OFCCP Issues FAQs on Ricci Decision

The U.S. Department of Labor has issued Frequently Asked Questions in the Ricci v. DeStafano Supreme Court decision and its implications for OFCCP affirmative action programs. In the FAQs, OFCCP emphasizes that the decision does not change how it will conduct compliance evaluations, nor will it affect contractors' affirmative action obligations or obligations regarding the use and validation of tests:

In Ricci v. DeStefano, 129 S. Ct. 2658 (June 29, 2009), the Supreme Court addressed when an employer may take a race-based action in order to correct a potentially discriminatory employment practice. Specifically, Ricci addressed whether the City of New Haven, Connecticut discriminated against a group of white firefighters in violation of Title VII of the Civil Rights Act when the City failed to certify and use the results of a test given to employees vying for promotions within the fire department. The City did not use the test results because they had an unintentional adverse impact on minorities and the City believed it would be liable for discrimination against minorities if the promotions were awarded. The City's decision negatively affected the white candidates, who had expected to be promoted but were not.

In its decision, the Supreme Court held that the City's action constituted intentional race-based discrimination that was not justified by a valid defense, in violation of Title VII. The Court found that New Haven's desire to avoid or remedy unintentional adverse impact on minority candidates, without more, was not a sufficient justification for its challenged action. Rather, the Court ruled, to justify such a race-based selection decision, an employer was required to demonstrate "a strong basis in evidence" that its challenged employment action was necessary to prevent unintentional disparate impact against minority candidates. The Court held that the City did not demonstrate that it had a strong basis in evidence that it would have been liable for disparate impact discrimination if it had certified the test results.

Go to: http://www.dol.gov/ofccp/regs/compliance/faqs/Ricci_FAQ.htm to view the FAQs.