U.S. Supreme Court Issues Much Anticipated Decision in Reverse Discrimination Case

On June 29, 2009, the United States Supreme Court issued its highly anticipated decision in Ricci v. DeStefano (the firefighter case). In Ricci, white and Hispanic firefighters sued the city of New Haven, Connecticut, arguing that the city discriminated against them in violation of Title VII when it threw out the results of civil service examinations after realizing that black applicants scored disproportionately lower than them. The Supreme Court held in favor of the white and Hispanic firefighters by a slim 5-4 margin.

Title VII prohibits not only intentional discrimination, but also discrimination resulting from employment policies and practices that are fair in form but "disparately impact" protected classes of applicants or employees. New Haven argued that it should not have been held liable for discrimination because the significant disparity in the test results placed it between a rock and a hard place. Specifically, if it certified the test results, it feared black applicants would sue it for unlawful discrimination using the disparate impact theory. On the other hand, if it threw out the test scores, it faced a "reverse discrimination" lawsuit.

The Supreme Court rejected New Haven's argument, holding that "fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." Rather, New Haven's consideration of race in throwing out the exam results would have been proper only if New Haven could show that it had a "strong basis in evidence" for believing that the black applicants' disparate impact claim could have prevailed. The Supreme Court reasoned that a disparate impact claim could not have prevailed in this case because the examinations were sufficiently job-related and based upon business necessity, and, further, there were no equally valid, less discriminatory testing alternatives available to the city.

This case is certain to have a far-reaching impact on disparate impact analysis. Employers should consider having counsel analyze the full meaning of this case in their specific contexts and its impact on their hiring, promotion, selection (for RIF's and otherwise) and other employment practices.