In a 5-4 ruling, Justice Anthony M. Kennedy, writing for the majority, ruled that the City of New Haven should not have discarded the promotion examination results for the firefighters and in doing so, discriminated against them based on their race.  The court’s majority rejected the City’s argument that setting aside the results was permissable because the tests appeared to violate Title VII’s disparate impact provisions.  “Fear of litigation alone,” Justice Kennedy wrote, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

Additionally, the Court said that before an employer throws out the results of a pre-hire exam because it fears a discrimination lawsuit, it must have a “strong basis in evidence” to believe the test is discriminatory under Title VII.  Thus, the court imposed a new standard on employers seeking to comply with Title VII.

Justice Ruth Bader Ginsburg wrote the dissent.  She said that restricting what employers can do after a policy is found to be discriminatory runs counter to the intent of Title VII, citing previous Supreme Court decisions.  She said that by straying so far from precedent, the decision “will not have staying power.”  Justice Ginsburg went on to fault the court’s majority for ignoring the history of discrimination against blacks and Hispanics in the New Haven fire department. 

So, what does the Ricci decision mean for employers?

The decision arguably creates a quandary for employers.  The decision has created a “damned if you do, damned if you don’t” situation for employers. 

Disparate treatment (overt, intentional discrimination) and disparate impact (a hiring or promotional standard that has a discriminatory effect, regardless of intent) are both addressed under Title VII.  Under the Ricci decision, they are now pitted against one another.

The new standard announced by the court will make it much more difficult for employers to discard results of hiring and promotion tests once they are administered, even if they have a disproportionately negative impact on members of a given racial group.  Nevertheless, an employer who concludes it lacks a strong basis in the evidence (and the court did not define what that is) for refusing to throw out a test cannot prevent the filing of a disparate impact lawsuit nor can it be assured it will win that lawsuit.  In fact, according to the court’s majority, an employee can still win a disparate impact claim if the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.

It is now imperative for employers to put much more work and consideration to testing on the front end of the process.  Employers need to make sure a test does not have a disparate impact before administering the test, not after, as the City of New Haven did.  Additionally, employers who use testing will need to be able to rule out other alternatives that it might have used to make its hiring and promotional decisions.

One thing is almost certain, there are going to be changes made to this law.  Justice Ginsburg has already predicted that this decision “will not have staying power.”

There is a strong possibility that Congress will step forward and address the matter.  Senator Patrick Leahy (D-Vt.) released a statement saying that the majority’s decision “interprets the critical protections of Title VII in a way never intended by Congress when it passed this landmark law to prevent workplace discrimination more than 40 years ago.”  Senator Leahy is the Chair of the Senate Judiciary Committee, which often has jurisdiction over civil rights issues.   Another way that changes can be brought about is through further court actions.  Stay tuned….

The 93-page Ricci decision can be found here:  http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

Related posts:

1. Reverse Discrimination: How Will It Impact Sotomayor’s Confirmation?