The New Haven Firefighters’ Case: How this Landmark Case Affects Employers
The Supreme Court’s decision in the New Haven Firefighters’ case, which has become a political issue, is also a decision that could shape the contours of employment testing law. In that case, the Court held that the City of New Haven discriminated against white firemen by discarding the results of a promotion test because the percentage of white firefighters who passed the test was much greater than the percentage of minority firefighters. Ricci v. DeStefano, Nos. 07-1428, 08-3128, 2009 WL 1835138 (June 29, 2009). The Court specifically held that rejecting a test because a disproportionate number of whites passed that test violates the command of Title VII that employment decisions cannot be based on race.
In order to understand the impact of this ruling, one must understand some of the history of Title VII and the types of discrimination that it prohibits. When first passed in 1964, Title VII prohibited what later became known as “disparate treatment” or intentional discrimination, which, for example, occurs when a company terminates an employee because she is black or female. In 1971, the Supreme Court, by unanimous vote in the landmark case of Griggs v. Duke Power Co., 401 U.S. 424 (1971), prohibited a form of unintentional discrimination, in other words, an action which appeared to be fair on its face but was discriminatory in practice. Plaintiff in that case challenged the requirement of Duke Power that all job applicants have a high school diploma. Because that requirement disqualified 80% of the black applicants, the Court held that unintentional or “disparate impact” discrimination had occurred. Where disparate impact is demonstrated, the employer can defend by showing that the challenged practice is “job related and consistent with business necessity.” EEOC subsequently attempted to define the statistical disparity that would constitute disparate impact by adopting an “80% rule,” meaning that disparate impact occurs when one group passes a test at less than 80% of another group’s rate.
There is an inherent tension between the two types of discrimination. For example, if an employment test disproportionably affects men and women, “disparate impact” discrimination may have occurred; but if the company rejects the test results because too many men passed the test, it could be committing an act of “disparate treatment” discrimination against men. This tension lies at the root of the Court’s decision in this case. The Court attempted to resolve it by holding that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action.” (emphasis added).
How the employer will, in practice, meet this “objective, strong basis in evidence” burden is far from clear. In this case, even if the 80% rule were satisfied, the Court held that a statistical disparity without more is not a “strong basis in evidence.” What else could the employer have shown? The Court suggests that it might have met its burden by showing that the test was not job-related and consistent with business necessity. But that is a strange burden to impose because, presumably, the City would not have given the test unless it believed that the test was job-related and consistent with business necessity. To meet that burden, the company would be impeaching itself. The Court then suggested that the City could have prevailed by showing that that there was an “equally valid, less-discriminatory testing alternative” that the City refused to adopt. But that burden is equally problematic. How can the employer be faulted for choosing one test over an “equally valid” alternative? And, once the test results are in, how would the employer know that the alternative test would produce different results? And if it chose a different test because that test produced better results for one particular group, might not the employer face a disparate treatment claim from the other group? One can anticipate a litigation mess developing in the wake of this decision.
Clearly, as a result of this decision, employers who engage in employment testing will now have to take much more care in test selection. Underlying this decision is a real question as to whether this Court will, in some future decision, reject the whole theory of disparate impact discrimination – a theory that the Supreme Court unanimously adopted in Griggs in 1971 – on the ground that it is at root irreconcilable with disparate treatment discrimination and possibly with the 14th amendment to the Constitution (which requires equal protection under law) as well.
