July 2009
On June 29, 2009, the Supreme Court held a city's action in discarding promotion test results violated Title VII of the Civil Rights Act. Ricci v. DeStafano, 557 U.S. ___ (2009). This ruling may place some employers between a rock and hard place when it comes to hiring and promotion policies.
The City of New Haven Connecticut administered an exam to determine which firefighters would qualify for promotion. The exam results, however, were weighted heavily against minority candidates. City administrators feared that if they certified the results they could be sued by minority (black) firefighters whose test scores were disproportionately lower than those of whites and Hispanics; consequently, they threw out the test results. This decision turned out to be a jump from the proverbial frying pan, into the fire when white and Hispanic firefighters who had passed the exam, sued because the city's decision cost them their promotions. Thus, this case proceeded on a so-called "reverse discrimination" theory, where a move to benefit a minority group wound up harming members of the majority race.
In a 5-4 ruling, the Supreme Court held the city's action in discarding the exam results directly discriminated against the white and Hispanic firefighters on the basis of race in violation of Title VII. The Court reasoned the city's only justification for discarding the exam results was because the higher scoring candidates were predominately white. In order to avoid liability the city required a "strong basis in evidence" that had it certified the exam results it would have been liable for the impact on minority firefighters in violation of Title VII. The opinion states "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." The Court, however, failed to define or provide an example of what would amount to a "strong basis in evidence" that would justify discarding the test results.
Civil rights groups are claiming this decision will diminish efforts by employers to ensure that employment and promotional criteria (tests, etc.) do not have a disproportionate adverse impact on minorities. Our take on this decision is less dramatic. We believe that employers, especially those in the public sector, will continue to measure employment criteria for its adverse impact on minorities; however, in light of this decision employers will no doubt be forced to articulate something more than fear of litigation from minorities as a basis for throwing out test results or other criteria used for promotions or other employment decisions. The question the Supreme Court left unanswered is what kind of rationale will satisfy its new "strong basis in evidence" standard.
Perhaps the most significant impact of this decision, given the country's recession, will not involve promotions but reductions in force (RIFs). Prudent employers plan RIFs by selecting criteria to determine who is to be laid off/terminated, but before implementing the RIF they measure the impact of the chosen criteria on various protected classes (i.e. based on age, race, gender, etc.). Often times employers modify criteria after determining its use would have a disparate impact on one or more groups. At least where race is concerned, employers will now need to concern themselves with the Ricci decision and the catch-22 it creates for possible reverse discrimination claims.
As with any broad practice impacting employment decisions, whether they involve hiring, promotion, termination, etc., it is best to consult with experienced legal counsel to avoid costly class action lawsuits by those who may claim to have been adversely affected.
Questions? Please contact WS Shareholder and Senior Attorney James Sherman in our Minneapolis, MN office at (952) 746-1700, or jasherman@wesselssherman.com.
