Nova Southeastern University
Huizenga School of Business
Law and Ethics Classes
Supreme Court Affirmative Action “Disparate Impact” Case (2009)
By Professor Frank J. Cavico
In June of 2009, the U.S. Supreme Court ruled in an important affirmative action dealing with the “disparate impact” doctrine. In the case of Ricci v. DeStefano, the Court decided by a 5-4 determination that the city of New Haven, Connecticut had discriminated against white firefighters in violation of Title VII of the Civil Rights Act.
The city had discarded the promotion test results on which minorities had scored poorly. City officials contended that if the city did not discard the results the minority applicants would have sued the city. In New Haven, in 2003, 58 white firefighters, 23 blacks, and 19 Hispanics took the promotion tests to determine who would qualify as lieutenants and captains. Nineteen qualified for and were eligible for promotion. No blacks and two Hispanics qualified. There were 15 slots to fill. The city’s civil service board, however, refused to certify the results, thereby denying the promotions to all who had earned them. The city explained that it feared a disparate impact lawsuit civil rights lawsuit from the minority candidates. As a result, 17 white candidates and one Hispanic sued, claiming violations of their statutory rights under Title VII of the Civil Rights Act as well as constitutional violations pursuant to the Equal Protection clause. The lead plaintiff was Frank Ricci, who is dyslexic, and who said he studied for 8 to 13 hours a day for the test, hiring an acquaintance to tape record the study materials. The firefighters lost their case at the federal district court level and in the U.S. Court of Appeals for the Second Circuit. They then appealed to the U.S. Supreme Court, which reversed the lower court decisions.
Justice Anthony Kennedy, writing for the majority, stated that 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. He further stated that “the city rejected the test results because too many whites and not enough minorities would be promoted. Without some other justification, this express, race-based decision-making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. Justice Kennedy said that the purpose of Title VII was to promote hiring on the basis of job qualifications rather than on the basis of race or color. The goal of the statute, said Justice Kennedy, was to create a workplace free of discrimination where race was not a barrier to promotion. In the New Haven case, Justice Kennedy stated that “the city rejected the test results solely because the higher scoring candidates were white.”
The Wall Street Journal quoted at length Justice Kennedy who explained the rationale for the decision: “No individual should face workplace discrimination based on race. (The city) thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration….The process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expenses, and thus the injury caused by the City’s reliance on the raw racial statistics at the end of the process was all the more severe.”
Justice Samuel Alito, writing a concurring opinion, noted that the tests had been very fairly designed and that an effort had been made to eliminate all possible elements of racial bias in the promotion process. He noted that the city made no real effort to examine the legitimacy of the test and to see if the tests measured job-related knowledge and skills, but rather the city discarded the test results, which he condemned as an illegal act. Justice Kennedy also noted that the city took specific steps to ensure that black and Hispanic firefighters were consulted in designing the questions.
Justice Ruth Bader Ginsburg, writing for the dissent, agreed with the reasoning of the federal district court, which reasoned that the city’s decision was race-neutral since all the test results were disregarded and none of the candidates were promoted. She also pointed out that there has been a long history of racial discrimination in fire departments throughout the United States, and that past discrimination justified deference by the courts to employers who are trying to promote diversity in the ranks of firefighters. Justice Ginsburg also pointed out that the city of New Haven is now estimated to be 40% black, but there is only one African-American among the city’s 21 fire captains. Columnist David Broder, however, stated the he believes that today: “But, unlike in 1964, when blacks were being beaten for seeking their rights, the court – and perhaps the country – now shows as much or more sympathy for the white victims of reverse discrimination it finds in affirmative-action programs.”
Justice Kennedy noted in his decision a contradiction in U.S. civil rights law between the original language in Title VII, promulgated by Congress in 1964, which prohibits intentional discrimination on the basis of race and other protected characteristics, and a 1991 law, which was based on a 1971 Supreme Court decision, that prohibited employment tests that had a “disparate impact” on the hiring of racial minorities, unless the tests were demonstrated to be job-related and a business necessity. Tests must be not only relevant to the job, but there also must be a showing that no equally valid and less discriminatory tests or alternatives were available. Disparate impact is different from disparate treatment. Disparate treatment is illegal intentional discrimination based on race; whereas disparate impact applies to presumably neutral employment practices that nonetheless have a disparate or adverse effect on minorities. Both are illegal pursuant to Civil Rights laws. The Supreme Court, however, in the New Haven decision, did not strike down the disparate impact doctrine on constitutional grounds. The disparate impact doctrine is thus still the law. Rather, the Court invalidated the New Haven employment decision of discarding the tests by saying the city had violated Title VII of the 1964 statute. Yet in the future, for an employer to throw out a test that has a disparate impact, the employer must have, says the Court, “a strong basis in evidence” that the employer will be sued before discarding test results solely based on race. Justice Stevens stated that absent “strong evidence of a disparate-impact violation,” an employer will not be able to disregard tests solely on the racial disparity of the results. However, an employer will still be allowed to bring in racial considerations and potential racial impact into the testing process but now the employer must do so “during the test-design stage,” said Justice Kennedy. Yet after the tests are given, only in “certain, narrow circumstances,” said Justice Kennedy, employers may disregard the results only if there is a “strong basis of evidence” that using the results would cause the employer to lose a disparate impact lawsuit.
