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U.S. Supreme Court Rules In Reverse Discrimination Case Involving Promotional Tests

Volume 8, Issue 10
June 30, 2009

Yesterday, the United States Supreme Court, in a sharply divided 5-4 opinion, ruled that a municipal employer could not refuse to certify promotional test results for a group of white and Hispanic firefighters merely because the employer was concerned that it might face a lawsuit by those who did not perform as well on the test. The decision, Ricci, et al. v. DeStefano, et al., No. 07-1428, has been one of the most closely-watched cases of the Court's current term, in large part because the lower court opinion being challenged involved current Supreme Court nominee Judge Sonia Sotomayor. The City of New Haven, Connecticut used promotional examinations to determine those firefighters best qualified for promotion to the ranks of Lieutenant and Captain. In 2003, a group of 118 racially-diverse firefighters took the exam. The test results, however, would have foreclosed any African-American firefighters from promotion, and instead would have promoted mostly white and only 2 Hispanic firefighters. Concerned by the public outcry that the tests had disproportionately affected African-American candidates - as well as the fact that a disparate impact claim under Title VII may be filed - the City opted not to certify the test results. This action resulted in no promotions being made. The predominately white (and 1 Hispanic) firefighters who would have been promoted if the test results had been certified filed a lawsuit under Title VII, claiming "reverse" discrimination in that they were denied promotions on the basis of their race - i.e., white. The case was dismissed by the trial court, and an appeal was taken to the Second Circuit Court of Appeals. The Second Circuit Court agreed with the trial court, in a single-paragraph decision which included Judge Sotomayor. The firefighters then sought review by the U.S. Supreme Court. In its decision yesterday, the Supreme Court attempted to harmonize Title VII disparate treatment claims (based on intentional discriminatory acts) with disparate impact claims, which seek to challenge facially-neutral policies or practices that have a disproportionately adverse effect on minorities or other protected classes. In so doing, the Supreme Court was called upon to reconcile whether the City's disparate treatment of the white firefighters could be justified by its fear of a potential disparate impact lawsuit brought by the African-American firefighters. Ultimately, the Supreme Court ruled in favor of the white firefighters, stating that once an employer uses tests which are job-related and consistent with business necessity, the employer is "not entitled to disregard the tests based solely on the racial disparity in the results." In responding to the City's stated concern about a potential disparate impact lawsuit, the Court stated that fear of litigation alone cannot justify the use of race to deny promotions to the higher-scoring employees. Instead, the Court held that such affirmative action was only permissible in the most narrow of circumstances where an employer had a "strong basis in evidence" that such action is needed to remedy past racial discrimination. This latest ruling, therefore, serves to further restrict those circumstances where employment decisions based on affirmative action are proper. To view the Supreme Court's opinion, please click here: http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf.

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