Last June, in Ricci v. DeStafano, the United States Supreme Court ruled for white firefighters who sued the City of New Haven after it discarded a promotional test on which they scored highly, claiming the city’s concern about the test’s disparate impact on minority firefighters amounted to discrimination against the white firefighters. (See our blog on the topic). The case generated a tremendous amount of attention, as it highlighted the employer’s unenviable position between a rock and hard place: promote the high-scoring white firefighters and risk a disparate impact lawsuit by the minority firefighters, or discard the test and be sued by the white firefighters. In Ricci, the employer chose the latter, only to be told by the Court it should have selected the former option.
The case was also of interest because then-Supreme Court nominee Sonia Sotomayor was on the appellate court panel that found against the white firefighters. All eyes may be on her in the next round, in Lewis v. City of Chicago. The case involves a 1995 test by the city’s fire department. While the test takers were only slightly less than 50% African-American, only 11.5% of the test takers scored high enough to be likely to secure a job. Approximately 6000 African-Americans who were not hired sued the city, alleging the test had an illegal disparate impact.
The Supreme Court heard oral arguments in the case yesterday. It is not yet clear whether they will decide the case on a mere timing issue (the plaintiffs may have missed the statute of limitations on their claim, as the Seventh Circuit held when it dismissed the suit), or it may tackle the broader issue of discrimination claims based on test scores. Stay tuned.
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