Fighting Fire with Stats
Ricci v DeStefano
557 U.S. 557 (2009)

Facts

In 2003, 118 firefighters in the city of New Haven, Connecticut, took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (City) were infrequent, so the stakes were high. Exam results determined which firefighters would be considered for promotions during the next two years, and their order for consideration. Many firefighters, including Frank Ricci, studied for months, at considerable personal and financial cost.

The examination results showed that white candidates had outperformed minority candidates. Seventy-seven candidates completed the lieutenant examinationâ€”43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passedâ€”25 whites, six blacks, and three Hispanics. Eight lieutenant positions were vacant at the time of the examination, which meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Subsequent vacancies would have allowed at least three black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examinationâ€”25 whites, eight blacks, and eight Hispanics. Of those, 22 candidates passedâ€”16 whites, three blacks, and three Hispanics. Seven captain positions were vacant at the time of the examination. Nine candidates were eligible for an immediate promotion to captainâ€”seven whites and two Hispanics.

Following a briefing on the exam results, the mayor and other local politicians opened a public debate on the results that turned rancorous. The firefighters argued that the test results should be discarded because the results were discriminatory. Some firefighters threatened a discrimination lawsuit if the city made the promotions on the basis of the tests. Other firefighters said the exams were neutral and fair, and they, in turn, threatened a discrimination lawsuit if the city, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end, the city took the side of those who protested the test results. It threw out the examination results. Mr. Ricci and others filed suit.

The federal district court found that there was discrimination against the white and Hispanic firefighters, and the city (respondents) appealed. The appellate court reversed the district courtâ€™s decision. The firefighters (petitioners) appealed to the U.S. Supreme Court.

Judicial Opinion

KENNEDY, Justice

The Cityâ€™s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on raceâ€”i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because â€œtoo many whites and not enough minorities would be promoted were the lists to be certified.â€ Without some other justification, this express, race-based decision making violates Title VIIâ€™s command that employers cannot take adverse employment actions because of an individualâ€™s race.

Whatever the Cityâ€™s ultimate aimâ€”however well intentioned or benevolent it might have seemedâ€”the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a â€œfocus on statistics â€¦ could put undue pressure on employers to adopt inappropriate prophylactic measures.â€

Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of â€œpractices that are fair in form, but discriminatory in operation.â€ But it has also prohibited employers from taking adverse employment actions â€œbecause ofâ€ race. Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employersâ€™ voluntary compliance efforts, which are essential to the statutory scheme and to Congressâ€™s efforts to eradicate workplace discrimination. And the standard appropriately constrains employersâ€™ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.

If an employer cannot rescore a test based on the candidatesâ€™ race, then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidatesâ€”absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employerâ€™s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VIIâ€™s express protection of bona fide promotional examinations.

The City argues that, even under the strong-basis-in-evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect. Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.

On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidenceâ€”let alone the required strong basis in evidenceâ€”that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employerâ€™s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The Cityâ€™s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.

Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case.

Reversed.

Case Questions

1. Explain what happened on the exam and why the city decided to toss the exam results.
2. What does the court establish as the law applicable to â€œtossingâ€ exam results?
3. What is the court trying to balance in interpreting the law?

Fighting Fire with Stats Ricci v DeStefano 557 U.S. 557 (2009)...