American Association for Affirmative Action
Press Release
June 30, 2009Press Release
Court creates confusion in Ricci v. DeStefano case by imposing a tougher standard for excluding discriminatory selection procedures
Washington, D.C. - June 30, 2009 - The American Association for Affirmative Action (AAAA), an association of equal employment opportunity (EEO), diversity and affirmative action professionals founded in 1974, expressed disappointment in the U.S. Supreme Court's decision in the Ricci v. DeStefano case, handed down on June 29, 2009. In Ricci, the City of New Haven, CT., administered a test for firefighter promotional opportunities and subsequently chose not to proceed when the results showed "adverse impact", i.e., that none of the African-American candidates would have been eligible for promotion. Ricci, a successful white candidate, filed suit alleging that the city's decision was unconstitutional and violated Title VII of the Civil Rights Act of 1964. In a 5-4 decision, the Supreme Court found for the white plaintiffs and held that the city violated Title VII because it needed to establish a "strong basis in evidence" that the exams were not job related or that another, less discriminatory test existed.
"This 'strong basis in evidence' test creates a higher burden for employers who discover that their selection processes may have an adverse impact on women or racial groups," said ReNee Dunman, AAAA's president. "Without articulating what the 'strong basis in evidence' standard means, or remanding the case so this issue can be explained, this ruling also places employers between a rock and a hard place: if they find that their selection processes have an adverse effect on some racial groups or women, they have to risk litigation if they use the tests or if they don't." The Court's decision will lead to confusion and to more litigation. The decision also creates an expectation by the successful candidates that they will be hired or promoted based on the results of the test and effectively limits the employer's discretion.
A majority of the Court acknowledged that employment discrimination continues to exist, however. Total discrimination charges filed with the Equal Employment Opportunity Commission increased 15% in one year from 82,792 in FY 2007 and 95,402 in FY 2008. Fire Departments around the country, including in New Haven, have a long history of excluding minorities and women, and that history is often perpetuated today through vestiges of arbitrary selection procedures from a bygone era. As Justice Ginsburg wrote, "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow." Employers and governments continue to have an obligation to take proactive measures to end discrimination.
Despite the Court's disappointing ruling, the law continues to require employers to avoid policies that are discriminatory in practice, and there is a range of steps that employers can take to make sure they are providing equal opportunity in the workplace. "We call on the President (and the civil rights agencies, including the Equal Employment Opportunity Commission, the Department of Labor and the Department of Justice) to work with dispatch and issue guidance for employers on their equal opportunity obligations in light of this decision," added Ms. Dunman.
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Washington, D.C. - June 30, 2009 - The American Association for Affirmative Action (AAAA), an association of equal employment opportunity (EEO), diversity and affirmative action professionals founded in 1974, expressed disappointment in the U.S. Supreme Court's decision in the Ricci v. DeStefano case, handed down on June 29, 2009. In Ricci, the City of New Haven, CT., administered a test for firefighter promotional opportunities and subsequently chose not to proceed when the results showed "adverse impact", i.e., that none of the African-American candidates would have been eligible for promotion. Ricci, a successful white candidate, filed suit alleging that the city's decision was unconstitutional and violated Title VII of the Civil Rights Act of 1964. In a 5-4 decision, the Supreme Court found for the white plaintiffs and held that the city violated Title VII because it needed to establish a "strong basis in evidence" that the exams were not job related or that another, less discriminatory test existed.
"This 'strong basis in evidence' test creates a higher burden for employers who discover that their selection processes may have an adverse impact on women or racial groups," said ReNee Dunman, AAAA's president. "Without articulating what the 'strong basis in evidence' standard means, or remanding the case so this issue can be explained, this ruling also places employers between a rock and a hard place: if they find that their selection processes have an adverse effect on some racial groups or women, they have to risk litigation if they use the tests or if they don't." The Court's decision will lead to confusion and to more litigation. The decision also creates an expectation by the successful candidates that they will be hired or promoted based on the results of the test and effectively limits the employer's discretion.
A majority of the Court acknowledged that employment discrimination continues to exist, however. Total discrimination charges filed with the Equal Employment Opportunity Commission increased 15% in one year from 82,792 in FY 2007 and 95,402 in FY 2008. Fire Departments around the country, including in New Haven, have a long history of excluding minorities and women, and that history is often perpetuated today through vestiges of arbitrary selection procedures from a bygone era. As Justice Ginsburg wrote, "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow." Employers and governments continue to have an obligation to take proactive measures to end discrimination.
Despite the Court's disappointing ruling, the law continues to require employers to avoid policies that are discriminatory in practice, and there is a range of steps that employers can take to make sure they are providing equal opportunity in the workplace. "We call on the President (and the civil rights agencies, including the Equal Employment Opportunity Commission, the Department of Labor and the Department of Justice) to work with dispatch and issue guidance for employers on their equal opportunity obligations in light of this decision," added Ms. Dunman.
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