High Court Tosses City's Move to Invalidate Promotion Exam

June 29, 2009 (PLANSPONSOR.com) - In a case that could impact employment practices around the country, a divided U.S. Supreme Court on Monday declared that the city of New Haven, Connecticut, was wrong to scrap a firefighters promotion exam for fear of a discrimination suit.

The high court’s five to four decision in Ricci et al versus Destefano et al  reversed a 2 nd U.S. Circuit Court of Appeals ruling in favor of the city. The 2 nd Circuit holding backed a lower court judge who also handed down a decision in the city government’s favor (see High Court to Consider Racial Disparity in City’s Promotion Test ).

New Haven officials ultimately threw out the test results – on which no African-Americans and only two Hispanic firefighters scored high enough to be named lieutenants or captains – and said it feared a “disparate impact” suit over allegations it treated different classes of employees differently.

However, declared Justice Anthony Kennedy who wrote the majority opinion for the court: “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.” Joining Kennedy were Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

“We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute,” Kennedy wrote. “The respondents, we further determine, cannot meet that threshold standard.”

In fact, once an employer has announced an eligibility exam, “…and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race,” Kennedy continued. “Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e – 2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.”

The Dissent

In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.” Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in court Monday.

class=”CM12″> According to the ruling, 118 New Haven firefighters took the 2003 exams examinations to qualify for promotion to lieutenant or captain. With white candidates outperforming minority employees, the city started a public debate “that turned rancorous,” according to Kennedy.   Siding with those protesting the results, the city threw out the exam results.

The Supreme Court ruling is available here .