Ricci v. DeStefano, a/k/a The New Haven Firefighters’ Case
Since the Court’s 5-4 decision was announced last week, it’s been the subject of a torrent of reporting and analysis, focused as much on its significance for the Supreme Court nomination of Judge Sonia Sotomayor — who was on the Court of Appeals panel the Supreme Court reversed — as for the difficult employment law issues with which it dealt.
So what can I possibly add?
My aim with this series of posts is to:
- Present the complex and controversial facts, issues, and holding of Ricci in a digestible and comprehensible fashion, including key points made in the two concurring and one dissenting opinions — no mean feat given the 93-page length of the decision, including a 34-page majority opinion.
- Point to some interesting commentary on the case.
- Offer my own perspective, including practical implications for employers and their attorneys.
The series will be divided as follows:
- Part I: The basics: the facts and holding of the Ricci case
- Part II: The Ricci case majority opinion’s reasoning explained — what was and was not decided
- Part III: Interesting issues raised by the concurring and dissenting opinions in Ricci
- Part IV: Thoughts on the Ricci decision’s significance — my own and those of others
Ricci Case in a Nutshell
Ricci involved a race discrimination claim brought by white and Hispanic firefighters challenging the City of New Haven’s decision not to use certain test results for purposes of promoting firefighters to Captain and Lieutenant positions.
At the time of this decision by the City, many firefighters competing for the promotions, including the white and Hispanic plaintiffs, had studied for and taken the tests.
The City claimed it made this decision because using the tests would have exposed it to race discrimination liability due to the tests’ racially disproportionate impact on black applicants.
The Supreme Court crafted a new legal standard for this type of Catch-22 situation, in which either decision could arguably have exposed the City to discrimination liability.
Under this standard, the employer can use concerns about possible disparate-impact liability to defend a race-based decision only if it can demonstrate a strong basis in evidence that it would have been liable based on the disparate impact, rather than just a good faith concern about the risk of litigation over this issue or about the possibility of such liability.
Applying this standard, the Supreme Court reversed the summary judgment the district court had granted for the City, which the Court of Appeals had affirmed.
The Supreme Court held that the City had discriminated against the white and Hispanic firefighters and that the concern the City expressed about the disparate impact of the test did not justify the City’s decision.
Genesis of the Disputed New Haven Firefighters’ Exam
The City’s firefighter promotion process was restricted by two elements with which most private employers need not contend:
- A civil service merit system requiring promotion of the most qualified individuals, as determined by job-related examinations, with each vacancy filled by one of the top three scoring applicants.
- A firefighters’ union collective-bargaining agreement specifying further qualifications for promotion and requiring that 60% of the examination score be based on a written test and 40% on an oral test.
Given these requirements, the City contracted with a company that specializes in designing such nominations for fire and police departments — at a cost of $100,000.
This company took the following steps to customize-design an appropriate written and oral examination:
- It conducted job analyses to identify the tasks, knowledge, skills, and abilities essential for the lieutenant and captain positions, using interviews, on-the-job observations, and questionnaires.
- In this process, it deliberately oversampled minority lieutenants and captains in order to avoid any possible bias against minorities.
- It compiled a list of training manuals, department procedures, and other materials to use as sources for test questions.
- It used the source materials to draft a multiple-choice written test for each position.
- It prepared oral examinations, concentrating on job skills and abilities identified by the job analyses and consisting of “hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things.”
- It assembled a pool of oral examiners:
- These were “battalion chiefs, assistant chiefs, and chiefs from departments of similar sizes … throughout the country.”
- 66% were minorities.
- Each three-member oral examination panel contained two minority members.
- Each oral examiner was trained for several hours to ensure consistent scoring.
Racially Disparate Impact of the Exam Results
In 2003, 118 New Haven firefighters took the examinations for promotion to lieutenant or captain.
