Archive for June, 2009
High Court Rules on Firefighter Promotions
Supreme Court finds in favor of Caucasian firefighters
5-4 decision overturns ruling that promotional tests were racially biased
Editor’s Note: Did the City of New Haven, CT act illegally by invalidating promotional tests because only white candidates scored high enough for promotion?
When the City of New Haven, Connecticut (“City”) undertakes filling vacant positions in its fire department, the city charter governs the promotion process. The charter establishes a merit system requiring the City to fill vacancies with the most qualified individuals as determined by job-related examinations. After each examination, the New Haven Civil Service Board (“CSB”) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list. Certified promotional lists remain valid for three years.
In 2003, 118 City firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. There were eight lieutenant and seven captain positions vacant at the time of the examinations. Of the seventy-seven candidates who completed the lieutenant examination, the top ten scorers eligible for immediate promotion by operation of the “rule of three” were Caucasian. Of the forty-one candidates who completed the captain’s exam, the top 9 scorer’s eligible for immediate promotion by operation of the “rule of three,” seven were Caucasian and two were Hispanic.
City officials expressed concern that the tests discriminated against minorities. The CSB began meeting in early 2004 to consider whether to certify the results. The City’s chief administrative officer argued against certification saying that the results disproportionately excluded African-American and Hispanic candidates from opportunity under the “rule of three” as applied to the existing captain and lieutenant vacancies.
The CSB ultimately voted to not to certify the results, denying the 17 Caucasian firefighters and 1 Hispanic firefighter (“Petitioners”) who passed the examinations a chance at promotions.
Petitioners filed suit, alleging that when the CSB refused to certify the captain and lieutenant exam results, the CSB discriminated against them in violation of the Title VII disparate-treatment provision. The City defended its decision, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters who did not score as well.
The District Court granted summary judgment in favor of the City, and the Court of Appeals affirmed. The Supreme Court then granted Certiorari.
Decision: Reversed and remanded.
Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”). 42 U.S.C. §2000e.
Under the disparate-impact statute, a plaintiff establishes a violation by showing that an employer uses a “particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Ibid.
The Supreme Court held in this case that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an 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.
An employer cannot discard a test to achieve a more desirable racial distribution of promotion-eligible candidates absent a strong basis in evidence that the test was deficient and that discarding the results was necessary to avoid violating the disparate impact provision.
The Supreme Court saw no evidence in this case that the tests were flawed because they were not-job related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Therefore, the City’s discarding the test results was impermissible under Title VII.
Citation: Frank Ricci, et al. v. John DeStefano, et al, Nos. 07-1428 and 08-328, Supreme Court of the United States, (2009).
Lesson Learned:
For purposes of promotional examinations, employers need a strong-basis-in-evidence that an exam is deficient before discarding the results. Discarding the results of a promotional examination on a race-conscious basis is especially perilous. Cities, towns, and fire departments should do everything they can to establish bulletproof selection criteria before any exam is administered.