Ricci v. DeStefano raises questions as to what steps employers may take where avoidance of discrimination against one group may mean discrimination against another group. The City of New Haven, Connecticut administered a civil service examination for fire department promotions. The exam produced racially disproportionate results, favoring white candidates over black candidates. As a result, New Haven ultimately did not certify the examination. Ricci and other candidates who scored higher on the examination and thus were eligible for promotion sued New Haven, claiming racial discrimination against the higher scoring candidates. The district court granted summary judgment for New Haven, and the Second Circuit affirmed. Ricci and the other petitioners claim New Haven discriminated against them on the basis of race in violation of the Equal Protection Clause and Title VII. New Haven, on the other hand, claims it was complying with Title VII in declining to certify the exam and thus did not violate either the Equal Protection Clause or Title VII.
1. When an otherwise valid civil service selection process yields unintended racially disproportionate results, may municipalities reject the results and the successful candidates for reasons of race absent the demonstration required by 42 U.S.C. § 2000e- 2(k)?
2. Does 42 U.S.C. §2000e-2(l) which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race . ," permit employers to refuse to act on the results of such tests for reasons of race?
3. If, citing the public interest in eradicating political patronage, racism and corruption in civil service, a state's highest court mandates strict compliance with local laws requiring race-blind competitive merit selection procedures, does 42 U.S.C. §2000e-7 permit federal courts to relieve municipalities from compliance with such laws?
1. When a content-valid civil service examination and race-neutral selection process yield unintentionally racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?
2. Does an employer violate 42 U.S.C. § 2000E-2(1), which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race," when it rejects the results of such tests because of the race of the successful candidates?
Whether city officials trying to diversify a civil service department are guilty of racial discrimination under the Equal Protection Clause or Title VII when they decide not to utilize written test results which favor one racial class over another, and whether an employer violates 42 U.S.C. § 2000E-2(1), which makes it illegal to adjust test scores or cut-off scores based on race, when he decides not to utilize test results because the successful candidates are all of one race.
In 2003, the City of New Haven, Connecticut ("New Haven") administered written examinations in an effort to fill vacant lieutenant and captain positions in its Fire Department. The written exams were to account for sixty-percent of the ultimate assessment of a candidate's ability to successfully serve as a lieutenant or captain. Forty-percent of an individual's assessment consisted of an oral exam evaluating a candidate's ability to lead others in emergency situations. When New Haven officials analyzed the written test results, they found that the pass rate for black candidates was approximately half the pass rate of white candidates.
New Haven's City Charter requires that the Board of Fire Commissioners use civil service examinations based on a "Rule of Three," where only the top three highest scoring candidates on each of the lieutenant and captain exams may be awarded a promotion. Under the Rule of Three, no black candidates could be awarded a promotion, since none of the top three highest scores on either test belonged to an African-American. The highest scoring black candidate for the lieutenant position was thirteenth; the highest scoring black candidate for the captain position was fifteenth.
City officials referred the issue of the test results to New Haven's Civil Service Board ("the Board"), which is composed of five members who are responsible for overseeing New Haven's civil service examinations and assessing test results before certifying eligible candidates for promotion. The Board held public hearings to determine whether they would certify a list of eligible candidates. The Board's certified list of eligible candidates was to consist of individuals who scored seventy-percent or higher on the written exam. .
The Board heard evidence regarding the test results' disparate and adverse impact on blacks. "Disparate impact" is a "theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class." "A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect."
Ultimately, the Board was deadlocked on the issue of whether to certify, based on the test results, a list of eligible candidates for promotion. Because of the deadlock, the Board did not certify any list of eligible candidates. Frank Ricci and other firefighters who were among the top scorers and thus eligible for immediate promotion, sued New Haven's mayor, John DeStefano, and other city officials under Title VII of the Civil Rights Act of 1964 ("Title VII"), alleging violation of the Equal Protection Clause. The federal district court granted DeStefano summary judgment, dismissing Ricci's Title VII and equal protection claims. In a 7-6 decision, the Second Circuit affirmed the district court's rulings and denied a re-hearing. The Supreme Court granted certiorari on the consolidated cases on January 9, 2009.
