Key decisions from the Supreme Court

Lexology
Kramer Levin Naftalis & Frankel LLP
Kevin B Leblang, Robert N Holtzman

When test reveals disparate impact, there may be no correct answer
In Ricci v DeStefano(1) the Supreme Court acknowledged that its task was to provide "guidance to employers" - but the challenge is figuring out exactly what that guidance is. After firefighters in the city of New Haven took a facially neutral promotional test, New Haven did not certify the test because a disproportionately low number of minorities passed it. The plaintiffs sued, accusing New Haven of disparate treatment.
The court framed the case as a question of whether an employer may commit disparate treatment discrimination in order to avoid disparate impact liability. In ruling that New Haven's decision not to certify the test was a race-based action and thus impermissible under Title VII, the court recited a new standard for employers to deal with. The court held that in order for an employer to take such an action, the employer had to have a "strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute".

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