By R. Joseph Leibovich
Shuttleworth Williams, PLLC
(901) 328-8269
jleibovich@shuttleworthwilliams.com

The United States Supreme Court has put employers in spot where they may not be able to tell which way to go if they want to avoid Title VII litigation.

I. The Case

On June 29, 2009, in Ricci v. DeStefano, the Court reversed a decision from the Second Circuit (which, interestingly, Supreme Court nominee Sonia Sotomayor heard as part of a panel).

At issue in Ricci were tests administered by the city of New Haven, Connecticut, to determine which members of the fire department are eligible for lieutenant and captains positions. In 2003, 118 New Haven firefighters took the qualifying examinations. The passage rate for White applicants was significantly higher than it was for Black and Hispanic applicants.

Following heated discussions, the city threw out the tests for fear of facing a disparate-impact race discrimination claim. Some of the White applicants who passed the test sued, and the district court granted the city summary judgment. The Second Circuit affirmed.

The Supreme Court, however, took a different view.

Initially, Title VII of the Civil Rights Act of 1964 did not contain a “disparate-impact” cause of action. That is, it only addressed intentional discrimination based on race, among other factors. However, the United States Supreme Court in cases such as Griggs v. Duke Power Co., 401 U.S. 424 (1972) and Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975) recognized a cause of action for disparate-impact claims, in which a facially neutral practice is discriminatory in effect. Employers could defend such practices by showing that the practice is job-related. In such cases a plaintiff would then have to show legitimate alternatives to the practice that had less of a discriminatory impact.

As part of the Civil Rights Act of 1991, Congress codified these concepts.

In the Ricci case, the city of New Haven faced a real dilemma. There was no question that test did have a disparate impact on minority candidates. This ultimately led the city to decide to throw out the test results. However, in doing this, the City actively discriminated against White applicants who had successfully taken an objective test. So, the City appeared to be in a position of avoiding either intentional discrimination against the White employees, or of avoiding unintentional discrimination of the minority candidates.

The United States Supreme Court held that the City’s decision violated Title VII.

The Court noted that there is an apparent conflict in Title VII’s intentional discrimination and disparate-impact provisions. And, the Court set out to try and provide guidance in how to deal with such conflicts. The Court adopted a “strong-basis-in-evidence” standard. Under this standard, an employer can only make race-based decisions in cases where “there is a strong basis in evidence of disparate-impact liability, buit it is not so restrictive that it allows employers to act only when there is a provable, actual violation.”

In Ricci, the Court determined the City did not have a strong-basis-in-evidence to believe that it would face liability under a disparate-impact claim. The Court acknowledged that there was a prima facie claim of disparate-impact based on the passing percentage of minority applicants. However, the Court concluded that although a prima facie case could have existed, the City could not show a strong basis to show it would have ultimately been liable for such claims as it appears that the tests likely would have been deemed to be consistent with job necessity, and it appears that there likely were not less-discriminatory methods than the tests that would have served the City’s needs.

Therefore, the Court held the White firefighters were entitled to summary judgment on their Title VII claim for intentional discrimination. Based on this, the Court decided it need not address the issue of whether or not the City’s actions violated the Equal Protection Clause of the U.S. Constitution. And, interestingly, the Court noted that it specifically did not hold that the very standard it announced would satisfy the Equal Protection Clause. This remains a very open issue.

II. What Does This Mean To Employers?

Ricci may well put employers in a quandry. Employers who utilize objective test or application standards that have a disparate-impact on minority applicants now can not simply err on the side of caution and boot the results of those standards. An employer that finds itself in this position must now go through a legal analysis and, essentially, determine how it would fight and either win or lose a disparate-impact claim before deciding if it can ignore the results of the facially neutral standards. But, either way an employer decides in these cases, there is a real risk of litigation.

Of course, the best plan of action is to try to make standards as “bullet proof” as possible. Make sure employment or promotion testing or standards are absolutely necessary for the position. Analyze whether or not such standards are likely to have a disparate-impact, and, if so, determine whether or not there are other ways to reach the same goals that likely have less of a potentially discriminatory impact.

This is, admittedly, easy to say on paper. Sometimes it is impossible to know for sure what may or may not have a disparate-impact that favors one protected group over another. So, when the spectre of disparate-impact discrimination appears after standards have been applied, employers need to take a step back and really balance out the potential dangers of a disparate-impact claim on one hand and an intentional discrimination claim on the other. If the employer does not have a strong basis – based on the facts of the case – that it would lose a disparate-impact claim, then that employer would be facing real danger in erring on the side of avoiding the disparate-impact liability and in taking action that amounts to intentional discrimination against the protected group that was not adversely affected by the standards in question.

Unfortunately, Ricci will likely lead to employer confusion and make it difficult to decide which way to move. This is one of those situations where an employer simply has to make an educated guess as to which path is less dangerous. And, of course, that provides employers little comfort. It puts employers in the position of essentially having to figure out how they would fare in a non-existent lawsuit before deciding which way to lean in a conflict inherent in Title VII. But, being able to legally analyze these issues should at least help employers head in the right direction, which is why this is an area where consultation with an attorney prior to making a decision could be invaluable.

The articles published in this blog are for informational purposes only, and are not intended to be legal advice or a solicitation for legal services. For specific legal questions and issues, you should contact an attorney of your choice.