Ricci v. DeStefano illustrates the difficulty that employers can face in trying to achieve a diversified workforce while refraining from discrimination against traditionally advantaged groups. In deciding not to certify the Fire Department's exam results, where the pass rate for black candidates was only half the rate for white candidates, New Haven arguably was trying to avoid Title VII liability from African-Americans who may have alleged that they had been denied promotions based on a test that had disparate impact. .Yet New Haven seems to have ended up in a no-win situation-while its decision not to certify a list of eligible candidates allowed it to avoid a potential lawsuit with blacks, the same decision opened it up to a lawsuit from the white candidates who, but for New Haven's decision, could have been promoted.
For employers at large, the outcome of this case may provide them with some guidance as to how to achieve racial diversity in the workplace while avoiding lawsuits. Employers who must comply with anti-discrimination statutes in relation to the Voting Rights Act, the Fair Housing Act, and even No Child Left Behind may all be affected by the court's decision, because their "race-neutral practices with race-related goals" may be "constitutionally suspect" if the Court decides in favor of Ricci. In contrast, if the Court decides in favor of DeStefano, it may send a message to employers throughout the nation that rejecting examinations with racially disproportionate results is a permissible strategy for avoiding Title VII lawsuits. Either way, the Court will clarify when employers' efforts to comply with Title VII's disparate impact provisions crosses over the impermissible line to discrimination.
Petitioner Frank Ricci states that the Court's decision will help define the extent to which "innocent non-minorities, solely because of their race," should "shoulder the burden of advancing employment opportunities for minority candidates." He asserts that a Court decision in favor of DeStefano will amount to a sanction of employers' abilities to discriminate against whites, as long as they assert "unfounded, good faith" fear of Title VII lawsuits from blacks. This, Ricci argues, could allow employers to repeatedly administer and reject examinations until they have the desired proportionality in their test results for blacks and whites.Furthermore, Ricci adds, a Court decision in favor of Destefano could send a message to employers that it is permissible for them to cater to lobbyists for certain racial minorities.
On the other hand, Respondent and New Haven Mayor John DeStefano and other city officials argue that if Ricci prevails, employers' decisions to employ a race-neutral promotional exam to avoid the disparate impact of a previous exam will be subject to strict scrutiny as a racial classification. As a result, courts would essentially be scrutinizing employers every time they made a "race-conscious" decision. Amici the United States also believes that such a result would be unnecessary because there is a distinguishable difference between making a decision to promote or not promote an individual because of race, and being "race-conscious" and alert to exam results which display disparate impact. The distinction, the United States explains, is that "where an employer acts in good faith in response to the disparate impact, the decision is based on the judgment that the tests themselves may have been racially discriminatory."
However, some amici argue that the distinction does not matter because any employment decision based on race should be suspect, whether motivated by benign or sinister intentions. Ricci's supporters assert that a decision in favor of DeStefano would essentially condone racial classifications as part of employment decisions, undermining state laws which prohibit discrimination based on race. DeStefano's supporters, however, contend that a decision in favor of Ricci would undermine Congress' intent to allow employers some flexibility in how they analyze and remedy discriminatory practices. Congress, they argue, perceived employers and not courts to be in the best position to determine strategies for preventing discrimination in the workplace.
Both statutory and constitutional safeguards exist to protect individuals against racial discrimination in employment. Here, arguments center on the Equal Protection Clause of the Constitution and Title VII. This case concerns a tension in those safeguards where an exam necessary for promotion produced racially disproportionate results: certifying the exam may mean discrimination against the group injured by the exam, while rejecting the exam may mean discrimination against the group benefited by the exam.
According to Title VII, an employer may not " fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." Additionally, an employer may not "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race." Furthermore, employers may not "adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race" for promotion decisions.
Petitioner Frank Ricci and the other petitioners argue that New Haven violated 42 U.S.C. 2000e-2(a)(1)-(2) and 42 U.S.C. 2000e-2(l). By refusing to certify an exam necessary for promotion because exam scores were racially disproportionate, Ricci argues New Haven denied the higher scoring candidates a promotion because of their race. Respondent, Mayor John DeStefano, argues that certifying the exam could have been a Title VII violation in itself since the results of the exam favored one racial group over another. In other words, DeStefano claims that by declining to certify an exam that would have otherwise violated Title VII, New Haven did not thereby violate Title VII. DeStefano also claims that New Haven did not violate 42 U.S.C. 2000e-2(l) because the exam scores were discounted and not altered.
