Supreme Court Holds in Favor of White and Hispanic Firefighters

Supreme Court Holds in Favor of White and Hispanic Firefighters
by John Bolesta

On June 29, 2009, the final day of the Supreme Court’s October 2008 Term, the Court ruled in favor of white and Hispanic firefighters who challenged the City of New Haven, Connecticut’s decision to not certify a promotional examination. See Ricci, et al. v. DeStefano, et al., 557 U.S. ___ (2009). In a 5-4 opinion, Justice Anthony M. Kennedy said an employer's fear of litigation by racial minorities cannot justify intentional race discrimination against white employees absent a “strong basis in evidence” for believing racial minorities could prevail on a “disparate impact” claim.

The case was brought by 17 white firefighters and 1 Hispanic firefighter who undertook to fill vacant lieutenant and captain positions in the New Haven Fire Department.

The City’s contract with the New Haven firefighter’s’ union specifies that applicants for these positions were to be screened using written and oral examinations, after which the City’s Civil Service Board (“CSB”) certifies a ranked list of applicants who passed the test. The City spent $100,000 to hire Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the examinations. To ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates, IOS oversampled minority firefighters, and the test was written below a 10th grade reading level. Due to the limited number of open lieutenant positions, only 10 of the 34 candidates who passed the test -- all of whom were white -- were eligible for immediate promotion. Of the 41 candidates who completed the captain examination, 9 of the 22 candidates who passed the test were eligible for promotion-7 whites and 2 Hispanics.

Although 19 black candidates passed the lieutenant examination (making 3 eligible for subsequent promotions) and 3 black candidates passed the captain examination, City officials expressed concern that the tests had discriminated against minority candidates. Following several meetings of the CSB to determine whether to certify the test results, the CSB voted on a motion to certify the examinations. With one member recused, the CSB deadlocked at 2 to 2, resulting in a decision not to certify the test results. That decision led to a lawsuit filed by several of the firefighters who passed the examinations but were denied a chance at promotions when the New Haven Civil Service Board refused to certify the test results. The plaintiffs alleged that when the CSB refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII’s disparate-treatment provision. Moreover, the plaintiffs also argued that the act of discarding the test by the City discriminated against the plaintiffs on the basis of their race and therefore violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The City countered that its decision was permissible because the tests “appear[ed] to violate Title VII’s disparate impact provisions.” In essence, the City argued that had it not discarded the test results it likely would have faced a Title VII lawsuit from the minorities who took the test but either did not pass or did not finish high enough on the list to make them eligible for promotion. The District Court granted summary judgment for the defendants, and the Second Circuit Court of Appeals affirmed that decision.

On writ of certiorari to the United States Court of Appeals for the Second Circuit, the Supreme Court considered whether a desire to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Writing for the majority, Justice Kennedy (joined by Roberts, C.J., and Scalia, Thomas, and Alito, JJ.) reversed the decisions of the Court of Appeals for the Second Circuit and the District Court on the basis of plaintiffs’ Title VII claims. Stating that the City “turned a blind eye to evidence that supported the exams’ validity,” Justice Kennedy attacked the basis upon which the City could reasonably argue that the exams were not job-related or consistent with business necessity. Addressing the City’s proffered reasons for discarding the test, Justice Kennedy wrote that “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.”

Although joining the majority opinion, Justices Scalia and Alito wrote separate concurrences to illustrate several problems with the current state of the law and to further highlight the record in the case. First, Justice Scalia focused on a singular issue that has, to this point, been avoided by the Court. Namely, “[w]hether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” Arguing that the disparate-impact provisions of Title VII are discriminatory, Justice Scalia posited that “[i]t is one thing to free plaintiffs from proving an employer’s illicit intent, but quite another to preclude the employer from proving that its motives were pure and its actions reasonable.” Justice Alito, on the other hand, focused exclusively on the City’s asserted reason for scrapping its test – concern about disparate-impact liability. Arguing that the City’s proffered concern was merely a pretext, Justice Alito wrote that “the City’s real reason was illegitimate, namely, the desire to placate a politically important racial constituency.” Citing the actions by Reverend Boise Kimber, an influential leader of the New Haven African American community and long-time political ally of the seven-term Mayor of New Haven, Justice Alito pointed to evidence in the record that demonstrated that through the exertion of extreme political pressure on the CSB, Rev. Kimber all but forced the Mayor to make “up his mind to oppose certification of the test results.” It was through the Mayor’s office and Kimber’s relentless pressure that the CSB declined to certify the results of the test, according to Justice Alito.

In dissent, Justice Ginsburg, joined by Justices Stevens, Souter, and Breyer, countered that while the “white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy”, they nevertheless had “no vested right to promotion…[n]or have other persons received promotions in preference to them.” Citing racial disparities in the passage rate of the test at issue (the passage rate for African American candidates was roughly half of that of Caucasian candidates), Justice Ginsberg argues that “the record solidly establishes that the City had good cause to fear disparate-impact liability. Moreover, the Court supplies no tenable explanation why the evidence of the tests’ multiple deficiencies does not create at least a triable issue under a strong-basis-in-evidence standard.”

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Supreme Court Holds in Favor of White and Hispanic Firefightersby John Bolesta

Supreme Court Holds in Favor of White and Hispanic Firefighters
by John Bolesta