Employees have a legitimate expectation not to be judged on the basis of race

On Monday June 29, 2009 the Supreme Court ruled that the City of New Haven, Connecticut (the “City”) violated federal discrimination laws when it discarded the results of a racially-neutral promotion exams for city firefighters after white employees scored higher than black employees and the City concluded that too few minority firefighters scored high enough to be considered for promotion. Ricci et. al. v. DeStefano et. al.

The Supreme Court reversed the decisions of both the Second Circuit Court of Appeals (on which Supreme Court nominee Judge Sonya Sotomayor sat) and the federal trial court which had both allowed the City to discard the promotional exam results. Justice Kennedy, writing for the majority in the 5-4 decision, stated that primary goal of the Civil Rights Act is to remove race as a factor in hiring and promotions and that “no individual should face workplace discrimination based on race.”

The City spent $100,000 and went to extraordinary lengths to develop racially-neutral promotional exams that accurately reflected the knowledge necessary to perform the duties of Lieutenant and Captain. The City contracted with a neutral third party testing company that had experience in developing fire fighter promotional exams. The testing company conducted thorough job analyses which included individual interviews, ride-alongs, and job-related questionnaires. In addition, testing company representatives observed the job duties of on-duty officers. Afterwards, the testing company developed the exams and study guides which identified for the applicants, the precise materials to study and in some cases, even the specific chapters from which the questions came.

The test results revealed a significant disparity in success according to race. Specifically, white employees scored higher than black employees. Consequently, there were no black employees eligible for the first round of promotions. The City held hearings to decide whether it should certify the test results. Several fire fighters, without knowing their own individual scores (including Ricci), argued for certification and several argued against certification. The City ultimately determined that the testing results revealed a disparate impact in favor of white employees and consequently, discarded the test results.

Seventeen white firefighters (including Ricci) and one Hispanic employee brought suit against the City and the Mayor, among others, alleging a violation of Title VII and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. The parties filed cross motions for summary judgment and the lower court found in favor of the City and the Mayor. The City argued that it had a good faith belief that it would have violated the disparate impact prohibition of Title VII if it had certified the testing results (a disparate “impact” is an unintentional discriminatory effect of an employer action such as an employment exam, upon a protected class). The Second Circuit Court of Appeals affirmed the lower court’s ruling reasoning that the City’s actions were not based on race because “all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.”

The Supreme Court overturned the Second Circuit stating:

Whatever the City’s ultimate aim-however well intentioned or benevolent it might have seemed-the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

The question presented in this case was whether an employer may violate the disparate treatment provisions of Title VII in an effort to avoid disparate impact liability (disparate “treatment” is an intentional discriminatory conduct toward a protected class). The answer is: only under the most narrow of circumstances when there is a “strong basis in evidence” that a violation of one will ensure compliance with the other.

The Supreme Court found that the City did not have a “strong basis in evidence” that engaging in disparate treatment of the white fire fighters (by discarding the test results) would avoid a disparate impact (by certifying the test results). Fear of litigation alone does not establish a strong basis in evidence to allow the City to rely on race to the detriment of those who passed the exams and qualified for promotions.

If an employer cannot rescore a test based on the candidates’ race . . . then it follows a fortiori that it may not take the greater step of discarding the test all together to achieve a more desirable racial distribution of promotion eligible candidates. . .

The decision establishes a high standard that an employer must meet to justify violating one provision of the Civil Rights Act in an attempt to be in compliance with another – even where the employer might see itself in a Catch-22 position. As a result, employers should work closely with their labor and employment counsel when navigating these often precarious waters.

The Schwarzberg & Associates Employment Law and Compliance Team has extensive experience in developing effective policies, procedures and proactive responsive measures to deal with a myriad of workplace issues. Please do not hesitate to contact one of our members; Steve Schwarzberg or Lisa Kohring at (561) 659-3300 to obtain more information about our firm and its various employment law compliance and defense services.