Background: Ricci v. DeStefano was decided by the Supreme Court in June 2009. It received a fair amount of media coverage, so maybe the facts will ring a bell.
Disclaimer: this case required me to summarize a healthy portion of employment discrimination law. For your sake and mine, I elided over some of the parts that weren't relevant. So, if you're an employment law scholar and you're reading this, don't expect it to cover every twist and turn in the Title VII landscape.
FACTS:
Crucial to our understanding of the case, of course, is a firm grip on the facts that led to the legal controversy. (I'm mainly pulling these facts from the majority opinion as found in this textbook. I'm going to omit quotes, citations, etc. to make this more readable. Don't sue me for plagiarism!)
In 2003, 118 New Haven firefighters took written examinations to attempt to qualify for promotion to the rank of lieutenant or captain. These tests made up 60% of each applicant's total score--the other 40% came from an oral examination. The collective bargaining agreement between the city and the firefighters' union set some experience and education requirements as prerequisites for taking the test. (I'm just mentioning that so it's clear that a rookie with great test-taking ability would not have had a chance to get promoted.)
New Haven hired an outside firm, IOS, to develop and administer both the written and oral tests. IOS performed job analyses to identify the tasks, knowledge, skills, and abilities essential for the lieutenant and captain positions. For example, IOS interviewed incumbent captains/lieutenants, rode along with on-duty officers, etc. At every stage, IOS deliberately oversampled minority firefighters to ensure that the results would not unintentionally favor white candidates.
IOS drafted a 100-question multiple choice exam written below a 10th-grade level (presumably so that firefighting attributes, rather than reading comprehension, would be tested). IOS compiled a list of training manuals, procedures, etc. New Haven gave this list to the test-takers three months in advance, so that the candidates would have a chance to study for the exam.
For the oral exam, IOS assembled a pool of 30 assessors, all from outside of Connecticut and all superior in rank to the positions being tested. New Haven gave its approval of each of the assessors. 66% of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. (I know, I know--9 * 3 is 27, not 30. Maybe there were 3 alternates?)
New Haven's city charter imposed a "rule of three"--whoever was promoted had to be among the top three scorers. This means that if there was 1 spot open, the promoted candidate would have to have scored in the top 3. If 10 spots were open, all 10 candidates would have to have been in the top 12 (because the 10th promote was either 10th, 11th, or 12th). So, there's a bit of flexibility but not much.
Candidates took the tests in late 2003. Seventy-seven candidates took the lieutenant test (43 whites, 19 blacks, 15 Hispanics). 34 passed (25 whites, 6 blacks, 3 Hispanics). Eight lieutenant positions were vacant, so under the rule of 3, only the top 10 candidates were eligible for immediate promotion. Everyone in the top 10 was white.
Forty-one candidates took the captain examination (25 whites, 8 blacks, 8 Hispanics). 22 passed (16 whites, 3 blacks, 3 Hispanics). Seven captain positions were vacant, so (under the rule of three) 9 candidates were eligible for immediate promotion: 7 whites and 2 Hispanics.
New Haven got the results, and it's safe to say that it wasn't happy. The New Haven Civil Service Board (CSB) had the task of deciding whether to certify the results. CSB was shown lists displaying the candidates' races and scores, but not their names, at least. Some of the firefighters, without knowing who passed or who failed, spoke at the first CSB meeting in favor of certifying the results. There were some sob stories about how hard they had studied and how much time/money they had devoting to preparing for the tests. One man was even dyslexic and hired his neighbor to read the materials on tape, the poor guy! (I'm not trying to make light of his learning disability; I'm scoffing at how the Court included this in its summary of the facts--doesn't seem germane to the legal issues at play.) Other firefighters spoke against certifying the test results, calling the questions outdated and irrelevant.
The CSB held more meetings and, to its credit, conducted extensive research into the validity/reliability of the test as well as the legal ramifications of certifying. Ultimately, the CSB voted 2 to 2 on the use of the test results, which meant that the results would not be certified. The evidence--at least as a majority of Supreme Court justices saw it--suggests that the tests were fair and that the CSB chose not to certify because of the racial disparity.
Seventeen of the white firefighters and one Hispanic firefighter who passed the tests got together and sued the city of New Haven. Frank Ricci, the named plaintiff, is one of them. (Who's DeStefano, you ask? He's the mayor of New Haven--clearly you don't go to Yale. Don't worry, neither do I.) There was a ton of procedural history (appeals, etc.), but all you need to know is that the case eventually got in front of the Supreme Court.
LAW
Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of race, sex, national origin, etc. Title VII prohibits two major types of discrimination: disparate treatment and disparate impact. To understand Ricci, we're going to have to gain a basic understanding of each of these terms:
Simply put, "disparate treatment" is intentional discrimination on the basis of race or any other protected trait. When you hear "discrimination," you almost certainly picture some type of disparate treatment. For example, if an employer chooses not to promote a black employee (for simplicity's sake, let's call him "Barry") because he's black, the employer is intentionally discriminating on the basis of race. Thus, he's in violation of Title VII. That's easy. Let's make it more complicated...
The employer chooses not to promote Barry, but solely on the basis that the black employee is less qualified than his white coworker (how about "Walker"). This, almost as obviously, is not disparate treatment. Sure, the employer is "discriminating" in one sense in that he's distinguishing two employees, but the employer is not discriminating on the basis of race. That's the key.
