High Court to Consider Racial Disparity in City's Promotion Test

April 20, 2009 (PLANSPONSOR.com) - The U.S. Supreme Court this week will review a major job bias case asking what employers legally may do when a decision to avoid discrimination against one group of employees may mean discrimination against another group.

The National Law Journal points out that although the case, Ricci v. DeStefano , nos. 07-1428 and 08-328, involves a public employer — the city of New Haven, Connecticut — whatever path the justices take to resolve the interplay of the equal protection clause and Title VII of the Civil Rights Act of 1964 could have significant ramifications as well for private employers and their efforts to maintain diversity in their workplaces.

According to the news report, the challenge stems from 2003 exams administered by the city to determine the promotions of eligible firefighters to the ranks of lieutenant and captain. When the results came back, city officials found the pass rate of black candidates on both exams was about one-half the pass rate of white candidates, and out of 19 possible candidates for promotion to the 15 available positions, no black firefighter scored high enough to qualify.

Because of the severe disparity in the test results, the city’s Civil Service Board held five days of public hearings on whether to certify any list of eligible candidates, which resulted in a split vote that left the results uncertified. No promotions went forward, and shortly afterward, a group of high-scoring firefighters sued the city.

The question before the Supreme Court, by Frank Ricci and other firefighters among the top test-scorers, is whether, as they believe, the city’s refusal to certify the results discriminated against them on the basis of race in violation of the 14th Amendment’s equal protection clause and Title VII’s prohibition on disparate treatment discrimination. The city argues that to have gone forward with the test results would have put it in violation of Title VII’s ban on disparate impact discrimination and in jeopardy of a lawsuit by black firefighters.

Ilya Shapiro of the libertarian Cato Institute, who filed an friend of the court brief supporting Ricci, contended that if the test is race-neutral “and there is no specific race-based animus to any of the actions here, then whatever the result is, it’s fine and you go with that,” according to the Law Journal. He argued that: “If the test yields a disparity among racial groups, the problem isn’t with the employer but with why aren’t there qualified applicants? It might be an issue of education or something else. Whatever it is, it’s not a legal issue related to the employers’ hiring and promotion practices.”

On the other hand, John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., in a friend of the court brief supporting the city, said: “In 2003, New Haven had cause to question the reliability of the test when none of the 27 African-American firefighters who took the test would have been promoted. I’m open to there being a test, but when you get these results, New Haven, as a responsible body, ought to be able to go back and rethink the test. New Haven should not have to worry when it acts responsibly in the face of clear signs of a problem, that it will be sued.”

Karen Lee Torre of New Haven's Law Offices of Norman A. Pattis, who is representing Ricci in the case before the U.S. Supreme Court, argues that the city of New Haven took steps to ensure that the exam questions were job related and that the promotion process overall was race neutral. She is seeking reversal of a summary judgment by a federal district court.

According to the National Law Journal, Torre contends that the city's refusal to promote Ricci and his colleagues was a "race-based government action grounded solely on the racial distribution of the test results." Because it was a race-based action, the justices must apply strict scrutiny, which requires the city to prove it had a compelling government interest in taking that action and the action was narrowly tailored to achieve its goal.

Torre argued the city's fear of a Title VII disparate-impact suit "cannot supply the requisite compelling interest, particularly when [the city] had no reason to think that the test inflicted any impermissible discrimination."

Attorney Christopher J. Meade, who is representing the city, says the "case does not involve racial classifications but rather race-neutral action — the noncertification applied to all candidates of all races." Meade added that the city's action survives review because compliance with Title VII's disparate impact provisions is a compelling interest, and the city had evidence to conclude that using the test results would violate Title VII.

Attorneys commenting on the case told the National Law Journal that the arguments in the case pit the disparate impact section of Title VII against the discrimination section, and make it seem employers cannot win no matter what they do.

But Cato's Shapiro said, "The guidance that the court needs to set out is: If there are not any allegations of racial animus or pretext in the testing criteria applied, then there should not be a basis for a suit."