More on Supreme Court’s Ruling in Key Reverse Discrimination Case

On Monday (June 29, 2009), the U.S. Supreme Court ruled in favor of white firefighters in a 5-4 decision addressing workplace reverse discrimination. The Court held, in Ricci v. DeStefano, that the city of New Haven, Connecticut, violated Title VII of the Civil Rights Act of 1964 when it threw out the results of a written exam used in the promotion of firefighters because non enough minorities passed the test.

Although the case has been in the media since it reached the Supreme Court, it became very highly publicized once President Barack Obama chose Judge Sonia Sotomayor as his Supreme Court nominee. Sotomayor was part of the three-judge Second Circuit panel that upheld New Haven’s decision to throw out the exams. Since Sotomayor’s nomination, the case has been inextricably linked to her and has been used by her critics as an example of her tendency to favor minorities in her judicial rulings. Republicans on the Senate Judiciary Committee are likely to focus on the Supreme Court’s reversal in her confirmation hearings, which begin in two weeks.

Learn more about Judge Sotomayor, and keep up with the latest developments in her U.S. Supreme Court nomination at The Word on Employment Law with John Phillips.

When New Haven administered the promotional tests in 2003, the results showed minority candidates had performed disproportionately lower on the exams. Since the city feared that the minority firefighters would file a discrimination lawsuit if it certified the test results, it threw out the results. Eighteen white firefighters (including one Hispanic) who received high scores on the test sued New Haven, asserting they were victims of race discrimination.

In its opinion, the Supreme Court distinguished between “disparate treatment” and “disparate impact.” These terms were critical in the case because New Haven was more concerned about the disparate impact resulting from the tests (only two minorities were eligible for promotions) than the disparate treatment of the white firefighters by throwing out the results.

Title VII prohibits “disparate treatment” (or intentional) discrimination when it bars employment discrimination based on race, color, religion, sex, or national origin. Under the Civil Rights Act of 1991, an individual can establish a disparate-impact violation by demonstrating that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” If an employer is accused of a disparate-impact violation, it can defend its actions by proving the practice is job-related or a business necessity. Even if the employer proves that defense, however, the employee can still win by showing that the employer didn’t use an alternative employment practice that would still meet the employer’s needs without causing the same type of disparate impact.

The Court wanted to provide employers and courts with guidance on what to do when the two prohibitions — disparate impact and disparate treatment—conflict with each other. After examining cases similar to Ricci, the Court held that a “strong-basis-in-evidence” standard should be used to resolve any conflict between the disparate-treatment and disparate-impact provisions. In other words, before an employer can intentionally discriminate in order to avoid or remedy some kind of unintentional disparate impact, “the employer 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.” The Court held that New Haven did not have such a basis to justify throwing out the tests.

The Court’s decision in this case could have a huge effect on workplace discrimination and diversity issues. Even though the case involved public employers, it will most likely also affect private employers since Title VII covers both. You may need to reevaluate how and when you consider race in decisions regarding hiring and promotions. Some observers have speculated that by ruling against New Haven, the Court made it more difficult for other employers to challenge suspicious promotional test results in the future. It will also be interesting to see how the reversal affects Sotomayor’s confirmation hearings.

To learn more about how changes on the Supreme Court and in employment law in 2009 will affect employers and what’s on the horizon for 2010, check out the Advanced Employment Issues Symposium being held in Nashville September 17-18, 2009, and in Las Vegas on October 29-30, 2009. For more information, click here.