Okay, same facts (employer promotes a better-qualified white coworker over a less qualified black coworker), but this time, the employer let race play a role in the decision. The employer thought to himself, "This candidate is black, and I don't want to promote a black person. Also, Barry doesn't have the managerial skills that Walker does," and then proceeded to promote Walker. What now? Well, it turns out that we do indeed have disparate treatment. The law says that if race, etc. plays a "motivating factor" in the employment decision--even if other factors also motivated the decision--this establishes an unlawful employment practice under Title VII. This is where people's opinions start to fracture. Most will agree that Situation 1 should be illegal, and most will agree that Situation 2 should not be illegal. Situation 3 is much tougher, though. On the one hand, Barry was clearly looked at differently than Walker, and isn't one major purpose of law to protect equality? On the other hand, the result would have been the same whether Barry was black or white--even had he been white, he would have missed out on the promotion. So, how can we hold the employer liable when the same result would've occurred regardless of Barry's skin color?
Those first three scenarios covered various ways in which an employer can discriminate (or not) on an individual basis. Of course, system-wide discrimination--referred to as "Systemic Disparate Treatment"--is also unlawful under Title VII in almost* every case. There are two types of systemic disparate treatment: overt (a stated policy of discriminating) and covert (no stated policy but a de facto practice of discriminating), and each type comes with its own procedures. Happily, we needn't concern ourselves with the details of each; the takeaway is that systemic disparate treatment is illegal under Title VII.
Now that we've covered "disparate treatment," we can spend a few seconds on "disparate impact." Disparate impact makes it illegal for an employer to use a facially neutral practice to achieve a discriminatory effect, unless the practice is related to the job and consistent with business necessity. That definition might leave you scratching your head, but an example or two will make it clear:
In the watershed case in this area, the employer administered an intelligence test to all applicants and only hired those who scored above a certain threshold. (Sounds familiar...) Unlike Ricci, however, the applicants in this earlier case were applying for unskilled positions. The test is neutral on its face--it's just as hard for blacks as it is for whites. The test had a discriminatory effect, however--a way bigger percentage of whites passed than did blacks. The Supreme Court held this practice illegal under Title VII, and, even though I'm a free-market guy, I tend to agree. In this first case, it was fairly obvious that the employer was giving its applicants this intelligence test just to weed out the black applicants--before Title VII had passed, the employer had been openly discriminating against blacks--and the test had nothing to do with the job requirements.
Some tests are fine, however--that goes back to the "job-related" and "business necessity" component of our definition. No need to get into the specifics of what will be illegal under Title VII and what won't. For our purposes, we simply need to know that giving a test that's fair in form but discriminatory in effect is illegal, unless the test is job-related for the position in question and consistent with business necessity.
APPLICATION:
So, let's now apply the law we just learned to our facts (if you still remember them after slogging through that boring lecture).
- New Haven chose not to certify the test because of the statistical disparity based on race. This is systemic disparate treatment--systemwide discrimination on the basis of race. To show systemic disparate treatment, the plaintiffs need to show that the defendant (New Haven) had either a race-based classification or a race-based goal. Here, the city's goal of promoting diversity or balancing the composition of the fire department officers is race-based (no matter how benevolent it is), and thus it's disparate treatment. Note that had the Court determined that the city's goal was simply to come up with a better test, the goal would've been neutral and New Haven likely would have prevailed in this case.
- The Court found that by rejecting the test, New Haven was trying to avoid disparate-impact liability. Remember that the test had a disproportionate impact on the races. That put New Haven in danger of violating the "disparate impact" aspect of Title VII. By now, you kinda have to feel for the city--if it certifies the test, it risks a lawsuit from black candidates. If it doesn't certify the test, it risks a lawsuit from those who were in line for the promotions.
At this point, the Court makes a determination of law based on precedent, reason, etc. It holds that before an employer can engage in intentional discrimination for the purpose of avoiding a disparate impact, the employer must have a strong basis in evidence to believe that it will be subject to disparate-impact liability if it fails to take the race conscious, discriminatory action. What does this mean? It means that the defendant (here, New Haven,) has to look at the entire definition of disparate impact and determine whether there's a strong basis in evidence that it faced liability.
Applying this standard to our facts, it's clear (to the Court) that the city would have avoided liability. Admittedly, the black applicants would have been able to bring a case because New Haven did use a test that had a discriminatory result. BUT--the Court found that New Haven would have avoided liability because the tests were job-related and consistent with business necessity. As a result, the Court concluded that there was no strong basis in evidence for the defendant to fear a disparate-impact suit. Thus, for the city to take the discriminatory action of throwing out the test results on the basis of race was held unlawful. The plaintiffs win.
I know that was a lot. If you made it all the way through, thanks very much for reading. Happy holidays.
*I say "almost" because the employer is allowed to have this overt policy of systemic discrimination if the discrimination is based on a "bona fide occupational qualification." If the BFOQ is "reasonably necessary to the normal operation" of the employer's business, he'll be allowed to discriminate. For example, a prison's hiring policy that required prison guards to be of the same sex as inmates was held valid because women guards simply would not have been able to keep the prison safe. This is a very narrow defense, however. For example, an airline's policy of hiring only female flight attendants because "that's what the customers want" was held illegal because it's not necessary to the airline's normal operation to have nothing but female flight attendants. Customer preference is very rarely an appropriate reason for systemic discrimination. One more note: the BFOQ defense is only available for overt systemic disparate treatment. If the employer is covertly discriminating system-wide (ex: a company has no formal policy but never hires women), the BFOQ defense cannot come in.
