Racial Discrimination in Ricci v. DeStefano

Comments by attorneys for Frank Ricci and New Haven firefighters after arguments before the Supreme Court. C-SPAN screen capture.

L1: In 2013, the City of New Haven had 15 vacancies to fill in its fire department: 8 for lieutenants and 7 for captains. Per the city’s agreement with the firefighter’s union, spots were to be filled based on merit. To that end, the City administered an oral exam worth 40% of a candidate’s overall score and a written test to make up the other 60%. 110 firefighters took the test.

The written test was designed by IOS, a company with which the City contracted. IOS spent considerable time reviewing the job requirements and competencies of the various positions before writing the 100 question exam. The materials from which the questions were taken were available to the candidates for $500, who had 3 months to study.

The City’s policy followed the “rule of three” for promotions, requiring that one of the top three scoring candidates was to be chosen to fill each spot. This meant that the 8 lieutenants spots would be filled by the top ten highest scoring candidates- all of whom were white. For the 7 captain positions, 9 of the top 10 candidates for those spots would be automatically eligible. The top 9 included 7 whites and 2 Hispanics.

The City feared they would face a lawsuit for discrimination based on the disparate impact of the testing. After meetings, discussions, and consultation with experts, the City declined to certify results, meaning no one was promoted. As a result, 18 firefighters- 17 white and one Hispanic- filed suit against the City and Mayor John DeStafano, and others alleging racial discrimination in violation of right of equal protection under Section 1983 and the disparate treatment prohibition of Title VII. They claimed that refusal of the City to certify the test deprived them of the opportunity for promotion on the basis of race. The City argued that, had they certified the test, they would have been liable under Title VII for violating the disparate impact clause.

Each side filed a motion for summary judgment in district court. The court found in favor of the city, dismissing the lawsuit. The Second Circuit affirmed. The plaintiffs took their challenge to the Supreme Court, which granted cert in Ricci v. DeStefano, our case of the week.

Justice Kennedy delivered the majority opinion. The Court first considered the statutory disparate treatment claim, in keeping with the Court’s general practice of avoiding constitutional claims when a statutory claim may resolve the matter. Title VII prohibits both disparate treatment and disparate impact. Prior to 1991, Title VII prohibited only disparate treatment; that is, a plaintiff would have to show that an employer’s actions were motivated by an intent to discriminate in order to prevail. The mere fact that an action had the effect of harming a minority group was not actionable. There were, however, a few cases in which the Court held that practices which were not related to a legitimate business purpose and which “operates to exclude [minorities]” violated the statute. After nearly 30 years, Title VII was amended in 1991 to explicitly prohibit disparate impact as well. After the amendment, an employee could establish their claim by showing that an employer has “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” To rebut this claim an employer must show the complained-of action is related to the performance of the job and necessary for its business. An employee would then have to show there exists an alternative practice that can meet the business need without the disparate impact.

The Court had to determine whether the City’s first duty was to avoid disparate treatment or disparate impact. The Court accepted the premise that the City’s refusal to certify the test results was based on race– too many whites and too few minorities would be promoted by certification. On its face, wrote Kennedy, this action violates Title VII’s prohibition against disparate treatment based on race. Nevertheless, the Court still had to reconcile the City’s catch-22: certify a test they believed left them open to a disparate impact suit, or refuse to certify and face a disparate treatment suit.

The firefighters urged the Court to adopt their position: that an employer may not intentionally discriminate to avoid unintentional discrimination. But the Court was not willing to accept that argument, because both provisions of Title VII are equally enforceable.

On the other hand, the Court was also unpersuaded by the City’s argument that an employer’s good faith attempt to avoid disparate impact was justification for race-based employment decisions, noting the text of the statute allows no such exception to the prohibition against disparate treatment.

The Court cites precedent which held “that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “ ‘strong basis in evidence’ ” that the remedial actions were necessary.” Therefore, to resolve this case, the Court needed to determine whether the test was, in fact, flawed in such a way that it caused the disparate impact. A good faith belief is not enough; the employer must establish the “strong basis in evidence.”

