Many people believe that the decision for Ricci v. DeStefano added to the confusion and misunderstandings of Affirmative Action as well as the Civil Rights Act of 1991 and disparate-impact discrimination. This case has been looked at as a reverse discrimination case, and although some observers feel it was a needed decision for reverse discrimination, others feel that it will only make things more difficult for employers who want to protect themselves from liability under Title VII. Ricci v. DeStefano Case Summary
In 2003, the City of New Haven, Connecticut 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, 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. " Ultimately, the Board was deadlocked on the issue of whether to certify a list of eligible candidates for promotion, based on the test results. 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, 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 case then went to the Supreme Court. McConnell & Pierre) The issue before the court is 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 violated US Code on Unlawful Employment Practices, 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.
Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is “job related for the position in question and consistent with business necessity.
If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). 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. Cornell University Law School) The Court's analysis begins with the premise that the City's actions would violate Title VII's disparate-treatment prevention without some valid defense.
All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision making is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. FindLaw: For Legal Professionals) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for the respondents is that such a prima facie case is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results.
That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Cornell University Law School) The City's assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions.
The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams' validity. FindLaw: For Legal Professionals) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.
If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. (Cornell University Law School) Cases and Laws which Affected Court Opinion Watson v. Fort Worth Bank & Trust Each of this Court's decisions applying disparate impact analysis - under which facially neutral employment practices, adopted without a deliberately discriminatory motive, may in operation be functionally equivalent to illegal intentional discrimination.
They involved standardized tests or criteria, such as written aptitude tests or high school diploma requirements. The Court has consistently used disparate treatment theory, in which proof of intent to discriminate is required, to review hiring or promotion decisions that were based on the exercise of personal judgment or the application of subjective criteria. FindLaw: For Legal Professionals) The reasons supporting the use of disparate impact analysis apply to subjective employment practices.
That analysis might effectively be abolished if it were confined to objective, standardized selection practices, since an employer could insulate itself from liability under Griggs and its progeny simply by combining such practices with a subjective component, such as a brief interview, in a system that refrained from making he objective tests absolutely determinative, and could thereby remain free to give those tests almost as much weight as it chose without risking a disparate impact challenge. Moreover, disparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests, since, in either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices.
Simply because no inference of discriminatory intent can be drawn from the customary and reasonable practice in some businesses of leaving promotion decisions to the unchecked discretion of the lower level supervisors most familiar with the jobs and candidates, it does not follow that these supervisors always act without discriminatory intent. Even if it is assumed that discrimination by individual supervisors can be adequately policed through disparate treatment analysis, that analysis would not solve the problem created by subconscious stereotypes and prejudices that lead to conduct prohibited by Title VII. FindLaw: For Legal Professionals) City of Richmond v. J. A. Croson Company Without a showing that a race-based initiative was created to remedy past racial discrimination and that it supports a compelling governmental interest, the race-based initiative is unconstitutional and cannot withstand strict-scrutiny. All classifications based on race must be supported by a compelling government interest and withstand strict-scrutiny. The Supreme Court of the United States finds that the Plan failed to consider race-neutral measures that would encourage more minority participation in the construction program.
Also, the 30% quota allowed by the Plan was not “narrowly tailored to any goal, except perhaps outright racial balancing. ” The race-based measure of Richmond, Virginia’s construction set-aside program makes only a “generalized assertion that there has been past discrimination in . . . [the construction industry and] provides no guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. ” (City of Richmond v. J. A. Croson Company) Wygant v. Jackson Board of Education Societal discrimination alone is insufficient to justify a racial classification.
Rather, there must be convincing evidence of prior discrimination by the governmental unit involved before allowing limited use of racial classifications to remedy such discrimination. The "role model" theory employed by the District Court would allow the Board to engage in discriminatory hiring and layoff practices long past the point required by any legitimate remedial purpose. Moreover, it does not bear any relationship to the harm caused by prior discriminatory hiring practices. Societal discrimination, without more, is too vague a basis for finding race-conscious state action and for imposing a racially classified remedy.
If the purpose of the layoff provision was to remedy prior discrimination, as the Board claims, such purpose, to be constitutionally valid, would require the District Court to make a factual determination that the Board had a strong basis in evidence for its conclusion that remedial action was necessary. No such finding has ever been made. (Cornell University Law School) Cases Affected by Ricci v. DeStefano United States v. New York City Bd. of Educ. In 1996, the United States sued the New York City Board of Education, alleging that the City’s hiring process for the custodians and custodian engineers in its public schools violated Title VII.