The response to the Court’s ruling from employment law attorneys and human resources managers to the decision has been varied. It will certainly have an impact. Yet what impact? The Wall Street Journal stated that “uncertainty” has now been produced in the area of tests for employment and promotion. The New York Times stated that the decision puts employers in a “damned if they do, and damned if they don’t situation”! Clearly, the new tests enunciated by the Court will it much more difficult for employers to discard test results once they are administered, even if the tests have a disparate impact and disproportionately negative impact on members of a given racial group. Employers thus will review their tests to be sure they are free of bias and are job-related. However, if tests or hiring, promotion, or layoff criteria are revised, especially after the fact if there is a disparate impact, to favor or protect minorities, then employers risk being sued for reverse discrimination as the city of New Haven was. Consequently, employers may abandon testing altogether. Or, conversely, they may use them more broadly. Moreover, although the case dealt with a public sector employer, particularly those who use civil service exams, the legal standards announced by the Court applies to all employers, including private sector employers; and the decision also applies not just to tests but to any type of policies and procedures used to evaluate, rank, and sort current and potential employees. The Wall Street Journal noted that in the private sector tests for hiring and promotion are most commonly used by retailers, manufacturers, telecommunication firms, and businesses with large sales forces. One employment law professor was quoted in the Miami Herald as warning employers that if they are concerned about the makeup of their supervisory ranks, then they must think very carefully about what type of test they are going to use at the “front end.” They also must make sure that the tests and for that matter their whole employment selection process is fair. The objective, according to one government human resource attorney, is for employers to make their selection criteria “bulletproof.” Of course, this might make employers very cautious in using test, which could include personality tests, computer skills and physical fitness tests, and honesty tests. Moreover, on the other extreme, some employers in order to avoid litigation may abandon written tests completely in favor of other methods of selection and promotion, such as assessment centers, where applicants are evaluated in simulated real-life situations o see how they would handle them. Supporters of these assessment centers say they are better vehicles to measure communication and leadership skills as well as an applicant’s ability to handle emergencies. The decision, at the least, will motivate employers to re-evaluate what additional tools and processes are available to them in selecting and promoting employees. Outside experts and agencies should also see an increase in business as employers seek to independently validate tests. So, as noted in the New York Times, the employment situation, after this Supreme Court decision, is “muddled.” Yet one thing seems evident, and that is the Supreme Court decision will lead to more work and “trouble” for employers, according to the Wall Street Journal, and more litigation, according to the New York Times, and consequently more expense and costs for the employer.
Furthermore, as noted previously, the New Haven case was determined pursuant to Title VII. The constitutional issues were not addressed in the majority decision. However, Justice Antonin Scalia did state that there is a “war to be waged” between the disparate impact doctrine and the Equal Protection Clause of the 14th Amendment to the Constitution. Under the 14th Amendment, which guarantees to persons equal protection of the laws, all racial classifications are highly suspect and are thus subject to “strict scrutiny” by the courts, which will uphold them only if there are very compelling reasons.
A seminal legal, as well as ethical question, in all these affirmative action cases, is when is it legal, as well as moral, to discriminate against one group in order to make redress for and to remedy discrimination against other groups.
Bibliography: Bravin, Jess and Sataline, Suzanne, “Ruling Upends Race’s Role in Hiring,” The Wall Street Journal, June 30, 2009, pp. A1, A4; Broder, David, “Rulings say racial discrimination has eased,” The Miami Herald, July 3, 2009, p. 21A; Doyle, Michael, “Ruling backs white firefighters,” The Miami Herald, June 30, 2009, p. 3A; Greenhouse, Seven, “For Employers, Ruling Offers Little Guidance on How to Make Their Hiring Fair,” The New York Times, June 30, 2009, p. A13; Liptak, Adam, “Supreme Court Finds Bias Against White Firefighters,” The New York Times, June 30, 2009, pp. A1, A13; Notable & Quotable, “From Justice Anthony Kennedy’s majority opinion in the case of Ricci v. DeStefano,” The Wall Street Journal, June 30, 2009, p. A15; Thernstron, Abigall, “The Supreme Court Says No To Quotas,” The Wall Street Journal, July 1, 2009, p. A13, Tuna, Carl, Koppel, Nathan, and Sanserino, Michael, “Job-Test Ruling Cheers Employers,” The Wall Street Journal, July 1, 2009, p. B1.
Questions for Discussion:
1. Do you agree with the Court’s majority decision on the legal grounds of the Civil Rights Act violation? Were the white firefighters discriminated against? Why or why not?
2. Do you agree with the dissenting opinion that there was no civil rights violation since all the candidates for promotion were treated equally when the test results were discarded for everyone? Why or why not?
3. Is the Court’s decision a moral one on Utilitarian ethical grounds? Why or why not?
4. Is it a moral one pursuant to Kantian ethics? Why or why not?
5. Do you agree with columnist David Broder that the country, “perhaps,” might now be more sympathetic to the “white victims of reverse discrimination”? Why or why not?
6. Should the Disparate Impact doctrine be struck down as unconstitutional for violating the Equal Protection Clause of the 14th Amendment to the U.S. Constitution? Why or why not?
7. How should an employer approach the subject of testing its employees based on the Court’s decision? Do you think the decision will result in more, or less, testing? Why?