As to the test administered by New Haven, the Court found that the City had not met that burden. The Court found nothing in the factual record to suggest the test was not job related or a business necessity, or that there existed another testing method of equal validity that would have resulted in a less disparate impact. Citing the steps taken by IOS in creating the test, and testimony from others employed to examine the test after the scores were revealed, the Court found no strong basis in evidence that the test was so deficient as to warrant the imposition of a race conscious remedy. Therefore, the Court held that the firefighters were entitled to summary judgement against the City for its refusal to certify the testing results.

Justice Scalia wrote a concurrence to address briefly the issue the majority avoided: whether the City’s actions constituted a 14th Amendment Equal Protection violation. It was his opinion that the conundrum liked that faced by the City will, at some later point, require the Court to reckon with the conflict between race-based remedies and the Equal Protection clause.

Alito also wrote separately, joined by Thomas, to rebut the dissent written by Justice Ginsburg and joined by Justices Breyer, Souter, and Stevens. Ginsburg began by discussing a long history of discrimination among municipal employers, noting that political patronage and nepotism often took the place of merit in hiring and promotion decisions. The institution of testing for hiring and promoting was a step away from the old system toward equal opportunity. However, the record showed that some of the firefighters who argued against certification pointed out some inequities that still lingered; while some of the applicants could not pay the $500 for study materials and others had to wait a month or more to receive them due to backorders, others already had them due to their family and social connections with other members of the department. These advantages largely favored white candidates. Most of the minority firefighters were first-generation.

The dissent also discussed the report of a consultant hired by the City, who opined that the test was flawed as was the City’s 60/40 written/oral testing formula. The consultant noted that other municipalities using different assessment methods tended to have a more diversity in their successful candidates. Justice Ginsburg believed there to be plenty of evidence in the record that certifying the test could lead to a valid claim of disparate impact, and disagreed with the stringent standard applied by the majority:

“…Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.

Alito’s rebuttal took issue with Ginsburg’s conclusion that the evidence supported a claim of disparate impact. Further, he claims that even if she was correct, a reasonable jury could find that the City’s contention that throwing out the test results was intended to rectify adverse impact on racial minorities was nothing more than a pretext. Rather, he thought, a jury might conclude the City’s real motivation was “the desire to placate a politically important racial constituency.” As support for this supposition, Alito discusses some of the infighting which occurred after the results were released. He specifically zeroes in on Boise Kimber, a controversial black pastor and community organizer in New Haven known for threatening “race riots”. Kimber was closely tied to Mayor DeStefano and was outspoken in his advocacy for not certifying the test results. He was named as a defendant along with the City in this suit.

“Taking into account all the evidence in the summary judgment record, a reasonable jury could find the following. Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked—as things turned out, successfully—to persuade the [Civil Service Board] that acceptance of the test results would be illegal and would expose the City to disparate-impact liability.

In the end, the City of New Haven certified the results, and 14 of the top 20 highest scoring test takers were promoted. The City also paid the plaintiffs $2 million plus attorney’s fees, and three years of “service time” to apply toward their pensions.

L2: In other SCOTUS news this week: While some Democrats cheered the Court’s decision not to hear a Republican challenge to Pennsylvania’s high court ruling allowing ballots received after election day to be counted, others noted with alarm that the decision to deny the petition was 4-4 on mostly party lines, with Roberts siding with the liberals, and worry what that might mean if the election ends up before the Court.

L3: Relatedly, the Court will, at that point, have three justices who were personally involved in Bush v Gore in 2000 as part of Bush’s legal team.

L4: In “not really news but ok,” Internet commentators note that Kamala Harris failed the bar exam on her first attempt, while Amy Coney Barrett graduated first in her class in law school. Unrelated: apples are not like oranges.

L5: Speaking of the bar exam, how would you like to have all of your law school classmates informed of your failure in a mass email- by your dean?

L6: A bipartisan bill to help prevent veteran suicides was quietly passed and signed into law last weekend, including the new “9-8-8” mental health emergency phone number. Good to know there is still such a thing as a “bipartisan bill”.

L7: The DoJ, joined by eleven states, is about to hit Google with an antitrust lawsuit. The government alleges Google unfairly squashes competition in its search results.