Specifically, the lawsuit alleged that the City had used civil service examinations that discriminated against blacks and Hispanics (given the statistically significant disparities in their passage rates as compared to those of white test-takers), and had also used recruiting practices that discriminated against blacks, Hispanics, Asians, and women. The parties ultimately reached a settlement that, in part, provided retroactive seniority to 63 black, Hispanic, Asian, or female employees. Meanwhile, a group of incumbent employees (principally white males) who objected to the agreement tried to intervene.
Although they were initially denied leave to do so, they were ultimately allowed to intervene, and they then brought their own lawsuits, alleging that the settlement agreement amounted to reverse discrimination against them, in violation of both Title VII and the Equal Protection Clause. After years of litigation, the United States District Court for the Eastern District of New York upheld a significant part of the settlement agreement. The incumbent employees then appealed. In a lengthy decision, the Second Circuit vacated the district court’s approval of the settlement agreement.
The Second Circuit began by explaining that after the district court issued its decision in this case, the Supreme Court decided Ricci v. DeStefano, the “reverse discrimination” case involving New Haven firefighters. Ricci involved the intersection of two different provisions of Title VII: (1) its prohibition of disparate treatment on the basis of race, color, religion, sex, or national origin and (2) its prohibition of disparate-impact discrimination, which occurs when an employer uses an employment practice that has a disproportionately adverse impact on individuals who fall into a certain race, color, religion, sex, or national origin.
In Ricci, the Supreme Court held that New Haven had violated Title VII when, in an attempt to avoid disparate-impact liability, it decided not to certify the racially-disparate results of a promotional examination for its firefighters. The Ricci Court stated 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,” and that New Haven had not met that standard.
The Second Circuit concluded that the Ricci test was directly applicable to this case. The court explained that the settlement agreement here was explicitly race-based and sex-based, giving retroactive seniority to a group of 63 black, Hispanic, Asian or female employees at the expense of the incumbent employees who were now suing. Absent a valid defense, the court reasoned, this constituted unlawful disparate treatment under Title VII.
The court then went on to address the two potential defenses here: (1) that the settlement agreement amounted to a valid affirmative action plan; or (2) that the settlement agreement was justified in order to remedy a disparate impact violation (i. e. , the argument made in Ricci). (Gold Waldman) Briscoe v. City of New Haven In Ricci v. DeStefano , the Supreme Court ruled in favor or Ricci, and New Haven certified the test results.
An African-American firefighter who had taken the promotion exam, Michael Briscoe, then filed a disparate-impact suit, challenging the weighting of the test (under which 60% of the score was attributed to the written portion and 40% to the oral portion). Briscoe sought to enjoin the 60/40 weighting going forward, and further sought his own promotion (without displacing any of the Ricci plaintiffs who had already been promoted due to the certification).
The United States District Court for the District of Connecticut granted New Haven’s motion to dismiss, however, stating that the Supreme Court’s Ricci holding “squarely forecloses Briscoe’s claims. ” The Second Circuit reversed. The court explained that New Haven was arguing that “an employer can engage in conduct yielding a disparate impact [i. e. , certifying the test results here] if it has a strong basis in evidence to believe it will be subject to disparate-treatment liability if it acts otherwise. The court acknowledged that the sentence in Ricci about a potential future disparate-impact suit over certification of the results had pointed in that direction.
But the court concluded that this was “one sentence of dicta” that, if literally applied, would “effect a substantial change in Title VII disparate-impact litigation. ” The court declined to interpret Ricci that way, explaining that it could not “reconcile the dicta…with either the Court’s actual holding in Ricci or long-standing, fundamental principles of Title VII law. The court reasoned that elsewhere, the Ricci opinion had indicated that it was only addressing the standard for disparate-treatment liability (and when it could be avoided due to concerns about disparate-impact liability), and not the standard for disparate-impact liability itself. “We cannot reconcile all of the indications from the Supreme Court in Ricci,” the court concluded, holding that “Briscoe’s claim is neither precluded nor properly dismissed. ” The court added, however, that it was expressing no view as to whether other issues might warrant dismissal of the case.
