Refusal to certify exams in order to avoid race-bias claims was discriminatory, High Court rules

The City of New Haven, Connecticut, violated Title VII when it tossed the results of firefighters’ promotion exams on the premise that certifying the results would lead to disparate impact litigation, ruled the US Supreme Court. The case has been even more closely watched because of the role that Judge Sonia Sotomayor, the Obama Administration’s nominee for the announced Supreme Court vacancy, played in the appeals court’s decision below that upheld the city’s actions. (Ricci v DeStefano, Dkt Nos 07-1428, 08-328, June 29, 2009, to be reported at 92 EPD ¶43,602)

Background. The city refused to certify the exam results when it appeared no black or Hispanic applicants would be eligible for promotion to the rank of Lieutenant and no black applicants and, at most, two Hispanic applicants would be eligible for promotion to the rank of Captain. Expressing a fear of possible litigation from nonpromoted, nonwhite applicants if the results were certified, the city refused to certify the exams and no promotions were made. Eighteen candidates, 17 white and one Hispanic, filed suit under Title VII and other federal and state laws alleging the refusal to certify was racially discriminatory.

A federal district court granted the defendants’ motion for summary judgment, holding the defendants’ motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent, and, therefore, such evidence is insufficient for plaintiffs to prevail on their Title VII claim.”

The Second Circuit Court of Appeals affirmed the decision in an unpublished order that was later withdrawn and replaced with a per curiam opinion (91 EPD ¶43,235) and an order denying a rehearing and rehearing en banc with written concurrences and a dissent (91 EPD ¶43,236). The Supreme Court granted cert on January 9, 2009.

Supreme Court ruling. The High Court noted 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. Here, all the evidence showed the city rejected the test results because the higher scoring candidates were white, wrote the Court. “Whatever the city’s ultimate aim – however well intentioned or benevolent it might have seemed – the city made its employment decision because of race. The city rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the city had a lawful justification for its race-based action.”

Using the strong-basis-in-evidence standard, the Court found no substantial basis in evidence that the exams were deficient. After laying out the detailed steps taken to develop and administer the exams, the Court rejected the city’s claims that the exams were not job-related and consistent with business necessity, noting the assertions were “blatantly contradicted” by the record that also included “painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions.” The city “turned a blind eye to evidence that supported the exams’ validity,” wrote the Court.

The city could not disregard the exams solely because it feared litigation from black or Hispanic applicants. “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,” concluded the Court. Such action was impermissible under Title VII and the petitioners were entitled to summary judgment. The High Court determined it “need not” decide the underlying constitutional question. Accordingly, the Second Circuit’s opinion was reversed and the cases were remanded for further proceedings consistent with this opinion.

The 5-4 decision was written by Justice Kennedy, who was joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito. Justice Scalia filed a concurring opinion. Justice Alito filed concurring opinion joined by Justices Scalia and Thomas. Justice Ginsburg filed a dissent joined by Justices Stevens, Souter and Breyer.