How much evidence of a Title VII violation is needed in order to claim Title VII as a defense? Ricci claims that DeStefano needs a "strong basis in evidence" for a Title VII violation to decline to certify the exam, and that a prima facie case for a Title VII violation is an insufficient justification for denying a promotion on account of race. Moreover, Ricci claims that DeStefano would have a complete defense to the exam's potential violation of Title VII, as the exam was content-valid and without a sufficient alternative equivalent. DeStefano, on the other hand, claims that a lower standard than "strong basis" applies here, and that a prima facie case for a Title VII violation is enough to decline to certify the exam. DeStefano argues that this is true especially where there is evidence of test flaws or less-discriminatory equivalents, all of which cut against defending the exam under Title VII.
According to the Equal Protection Clause, "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." The issue here is whether New Haven violated the Equal Protection Clause, which requires a determination of the correct standard of review and an evaluation of the action under that standard.
Ricci argues that New Haven's actions must be reviewed under "strict scrutiny." According to Ricci, race-based government actions trigger strict scrutiny, requiring the government to show both a compelling state interest and that the action was narrowly tailored to meet that interest. Here, Ricci argues, the decision not to certify the exam was based on race-New Haven relied on "raw racial labels and distributions" to reach its decision not to certify and thus deny promotion. On the other hand, DeStefano counters that New Haven's action was race-neutral because the decision not to certify the exam applied to all candidates, regardless of race. Moreover, DeStefano argues that given the evidence that the exam violated Title VII, white candidates should not have received disproportionately higher scores. Thus, DeStefano contends, the disparate impact on white candidates as a result of not certifying the exam is irrelevant.
Ricci argues that, even if the decision not to certify was facially race-neutral, a racial motivation may trigger strict scrutiny. Thus, according to Ricci, the decision not to certify because the higher scoring candidates were not black is a racial motivation which triggers strict scrutiny. However, DeStefano argues that New Haven's motivation was to comply with Title VII, and thus Ricci's focus on the underlying racial distribution is misplaced. Moreover, according to DeStefano, allowing attempted compliance with Title VII disparate impact provisions to trigger race-related strict scrutiny would cast doubt on attempts to comply with other laws such as Title VII, the Voting Rights Act, and the Fair Housing Act.
Assuming that strict scrutiny applies, however, Ricci argues that New Haven fails this review because New Haven lacks a compelling state interest in declining to certify the exam and denying promotions to the higher scoring candidates. Ricci contends that "avoiding unintentional racial disparities" cannot provide a compelling state interest for discounting the exam. In contrast, DeStefano claims that while the Equal Protection Clause might not provide an interest in avoiding unintentional racial discrimination, compliance with Title VII's disparate impact provisions is a compelling interest. DeStefano also points out that Title VII is a federal statute which the states are required to enforce under the Supremacy Clause.
However, Ricci claims that, if statutory compliance is a compelling state interest, then New Haven needs to establish a strong basis for believing that the exam did not comply with Title VII. Ricci claims that New Haven lacked a strong basis, or perhaps any basis, to believe that it had violated Title VII, because the exam was content-valid and without equivalent alternatives. DeStefano, however, claims that the prima facie violation of Title VII, coupled with evidence of testing flaws and availability of alternative equivalents, is enough to establish its basis.
Lastly, Ricci argues that even if DeStefano could show a compelling state interest in rejecting the exam results, the rejection was not narrowly tailored to meet the compelling interest as required under strict scrutiny. According to Ricci, New Haven failed to try other measures, such as alternative testing or study aids. Moreover, Ricci contends New Haven chose a blunt instrument by completely disregarding the results of a carefully designed race neutral exam. On the other hand, DeStefano claims that certifying the exam would violate Title VII, and thus the decision not to certify the exam is narrowly tailored to meet its compelling interest of complying with Title VII. As to the narrower alternatives proposed by Ricci, DeStefano argues that it could do nothing narrower than strike out the test once the Title VII concerns became apparent in the results.
The Court's decision in this case will have far-reaching effects on disparate impact jurisprudence. It will clarify for employers the steps they may take in efforts to create a more diverse workplace, while avoiding Title VII lawsuits alleging "reverse discrimination," i.e., discrimination against traditionally advantaged groups.