The court also stated that the original Ricci plaintiffs who had already been promoted “remain entitled to the full fruits of the Supreme Court judgment that they obtained,” and that Briscoe’s relief going forward could not conflict with the relief that those firefighters had already won. (Waldman) Understandings about the Court’s Decision The Court's decision was based entirely on Title VII and it was mostly concerned with the relationship between the two principal theories of liability under that statute: disparate treatment and disparate impact.
Title VII prohibits intentional discrimination based on race, color, religion, sex, or national origin. Title VII forbids a covered employer from testing minority applicants or employees but not testing their white counterparts. This is called “disparate treatment” discrimination. Title VII also prohibits employers from using neutral tests or selection procedures that have the effect of disproportionately excluding persons based on race, color, religion, sex, or national origin, where the tests or selection procedures are not “job-related and consistent with business necessity.
This is called “disparate impact” discrimination. (The U. S. Equal Employment Opportunity Commission ) George Rutherglen comments, if claims for disparate impact could routinely be brought by any group, including white males, then employers would be subject to some form of liability for any practice that did not result in racial and gender balance. If the practice were intentionally discriminatory, they would be liable to the victims of such discrimination, but if it were neutral, they would be liable to any group that suffered from the resulting imbalance.
In order to preserve some range of managerial discretion, the theory of disparate impact has to be constrained in some way. (Rutherglen, 2009) In the Texas Review of Law and Politics, Kristina Campbell comments that since the Court's ruling in Ricci, lower courts have read Ricci to reaffirm and emphasize the importance of the disparate treatment provision of Tide VII. " Lower courts have additionally stressed that the purpose of Title VII is to promote hiring on the basis of job qualifications, not on the basis of a protected characteristic, emphasizing the priority of the disparate-treatment provision over the disparate-impact provision. " In cases with disparate impact claims, lower courts have read Ricci to make clear that a statistical disparity will only be a "threshold showing" in a disparate impact case, and the employee must still show that the employer's action was not consistent with business necessity or that there was an equally valid, less-discriminatory alternative that the employer refused to adopt. "
Most importantly, lower courts have interpreted Ricci to hold that evidence that an employer utilized an affirmative action plan may constitute direct evidence of unlawful discrimination, and in such a case, the relevant inquiry is whether the affirmative action plan is valid under Title VII and under the Equal Protection Clause. "^ Lastly, it should be noted that since the Court's uling in Ricci, several black firefighters have filed suit or drafted Equal Employment Opportunity Commission complaints, claiming that the City disproportionately considered the written and oral sections of the test, causing a disparate impact on black firefighters, and the City unjustly denied them promotions. (Campbell, 2010) Campbell also shares that Ricci has also resulted in increased scrutiny of all employment practices, specifically decisions based on written examinations or similar forms of testing. '"
This increased scrutiny has brought tremendous uncertainty, as the Court did not establish clear guidelines for employers. Campbell, 2010) From the Northwestern University Law Review, Charles A. Sullivan says that in terms of advice to employers, it would seem that, at least theoretically, Ricci made things more complicated. Disparate treatment of minorities remains forbidden. Disparate treatment of white males remains forbidden—except to avoid disparate impact against minorities. Disparate impact (that is, unjustified disparate impact) against minorities remains forbidden, albeit there is an argument that dicta in Ricci create a "strong basis in evidence" defense even to unjustified disparate impact.
The leeway employers had to avoid potential disparate impact suits has been narrowed considerably, but employers still need to assess the impact, the justifications, and the alternatives of various potential courses of action before proceeding. Finally, even where the possibility of disparate impact liability is influencing a course of action, the employer may well remain free to take racial impact into account in choosing among various alternatives (free of disparate impact liability), as long as it does so early enough to avoid disrupting settled expectations. (Sullivan, 2010)
Conclusion Many people believe that the decision for Ricci v. DeStefano added to the confusion and misunderstandings of Affirmative Action as well as the Civil Rights Act of 1991 and disparate-impact discrimination. This case has been looked at as a reverse discrimination case, and although some observers feel it was a needed decision for reverse discrimination, others feel that it will only make things more difficult for employers who want to protect themselves from liability under Title VII. At least a majority of the Court recognized the conflicting directives of the Equal Protection Clause and Title VII and the pressing need for understanding. Unfortunately, this case didn’t clarify those issues.