• Employers Beware: Reverse Discrimination Is Still Discrimination
  • August 10, 2009 | Author: Paul N. Farquharson
  • Law Firm: Semmes, Bowen & Semmes, A Professional Corporation - Baltimore Office
  • The Supreme Court of the United States recently addressed the complex and controversial issue of reverse employment discrimination. In Ricci v. DeStefano, the Supreme Court sought to answer whether municipalities could decline to use an exam that would make a disproportionate amount of white applicants eligible for promotion because of fears of charges of employment discrimination on the basis of race.

    In 2003, the New Haven, Connecticut, fire department contracted with Industrial/Organizational Solutions, Inc., to develop exams to be used to assess whether the fire department employees could be eligible for a promotion. These exams, which were required by the fire department’s union contract, were given to applicants seeking to fill captain and lieutenant positions. Under city regulation, the fire department was to promote the three highest scoring applicants among various groups who took the tests.

    Following the test and upon reviewing its results, fire department officials discovered that adhering to this city regulation would not allow any black fire fighters to be promoted. In fact, the passage rate for black applicants on the exam required for lieutenant promotion was about half of that for white applicants. The City responded to the disparity in test scores by engaging in a comprehensive review of the test to determine whether it was racially biased. Despite evidence that it was not, the City, admittedly prompted by a fear of racial discrimination lawsuits, decided not to allow the test results to stand.

    As a result, a group of seventeen white firefighters, among whom included Ricci and one Hispanic, who scored the highest test results, brought suit against the City, claiming that the City’s refusal to acknowledge their high scores violated the Equal Protection Clause and Title VII. Specifically, Plaintiffs alleged that because the city denied their promotions, the city violated Title VII’s disparate impact provision. In pertinent part, this rule provides that, even in the absence of discriminatory intent, an employer may not engage in a facially neutral employment procedure that has an adverse effect on members of a protected class. The District Court granted the City’s Motion for Summary Judgment and the Court of Appeals for the Second Circuit affirmed.

    Ricci and his colleagues filed a Petition of Certiorari, arguing that the lower courts erred in their conclusions. In their briefs and at oral argument before the Supreme Court, Plaintiffs argued that denying white firefighters promotions solely because they were white amounted to race-based discrimination in violation of both Title VII and the Equal Protection Clause. This, they contended, was not at all dissimilar to denying black workers promotions simply because of their skin color. As such, they asked the Court to review the decision under strict scrutiny.

    In evaluating the merits of the case, the Court, interpreting Title VII, concluded that the City failed to present sufficient evidence that the test was flawed or biased in favor of white test-takers. Further, the Court noted, that although the varying test results created a prima facie case of a disparate impact employment discrimination claim, the City’s investigation into the make-up and administration of the test revealed that the test was not biased in favor of white-workers. Therefore, the city had no basis for refusing to promote the highest test scorers, all of whom happened to be white.

    In Ricci, the Supreme Court refused to allow fear of discrimination-based litigation justify an employer’s refusal to promote white employees. In so doing, the Court demonstrated the difficulty employers face when trying to interpret and adhere to Title VII. By applying Title VII rather than the Equal Protection Clause, the Supreme Court made their ruling applicable to employers in both the private and public sector. Under Ricci, all employers who seek to avoid discrimination litigation are advised to consider how their actions may give rise to reverse discrimination charges.