• Supreme Court Overturns Decision in Reverse-Discrimination Case Regarding Employment Testing Practices
  • July 10, 2009
  • Law Firm: Best Best & Krieger LLP - Riverside Office
  • This week, the Supreme Court issued its decision in Ricci v. DeStefano, 557 U.S. ____ (2009).  The Court's opinion has significant implications for employers who use testing as part of their employment and promotion practices.  The opinion provides that the mere fact that a certain racial group is statistically outperformed on otherwise-valid employment exams – without more – will not justify disregarding the exam results.  The statistical fact alone is not a sufficiently “strong basis in evidence” of liability under the disparate-impact statute of Title VII of the Civil Rights Act to justify disregarding the exams.

    Employers who use employment or promotion exams should re-examine their practices.  Even if it appears that racial groups are statistically outperformed on an employment exam, employers should contact counsel to help determine whether there is a “strong basis in evidence” of liability pursuant to Title VII’s disparate-impact statute prior to disregarding the exam results.

    In Ricci v. DeStefano, the City of New Haven, Connecticut offered its firefighters written exams designed to identify candidates who were qualified for promotion.  When the exam results showed that white candidates significantly outperformed minority candidates, minority groups threatened to sue the City if it made promotions based on the exam results.  Title VII prohibits, among other things, employment practices (such as written exams) that have a disproportionate adverse affect on minorities, even if the “disparate impact” is unintentional, unless the practice is necessary for job-related reasons and there are no suitable non-discriminatory alternatives.  As a result of the threatened lawsuit, the City threw out the exam results, arguing that it had other non-discriminatory alternatives available to determine candidate qualifications for the available promotions.  In response, the mostly-white, successful test-takers sued the City for reverse discrimination.  The district court agreed with the City’s arguments.

    In 2008, a three-judge panel from the Second Circuit Court of Appeals (which included Supreme Court nominee Sonia Sotomayor) voted to uphold the lower court's decision.

    This week, in a 5-4 decision, the Supreme Court reversed the lower-court rulings.  The Court held that the City impermissibly discriminated against the mostly-white, successful test-takers by disregarding the exam results.  The Court agreed with the City that, in certain instances, the law allows an employer to discriminate against a racial group in the way the City attempted here (i.e., by disregarding exam results that favored the mostly-white, successful test-takers) in order to avoid an unintentional, disparate-impact discrimination claim (such as the one threatened by the minority groups that did not perform as well on the exams).  The Court, however, articulated a new standard for when this kind of discrimination may be allowed:  An employer may only discriminate if the employer has a “strong basis in evidence” for believing it will be subject to liability under the disparate-impact statute if it fails to take the remedial action. 

    The Court stated: “Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”  Under the Supreme Court’s analysis, statistical disparity – with 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 held that the City failed to produce a strong basis in evidence that the exams were not job-related or that different exams or assessment schemes would be an equally valid alternative way to determine whether candidates were qualified for promotions.