Case Questions:

1.Do you agree with the court's ruling?

2. Can you think of a solution, other than the exam, for determining qualified candidates?

3. If it is true that certain protected classes score lower than others, should an adjustment be made to guarantee their selection?

SYLLABUS OCTOBER TERM, 2008 RICCI V. DESTEFANO SUPREME COURT OF THE UNITED STATES

RICCI et al. v. DeSTEFANO et al.

certiorari to the united states court of appeals for the second circuit

No. 071428.Argued April 22, 2009Decided June 29, 2009

New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test resultsand threats of a lawsuit either waythe City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed but were denied a chance at promotions by the Citys refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.

Held: The Citys action in discarding the tests violated Title VII. Pp. 1634.

(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. 2000e2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, 2000e2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is job related for the position in question and consistent with business necessity. Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employers legitimate needs. 2000e2(k)(1)(A)(ii) and (C). Pp. 1719.

(b) 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. The Courts analysis begins with the premise that the Citys actions would violate Title VIIs disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendments Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discriminationactions that are themselves based on raceare constitutional only where there is a strong basis in evidence that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that [e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees. Ibid. The same interests are at work in the interplay between Title VIIs disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see 2000e2(l), and the section that expressly protects bona fide promotional, see 2000e2(h). Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VIIs disparate-treatment and disparate-impact provisions. Pp. 1926.

(c) The Citys race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 2634.

(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie caseessentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing moreis far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the Citys needs but that the City refused to adopt. 2000e2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Pp. 2628.