On June 29, 2009, the Supreme Court of the United States issued an opinion regarding discriminatory practices and civil service exams in Ricci v. DeStefano. The trial record indicates that the City of New Haven, Connecticut, tested its firefighters to determine promotions. It hired a company to design tests that were racially-neutral and based on information obtained from job analyses the company developed. The job analyses identified particular tasks, knowledge, skills, and abilities essential for the positions in question. In November and December 2003, candidates completed the exams. A disparate number of white candidates passed the tests. Because the test results yielded lower passing rates for blacks and Hispanics compared to whites, the city attorney expressed concern that the test had a disparate impact that might subject the city to Title VII disparate impact liability if the results were certified by the Civil Service Board (CSB). Over the course of several hearings with the CSB, various people testified on the question of whether the CSB should certify the results. Ultimately, the CSB did not certify the test results. Subsequently, seventeen white and one Hispanic firefighter who passed the examinations but were denied a chance at promotion filed suit under the disparate treatment provision of Title VII. The trial court ruled in favor of the city, and the court of appeals affirmed that ruling.

The Supreme Court ruled against the city and its decision to not certify the test results. The Court looked at Title VII's two tests: (1) the disparate treatment test; and (2) the disparate impact test. Disparate treatment prohibits intentional discrimination on the basis of a protected category. Disparate impact involves actions that are not intentionally discriminatory but unintentionally have a disproportionately adverse effect on minorities. The Court held that the mere desire to avoid liability under Title VII's disparate impact provision does not automatically justify a conscious choice to take an action that intentionally discriminates on the basis of a protected category; i.e., results in disparate treatment. Because it is difficult for an employer to balance the interests of a protected category while not harming a non-protected or other protected category, the Court adopted a "strong basis in evidence" test to be used in such situations. This test would require that an employer demonstrate that a strong basis in evidence exists that the employerÂ’s actions might violate Title VII's disparate impact provisions before the employer can make race-based decisions.

In Ricci, the Court held that several white and Hispanic firefighters were entitled to judgment in their favor on their claims that the city intentionally discriminated against them when it refused to certify the results of the firefighter promotion exams, because the city failed to show that it had "an objective, strong basis in evidence to find the tests inadequate."

To view Ricci v. DeStefano, Nos. 07-1428 and 08-328 (June 29, 2009) go to: http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf. If you have any questions regarding this case please contact the TML Legal Department at 512-231-7400 or email at legal@tml.org

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