In what some employment law attorneys are calling one of the most important employment law cases of the decade, the U.S. Supreme Court ruled on June 29 in favor of white New Haven, Conn., firefighters who charged the city discriminated against them when it refused to promote them after they passed a test that few black co-workers did.
In a 5-4 ruling, the court said New Haven shouldn’t have thrown out the promotion test results just because it feared the test would have a disparate impact on black firefighters.
The court said that before an employer throws out the results of a pre-hire exam because it fears a discrimination lawsuit, it must have a “strong basis in evidence” to believe that the test is discriminatory under Title VII of the Civil Rights Act.
The case, Ricci v. DeStefano (No. 07–1428) drew wide attention because Supreme Court nominee Judge Sonia Sotomayor was part of a 2nd Circuit Court of Appeals panel that upheld a lower court ruling against the white firefighters.
The case: New Haven administered the promotion exams in 2003. More than 200 firefighters took the tests, seeking positions as fire department lieutenants and captains. Most were white, but many were black and Hispanic. Several blacks and Hispanics passed the tests, but city law requires offering promotions to only the top-scoring candidates. They were all white or Hispanic.
That’s when the city decided to scrap the test results and promote no one, fearing that if it did, black firefighters would sue for disparate impact.
Instead, the white firefighters sued, alleging violations of their rights under Title VII. After losing at the federal district court level in 2006 and in the 2nd Circuit last year, they appealed to the Supreme Court.
The upshot of the Ricci decision: Even good-faith employment decisions can be discriminatory if they harm one class of employees more than another.
But the news isn’t all bad for employers, according to Josh Davis, a shareholder in Ogletree Deakins, whose attorneys edit HR Specialist’s California Employment Law and Texas Employment Law newsletters.
In fact, the decision lays out a relatively clear path on what to do when in doubt about whether a properly administered, legitimate employment test might benefit one protected group at the expense of another.
“As long as the employer can show that the test is job-related and consistent with business necessity,” Davis said, “it should accept the results of the test.”
Davis explained further that “this divided court simply refused to sanction New Haven’s effort to fix something that looked wrong. And, in so doing, it should give employers comfort that solid decision making in advance of testing will provide meaningful insulation against claims of unintentional discrimination.”
“Fear of litigation alone,” Justice Anthony M. Kennedy wrote in the majority opinion, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
“The city rejected the test results solely because the higher-scoring candidates were white,” Justice Kennedy wrote. The opinion stated that the possibility that minority employees might sue wasn’t a legal justification for the city’s decision.