The test results had a racially adverse impact. It was undisputed that this impact was significant and that it established a prima facie case of disparate-impact liability. The extent of the adverse impact was indicated by the pass rates:
On the captain exam:
- White: 64%
- Both black and Hispanic: 37.5%
On the lieutenant exam:
- White: 58.1%
- Black: 31.6%
- Hispanic: 20%
The minority pass rates fell well below the 80% standard set by the EEOC to implement the disparate-impact provision of Title VII, as they ranged from 34% to 59% of the white pass rates.
The City’s Conumdrum and Its Ill-Fated Decision
Based on the test scores and the “rule of three,” the City could not consider black candidates for any then-vacant lieutenant or captain position.
This led the mayor and other local politicians to “open a public debate that turned rancorous.” Some firefighters argued the tests should be discarded because the results showed them to be discriminatory. They threatened a discrimination lawsuit if the City used the tests.
Other firefighters said the exams were neutral and fair. They threatened a discrimination lawsuit if the City did not use the test.
Finding itself in this “damned if you do, damned if you don’t” conundrum, the City ultimately took the side of those who protested the test results, deciding not to use them. In making this decision, the City took the following steps:
- Under the City’s contract with the company that prepared the tests, the company was to provide a technical report describing the testing process and analyzing its results. Instead of requesting this report, City officials met with the leader of the team that developed and administered the tests, who orally defended their validity.
- Several days later, the City’s attorney stated in a letter to the Civil Service Board (“CSB”) that “a statistical demonstration of disparate impact,” standing alone, “constitutes a sufficiently serious claim of racial discrimination to serve as a predicate for employer-initiated, voluntar[y] remedies–even … race-conscious remedies.” This assertion, of dubious accuracy at best under then-existing federal law, became the issue ultimately decided by the Supreme Court.
- A few weeks later, the CSB met and heard testimony from a number of witnesses, including a Department of Homeland Security fire programs specialist, an industrial/organizational (“I/O”) psychologist, the president of the New Haven firefighters’ union, and some firefighters. The City’s HR Director asked the CSB to discard the test results, citing the I/O psychologist’s statements about the possibility of alternative testing methods with less disparate impact. With one member recused, the CSB deadlocked, so there were insufficient votes to certify the test results.
Allegations of the White and Hispanic New Haven Firefighters’ Lawsuit
Some of the white and Hispanic firefighters who likely would have been promoted based on their test scores sued the City and some of its officials, alleging that by discarding the test results they discriminated against the plaintiffs based on race, in violation of both Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
The City and its officials asserted the defense that use of the test results could have resulted in liability for adopting a practice with a racially disparate impact.
The Rulings Below Went Against the White and Hispanic New Haven Firefighters
The District Court granted summary judgment for the City and its officials, and a Court of Appeals panel affirmed without writing a detailed opinion.
This panel included Judge Sonia Sotomayor, now the President’s nominee to replace retiring Justice David Souter on the Supreme Court, adding further interest to the Ricci case.
In support of its conclusion that the City’s decision not to use the test results was not unlawful under either Title VII or the Equal Protection Clause, the District Court reasoned as follows:
- The argument against the City’s decision was that absent proof that the test-result disparities were caused by a particular flaw inherent in the exams, the City should have used the tests because there was no other alternative in place.
- However, the City was not obliged to use the test results simply because it had not yet formulated a better selection method.
- The “motivation to avoid making promotions based on a test with a racially disparate impact … does not, as a matter of law, constitute discriminatory intent” under Title VII.
- The Equal Protection claim lacked merit because there was no evidence of “discriminatory animus” toward the higher-scoring white and Hispanic firefighters.
The District Court’s bottom line was that the decision not to use the test scores was not “based on race” because “all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.”
The Supreme Court’s Holding: The City Discriminated Against the Higher-Scoring White and Hispanic Candidates
The Supreme Court reversed the decision of the District Court, finding that the City had discriminated against higher scoring candidates. It said:
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.
The [City] … cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause.
More specifically, the Court stated:
[T]here is no evidence–let alone the required strong basis in evidence–that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City.
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.
The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.