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| Supreme Court Establishes Reverse Discrimination Precedent
June 30, 2009
Employers must be wary of the potential reverse discrimination impact of their employment procedures after the Supreme Court reversed the Second District Court of Appeals' decision regarding the application of the disparate impact doctrine on federal employment discrimination claims. In a 5-4 decision, the Supreme Court sided with a group of Caucasian firefighters by finding that their employer should not have denied them promotions on the basis of race, Ricci v. DeStefano, 557 U.S. _____ (2009).
The Facts
The city of New Haven, Connecticut, contracted with an outside firm to develop a race-neutral employment test for promoting rank and file to captain and lieutenant positions within its fire department. Upon administering the new test, however, it was discovered that the test potentially had a disparate impact on race. Of the nineteen firefighters who scored high enough on the test to merit a promotion, seventeen were white, two were Hispanic and none were black. After receiving these results, the City decided to reject the test results in their entirety, on the basis that the test had a disparate impact on minorities and violated Title VII of the Civil Rights Act of 1964.
The affected white and Hispanic firefighters sued the city for reverse discrimination under Title VII of the Civil Rights Act of 1964 (42 USC § 2000e-2) and initially lost in the District Court on summary judgment and later lost in the Second Circuit Court of Appeals in an unpublished decision. Later, the Second Circuit decided in a per curiam ruling to publish, and therefore make binding precedent, its unpublished opinion. Supreme Court nominee Sonia Sotomayor was involved in the appellate decision.
The Supreme Court reversed the lower court decision, saying that the city should not have punished the firefighters who passed the promotion test. It found that the bare use of race-based criteria without a legitimate fear of disparate impact liability to minority test takers was itself a violation of Title VII. Further, the Court rejected any "good faith" exception for employers who adopt policies with the intent to prevent violation of Title VII, but whose policies actually cause discrimination.
Impact on Employers
This decision will have an especially strong impact on those companies that use objective tests to make employment decisions. These tests are usually carefully crafted to provide equal opportunities to all employees, and are intended to provide non-biased input on making hiring, firing or promoting decisions. The Ricci decision may invalidate employment tests that are perceived to have a reverse discrimination effect, if the employer cannot demonstrate that it has a legitimate interest in weighing the results to counteract a perceived disparate impact.
Prior to Ricci, there was a stronger assumption that an employer's decisions to adjust test results or methods to mitigate disparate impacts on minority applicants would be presumed to be valid and justified under Title VII precedent. Ricci raises a greater possibility of reverse discrimination liability unless an employer can show that a strong likelihood of Title VII liability to minority applicants for disparate impact discrimination exists unless it changes the test procedure. Further, a strong likelihood of Title VII liability cannot be shown by an employer simply by showing the disparate statistical outcome of the test. Rather, the employer must do the full analysis under Section 2000e; this includes not only determining that the testing method has a disparate statistical impact on minority candidates, but also includes that determination that the employer either does not have a legitimate business interest in administering the test in the manner which it does, or that there is no better type of testing method for achieving the employer's testing objective that has less of a disparate impact on minority candidates.
For employers, this creates additional factors to consider when analyzing the efficacy of its own tests and whether they are appropriate and race-neutral. When making hiring, firing or promoting decisions, as always, employers must be sensitive to the discriminatory impact they might have. Often, this can be addressed by keeping written records of why these decisions are made. With the Ricci decision, keeping this paper trail has been further emphasized, with the addition of a few more steps. To the extent that employers who administer tests for merit-based promotions do not track the impact of their testing, the employer should now consider adopting procedures to not only track the impact of such tests, but also documenting any concerns and analysis of whether changes to the testing method are necessary and whether such changes might result in reverse discrimination claims.
It is important to note that while Ricci affects employment practices on a federal level, states vary in the level of protection they offer employees with regard to disparate impact claims, with some states offering greater protection than under Title VII. For example, California, under its Unruh Civil Rights Act and its Fair Employment and Housing Act ("FEHA"), is considered to be more comprehensive than federal law in disparate impact cases. For example, California precedent has held that only the showing of the statistical disparate impact as a result of an employment practice is sufficient to create a presumption of liability under the FEHA and shift the burden of persuasion to the employer to show a valid job-related reason for the practice. (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805.) Because California decisional law on disparate impact expressly tracks federal precedent, however, this less rigorous approach used by California may be found to be violative of Title VII under Ricci, to the extent that California's pre-Ricci interpretation of FEHA is found to allow reverse discrimination.
The attorneys of WFB&M are keeping abreast of the developments in the precedent the Ricci decision sets. For more information or to speak with an attorney on the nuances of this subject, please contact Laurie Sherwood, Sage Knauft or Joshua Dale at the contact information listed below, or any other WFB&M attorney with whom you have an existing relationship.
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Related Practice Areas: Employment Law Practice
Related Attorneys: Laurie Sherwood, Sage Knauft, Joshua Dale
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