Robin Foret
July 3, 2009 — 2,898 views  
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On June 29, 2009, the United States Supreme Court concluded that the City of New Haven Connecticut (the “City”) engaged in impermissible reverse discrimination when it discarded test results and refused to promote white firefighters who qualified for promotions based on their test scores.   The Supreme Court rejected the City’s argument that it feared certification of the test results, which would have resulted in no promotions of African Americans and the promotion of only two Hispanics, would lead to claims for disparate impact discrimination based on the test’s tendency to screen out minorities.  The Court stated that this result, without more, was no defense to a reverse race discrimination claim.   Instead, the City would have had to prove that there was a “strong basis in evidence” to believe it would have been subject to liability for disparate impact discrimination, which the City failed to show.  The problem is that the Court’s decision offers little guidance to employers faced with a similar set of facts, and will likely increase the number of discrimination lawsuits filed.     


In an attempt to locate qualified firefighters for promotions to the positions of Captain and Lieutenant, the New Haven Fire Department conducted examinations designed by an outside consulting service.  As required by a collective bargaining agreement the test consisted of two portions (60% based on a written exam and 40% based on an oral exam).  The City also used a system called the “rule of three” that required the City to promote only from “those applicants with the three highest scores.”  Based on the tests results and the “rule of three,” out of a total of 41 employees who took the Captain exam, no African Americans and only two Hispanics qualified for a promotion.  Of the 77 firefighters who took the Lieutenant’s exam, no African Americans or Hispanics qualified for promotions. 

Following much debate, which included hearings conducted by the New Haven Civil Service Board (“CSB”), it was decided that the test should not be certified and no promotions made.  The CSB’s decision not to certify the test resulted in this lawsuit filed by 17 white firefighters and 1 Hispanic firefighter who were denied promotions.  The District Court ruled in favor of the City and other defendants named finding that the City’s motivation to avoid making promotions (i.e., that the test appeared to have a racially disparate impact against minorities) does not automatically constitute reverse discrimination against the white firefighters.  The Second Circuit Court of Appeals, in a one-paragraph order issued by a three judge panel, one of whom was Supreme Court nominee Judge Sonya Sotomayer, affirmed the lower court decision.  The fact that Judge Sotomayer was involved in this case makes it particularly interesting and undoubtedly, will be the source of much future debate.


In order to better understand the implications of the Supreme Court’s decision, a short tutorial on this area of law is helpful.  Title VII of the Civil Rights Act of 1964, as amended in 1991 (“Title VII”), prohibits conduct that intentionally discriminates against those of a certain race, color, religion, sex or national origin, which is also known as “disparate treatment” discrimination.   Title VII further prohibits policies or practices that are not intended to discriminate, but which have a disproportionate adverse effect on minorities, also known as “disparate impact” discrimination.   This is the sort of discrimination about which the City was concerned when it decided not to certify test results that would result in no African American applicants and only two Hispanics being promoted. 

Generally, if an employee shows that a policy or practice has a disparate impact, the employer may defend by demonstrating that the policy or practice is job related for the position in question and consistent with business necessity.  The employee may still prevail if he or she can establish that the employer refused to adopt an available alternative practice that would have had less of a disparate impact, but which would have served business interests.  These two types of discrimination can present problems for employers who are faced with well-intended procedures that may ultimately have a disparate impact on a minority group.  If the employer chooses to ignore a possible problem with the policy or procedures implemented, a disparate impact discrimination lawsuit may result.  On the other hand, if the employer believes that the policy, procedure or test may be seriously flawed and wishes to remedy any possible impact on minorities, other employees who are affected by any remedial employment actions can sue for reverse discrimination.    


In reversing the Court of Appeals’ ruling in favor of the City, the Supreme Court announced a new standard for employers seeking to avoid liability for potential disparate impact claims through conduct that may constitute reverse discrimination.  The Court held that under Title VII, before an employer can engage in actions that may constitute reverse discrimination for the asserted purpose of avoiding or remedying unintentional disparate impact discrimination, the employer must have a “strong basis in evidence” to believe it will be subject to disparate-impact liability if it does not make a race-conscious decision to correct the disparity.  In other words, a statistical disparity, in addition to fear of a disparate impact lawsuit, is not enough to justify remedial actions that could lead to reverse discrimination.   To develop this standard, the Court relied on cases analyzed under the Equal Protection Clause of the Fourteenth Amendment in which certain government actions taken to remedy past racial discrimination must be shown to have a strong basis in evidence that the remedial actions were necessary.   

The Supreme Court, however, did not explain how this new “strong basis in evidence” standard can be satisfied, making it impossible to determine how this standard will be applied in the future.   This will undoubtedly result in enormous confusion as to how to satisfy the competing interests of Title VII when confronted with a policy or procedure, no matter how well-intentioned at the outset, which ultimately has a disparate impact on a minority group. 


In the face of a politically charged and unclear ruling by the United States Supreme Court, what is an employer to do?  Until the courts provide additional guidance in this area, employers contemplating testing applicants for promotions should be careful to design tests that evaluate only the qualifications necessary to perform the essential job duties for the open positions.  This will enable the employer to be better prepared to launch a business necessity defense to a disparate impact claim.  In light of the ruling in Ricci, any employer who wishes to make a decision that could constitute reverse discrimination in an attempt to correct a policy or procedure’s disparate impact on a minority group must show precisely why the policy or procedure was flawed and the alternative measures that will be adopted to reduce or eliminate the disparate impact without abandoning the legitimate business interest of implementing policies that are job related and consistent with business necessity.      

The information contained in this article is not designed to address specific situations, and does not include rules or regulations that apply to all states.  If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters. 


Robin Foret

The Foret Law Firm

Robin Foret practices in the areas of employment law, commercial litigation and specialty insurance defense claims. She handles a variety of employment matters such as theft of trade secrets, breach of employment agreements, non-competition agreements, wage and hour issues under the Fair Labor Standards Act (FLSA), discrimination and harassment issues under Title VII of the Civil Rights Act of 1964 (Title VII) and the Texas Commission on Human Rights Act (TCHRA), the Americans with Disabilities Act (ADA), Family Medical Leave Act (FMLA) issues, and the Sarbanes-Oxley Act (SOX). Robin has handled a wide variety of employment law matters for employers, as well as for executive-level employees, before agencies, and state and federal courts.