haven recognized the disparate impact on the minority candidates and threw out the examination results.  The white and Hispanic candidates made good on their threat and sued under Title VII of the Civil Rights Act of 1964, arguing that in tossing the test results, the City was unlawfully engaging in disparate treatment against them as individuals due to their race.  The City’s defense:  had they certified the results, they would have been liable for disparate impact discrimination.

    As the case made its way to the Supreme Court, the District Court sided with the defendants and against the case brought by the white firefighters.  So did the 2nd Circuit Court of Appeals, with now-Supreme Court nominee Judge Sonia Sotomayor and two others affirming.  With the announcement of Sotomayor’s nomination, the anticipated Supreme Court decision promised to set off a firestorm of interest and commentary, and just minutes after its announcement on Monday, it did not disappoint.

    In its 5-4 decision, the U.S. Supreme Court reversed and remanded the case, holding that the City unlawfully discriminated against Caucasian and Hispanic firefighters when it denied them the promotions and discarded the test results.  With Justice Kennedy authoring the majority decision, again proving his power on the bench as the key fifth vote, the Supreme Court determined that the City’s decision was race-based and held that in order to avoid liability for disparate treatment of the white firefighters if they discarded the test results, the City needed to show that it had a “strong basis in evidence” that it would have been liable under disparate impact theory to the black candidates had it not disregarded the test results.  While the Court noted that the racial adverse impact of the test was significant, the evidence was purely statistical; there was no evidence that the exams were not job-related, or that there existed an equally valid, less discriminatory alternative.  The Court concluded by stating, essentially, that the City had “picked” the wrong lawsuit:  “If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today…the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.” (Emphasis added.)

    What should employers take away from this decision?  Is it noteworthy beyond the “political moment?”  Certainly, the answer to the latter question is yes.  This is less about Sotomayor being reversed by her desired future colleagues, and more about a change in direction by the Supreme Court from its prior emphasis on Title VII operating to protect groups “long denied equal opportunity “ from “tests ‘fair in form, but discriminatory in operation’” (as noted in Justice Ginsburg’s dissent).  At the same time, the Court’s announcement of a “strong basis in evidence” test did not come with a handy set of instructions, and the lack of clarity will result in employers working much harder up front to create unassailable selection standards, or end the use of written tests altogether in favor of more direct and individualized evaluation of promotional candidate performance.  Employers have interesting choices to make in the future, ranging from a more limited, focused examination of the job-related substance of their current hiring and promotional tests, to the complete reevaluation of whether such “facially neutral” methodologies are used at all.