Warren & Hays LLC

On Monday, June 29th, the Supreme Court issued its long-awaited decision in Ricci v. DeStefano, holding that the city of New Haven, Conn. discriminated against (mostly) white firefighters by scrapping a 2003 promotional exam that had a disparate impact on minority firefighters.  The case has tremendous implications for workplaces all over the country who may be grappling with the issue of when, if ever, employers may consider race in job-related decisions.  

The case is also newsworthy for another reason — it overturns would-be Justice Sonia Sotomayor’s ruling in favor of the city as a Second Circuit judge.  Just a day later, her critics are already claiming the Court’s decision somehow puts a chink in her candidate armor.  But her supporters (me among them) know that lower court judges get reversed all the time; it is intrinsic to the job.  Further, the Second Circuit’s decision in Ricci hewed closely to precedent — also part of the job description of an appellate judge.

At the core of the Court’s majority decision, written by Justice Kennedy, is the notion that by addressing a potential violation of Title VII’s disparate impact provision, as the test in question had a statistically significant negative impact on black firefighters, the City necessarily implicated Title VII’s disparate treatment provisions.  In other words, the decision to disregard the test constituted intentional discrimination against the high-scoring white firefighters.  The Court acknowledged that the City’s decision was rooted in its belief that upholding the exam results could result in liability for disparate impact.  But the Court concluded “fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”  

Justice Ginsberg wrote a strong dissent, which she read from the bench.  She began by discussing the “entrenched inequality” in the firefighting profession, long known for racial imbalances.  She argued the majority decision thwarts voluntary compliance efforts, which Title VII specifically encourages.  She also rejected the majority’s pitting the disparate impact provisions of Title VII against the disparate treatment provisions.  The majority opinion held that by trying to avoid one (disparate impact), it violated the other (disparate treatment).  But Ginsberg argued this position ignores EEOC interpretive guidelines, usually afforded deference by the Court, which state “By the enactment of Title VII, Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement.”  She further argued the City’s decision to scrap the test was race-neutral in the sense that firefighters of all races would have to participate in another promotional process.  Therefore, the City’s actions were unlike quotas or even race-based preferences.

Expect a flood of information, analysis, and predictions from experts on both sides of the debate in the near future.  But the immediate and obvious takeaway for employers, at least until and unless Congress steps in to legislatively revisit the decision, is that any concerns about disparate impact must be fully vetted, investigated, and analyzed — presumably at great cost — before employers take “corrective” action, lest they court disparate treatment liability.