In Ricci v. DeStefano,i the United States Supreme Court reviewed the refusal of the City of New Haven Connecticut to certify promotional exams for the rank of lieutenant and captain within their fire department.  The basis for the City’s refusal was based on the fact that the exam had a disproportionate adverse impact on African-American firefighters who had taken the exam.  Fearful of a lawsuit by the African-American firefighters based upon discrimination, the City refused to certify the exam thereby refusing to promote white and Hispanic firefighters who had successfully completed the exam.  The white and Hispanic firefighters sued the City of New Haven alleging Title VII discrimination by the refusal to certify the exam.

Lawsuits under Title VII related to discrimination in promotional processes follow a specific analysis.  Under this analysis there is a shifting of burdens that takes place as the lawsuit proceeds.

Burden 1: Employee must show:

Disparate treatment: intentional acts of employment discrimination based on race, color, religion, sex, and national origin.


Disparate Impact: Policies and practices that, while not intended to discriminate but in fact have a disproportionately adverse effect on minorities.

Burden 2: Employer may defend:

Once a plaintiff has made out a prima facie case of disparate impact-employer may defend the policy or practice by a showing that the policy or practice is job related for the position in question and consistent with a business necessity.

Burden 3:

Plaintiff can still prevail if they can show that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employers’ legitimate needs.

In applying this analysis to the facts of this particular exam, the Court asserted:

“Our analysis begins with this premise: The City’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 race — 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 ‘too many whites and not enough minorities would be promoted were the lists to be certified.’  (Respondents’ ‘own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results’). Without some other justification, this express, race-based decision making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.”

The Court citing to Title VII’s provisions went on to note:

“If an employer cannot rescore a test based on the candidates’ race, § 2000e-2(l), 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 candidates — 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 employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.”

“[O]nce that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, § 2000e-2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.”

In deciding against the City of New Haven the Court held: “Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.

In balancing the evidence in this particular case the Court stated: “The racial adverse impact here was significant, and [the white and Hispanic firefighters] do not dispute that the City was faced with a prima facie case of disparate-impact liability. On the captain exam, the pass rate for white candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates. On the lieutenant exam, the pass rate for white candidates was 58.1 percent; for black candidates, 31.6 percent; and for Hispanic candidates, 20 percent. The pass rates of minorities, which were approximately one-half the pass rates for white candidates, fall well below the 80-percent standard set by the EEOC to implement the disparate-impact provision of Title VII. Based on how the passing candidates ranked and an application of the “rule of three,” certifying the examinations would have meant that the City could not have considered black candidates for any of the then-vacant lieutenant or captain positions.

Based on the degree of adverse impact reflected in the results, [the City was] compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact. The problem for [the City] is that a prima facie case of disparate-impact liability — essentially, a threshold showing of a significant statistical disparity and nothing more — is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.  That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.” [cites omitted]

Finally, the Court rejected the City’s arguments that the test was not job related. In doing so the Court relied heavily on the record and noted that some questions had been previously challenged and validated.


i Ricci v. DeStefano, 2009 U.S. LEXIS 4945; slip op. 07-1428/08-328 (June 29, 2009).

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