The U.S. Supreme Court has just issued an important ruling in Ricci v. DeStefano. The case involved firefighters in New Haven, Connecticut who took a civil service test in order to determine who was eligible for promotion.
Upon reviewing the exam results, the city discovered that white firefighters did substantially better on the test than African American and Latino firefighters. The city had the test reviewed by a third-party company, which found that the test questions could have been designed in a way that wouldn’t have resulted in such a big score disparity along racial lines. Fearing race bias claims, the city then refused to certify the test results or make promotions based on the test scores.
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The white firefighters sued, claiming that the city was unlawfully making a race-based decision not to promote them. They lost in the lower courts, but the Supreme Court sided with them, concluding that a mere fear of being sued for unintentional “disparate impact” discrimination does not excuse an employer’s making a race-based decision—which is inherently an act of intentional discrimination.
The Supreme Court’s decision is significant because it suggests that, when faced with a choice between getting sued for unintentional (disparate impact) discrimination or intentional discrimination, it’s probably best to avoid the intentionally race-based action. Notably, the court was split 5-4 in this opinion, which suggests that this decision may not be the last word on unintentional vs. intentional bias cases.
We’ll have the full story on this important case, and what it means for employers, in an upcoming issue of California Employer Advisor.