Justices Rule for White Firefighters in Bias Case

The New York Times
June 29, 2009
By ADAM LIPTAK

WASHINGTON — The Supreme Court ruled on Monday that white firefighters in New Haven were subjected to race discrimination when the city threw out a promotional examination on which they had done well and black firefighters poorly.
“The city rejected the test results solely because the higher scoring candidates were white,” Justice Anthony M. Kennedy wrote for the majority, adding that the possibility of a lawsuit from minority firefighters was not a lawful justification for the city’s action.
“Fear of litigation alone,” Justice Kennedy wrote, “cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
The 5-to-4 ruling, which reversed an appeals court decision joined by Judge Sonia Sotomayor, now a Supreme Court nominee, will have broad impact, lawyers specializing in employment discrimination law said.
“This decision will change the landscape of civil rights law,” said Sheila Foster, a law professor at Fordham.
The new standards announced by the court will make it much harder for employers to discard the results of hiring and promotion tests once they are administered, even if they have a disproportionately negative impact on members of a given racial group.
Public employers that use civil service examinations and similar tests will be most directly affected, but the principle announced by the court applies to all employers and all sorts of procedures used to rank and sort potential and current employees.
Justice Ruth Bader Ginsburg, reading a dissenting statement from the bench, said the majority had undermined a crucial civil rights law. “Congress endeavored to promote equal opportunity in fact, and not simply in form,” she said. “The damage today’s decision does to that objective is untold.”
The New Haven case had drawn wide interest, in part because of Judge Sotomayor’s role in it.
Supporters of her Supreme Court nomination said Monday’s decision changed the law and thus did not reflect negatively on the decision she participated in. Critics asserted that the appeals court’s approach had not been fully endorsed by any justice.
Justice Kennedy, writing for himself and the four members of the court’s conservative wing, said the case required the court to try to reconcile two aspects of Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in employment.
The “original, foundational” core of Title VII, Justice Kennedy wrote, prohibits intentional discrimination against individuals on the basis of race — “disparate treatment,” in the legal jargon. But the law also prohibits some seemingly neutral practices that have a “disparate impact” on members of racial groups.
Many of the plaintiffs in the case — 18 white firefighters, one of them Hispanic — studied intensively for the test, giving up second jobs and missing family celebrations. The lead plaintiff, Frank Ricci, who is dyslexic, said he studied for 8 to 13 hours a day, hiring an acquaintance to tape-record the study materials.
New Haven argued that it had acted in good faith in throwing out the exam results, fearing a disparate-impact suit from minority firefighters.
That was not enough, Justice Kennedy wrote. Indeed, allowing “employers to discard the results of lawful and beneficial promotional exams even when there is little if any evidence of disparate-impact discrimination,” he wrote, “would amount to a de facto quota system.”
But the majority did not rule out consideration of disparate impact altogether. Employers may consider potential racial impact “during the test-design stage,” Justice Kennedy wrote.
And, in “certain, narrow circumstances” after tests are given, he continued, employers may discard the results if they can demonstrate “a strong basis in evidence” that using the results would cause them to lose a disparate-impact suit.
That heightened standard, Justice Kennedy wrote, requires employers to show that the tests were not relevant to the jobs at issue or that other “equally valid and less discriminatory tests were available.”

Full Story: http://www.nytimes.com/2009/06/30/us/30scotus.html?ref=us