- Created on Wednesday, 01 July 2009 12:18
In a widely anticipated case the U.S. Supreme Court held that New Haven discriminated against a group of white and Hispanic firefighters when it threw out the results of a promotional test that African Americans did poorly on. Ricci v. DeStefano, Nos. 07-1428 and 08-328 (June 29, 2009). In its highly technical 5-4 decision, the Court attempted to balance two requirements of discrimination law; (1) that employers not intentionally discriminate (“disparate treatment”), and (2) that even in the absence of intentional discrimination, employment policies cannot statistically impact any one race adversely (“disparate impact”). By throwing out the tests to avoid being sued for disparate impact by the African American firefighters, New Haven was found to have engaged in disparate treatment discrimination against the white and Hispanic firefighters.
The Court stated that a threat of disparate impact litigation is an insufficient reason for an employer to engage in intentional discrimination against another group. Instead, it said that New Haven had to demonstrate “a strong basis in evidence” that had it not thrown out the test it would have been liable under the law’s disparate treatment provision. Based on prior legal precedent, the Court went on to explain that the city would be liable unless it could show the test was “job related and consistent with business necessity,” or plaintiffs could show New Haven failed to use another effective evaluation method that would have produced a less discriminatory statistical outcome, the test results must be used. As there was no evidence meeting either element New Haven’s rejection of the test was unlawful.
The decision offers little in terms of practical guidance on how employers should balance these two competing aspects of the law. Although the ruling fails to adequately settle the matter, it appears to slightly tip the scales toward protecting those who benefit from neutral employer policies, and may dampen reverse discrimination claims. In the meantime, employers should examine any policy that produces an adverse impact and carefully think through the proper response to any statistical anomalies.