The U.S. Supreme Court ended its 2008-2009 term in dramatic fashion when it released its decision in a highly anticipated and controversial reverse discrimination case. Although the case had been in the media since it reached the Supreme Court, it became even more intensely scrutinized once President Barack Obama chose Judge Sonia Sotomayor as his Supreme Court nominee. (Sotomayor was part of the three-judge panel that affirmed the opinion of the Second U.S. Circuit Court of Appeals, which heard the case before the Supreme Court.)
In a nutshell, the city of New Haven, Connecticut, threw out the results of a written exam used to promote firefighters because it worried that not enough minorities had passed the test. A group of white firefighters and one Hispanic firefighter who passed the test sued the city, claiming that throwing out the test results discriminated against them because of their race. In a 5-4 decision, the Supreme Court ruled in the firefighters’ favor. Let’s explore the impact of this important ruling.
Court’s New Standard
By throwing out the test results, New Haven showed that it was more concerned about the disparate impact (or unintentional discrimination) resulting from the tests (i.e., only two minorities were eligible for immediate promotions) than the disparate treatment (or intentional discrimination) of the white and Hispanic firefighters. The Court held, however, that the city violated Title VII of the Civil Rights Act of 1964 since it didn’t have a “strong basis in evidence” to conclude that it would be liable to the minorities for certifying the test results if it didn’t throw out the tests.
In its ruling, the Court established a “strong-basis-in-evidence standard” to guide employers and courts when the two employment discrimination prohibitions — disparate impact and disparate treatment — conflict with each other. Under this standard, before an employer can intentionally discriminate to avoid or remedy some kind of unintentional disparate impact, it “must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” Ricci v. DeStefano, 557 U.S. ___ (2009).
Impact on Employers
Although the Supreme Court’s decision could affect workplace discrimination and diversity issues under Title VII, the Court didn’t really provide much clear guidance on how to apply the new standard. Although we may have to wait and see what long-lasting effects the decisionwill have on employment law, here are a few things you should know.
Public versus private employers. The Court’s decision will certainly have a broad impact on public employers’ hiring practices. Cities and towns will be much more wary about making race a factor in hiring or promotions. Also, public employers that haven’t already moved away from written tests may completely stop using them. Or they may increase their use of assessment centers or other practical performance assessments.
Further, although the case involved public employers, the standard set out by the Court also will apply to private employers since Title VII covers both. It’s interesting that if the Court had decided the case based on constitutional grounds (under the Fourteenth Amendment’s Equal Protection Clause), the ruling most likely would apply only to public employers. Since the Court chose to decide the case on statutory grounds (Title VII), however, the new standard applies to public and private employers.
Out with diversity, in with discrimination? There has been a lot of conjecture and many predictions that the Court’s new standard will hurt workplace diversity and leave a wider opening for discrimination to creep into employers’ practices. Civil rights groups have speculated that although employers may still be able to boost minority hiring through race-conscious practices, those kinds of efforts may be harder to defend. They fear that the ruling could make it easier for employers to discriminate by limiting their liability in situations in which minorities can’t prove they were the victims of intentional discrimination.
The decision will affect many employer policies and procedures, including hiring, firing, promotions, discipline, layoffs, and terminations. Although the Court hasn’t restricted your efforts to design affirmative action programs to increase diversity in hiring or promotions, it did establish certain “rules.” According to the Court, once the “process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” You could deviate from such a process once it began only if you had a “strong basis in evidence” that the practice would be a provable disparate-impact violation.
Effect on employment testing. The Court’s ruling may have its biggest impact on employment testing. You now must be even more cautious when using tests for hiring and promotion decisions since the Court made it more likely that you will have to live with the test results, even if you’re unhappy with them.
If you use employment tests, you must ensure that they are fair and objective. You should carefully plan and analyze their content before you administer them and make sure to rule out other less-discriminatory alternatives you could use. The questions on the test should relate to the duties of the job for which you are testing, and you should be able to show that the tests were relevant in your hiring or promotion process.
More Litigation, Legislation, or Both?
It’s unlikely that this decision will remain unchanged, without further judicial or legislative guidance, since the Court’s new standard isn’t very specific or well defined. In fact, many legal experts are predicting there will be an increase in employment discrimination litigation. It’s also possible Congress could enact new legislation to amend Title VII to counteract the Court’s decision.
Even though the decision’s full impact on employment discrimination law may be unclear, it’s a good time to reevaluate how and when you consider race in your employment decisions. You will want to take an especially close look at your use of employment testing since the Court’s ruling against New Haven may make it more difficult for you to challenge suspicious promotional test results in the future.