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USSC Seemingly Divided on Reverse Discrimination in Promotion Testing

The Supreme Court recently heard oral arguments in the case of Ricci v. DeStefano, and appeared divided over whether a Connecticut city’s decision to abandon a firefighter promotion exam because too few minorities passed violates the civil rights of top-scoring white applicants. The discrimination lawsuit brought by 20 white firefighters – one also is Hispanic – challenges New Haven’s decision to throw out promotion exams for lieutenants and captains in its fire department.

The Court’s more conservative justices seemed inclined to side with the white firefighters. While the more liberal justices indicated that the employer did nothing wrong by throwing out the test over concerns that it had a disparate impact on minorities in violation of the 1964 Civil Rights Act.  During the deliberations, Justice Souter noted that a ruling against the city could leave employers in a “damned-if-you-do, damned-if-you-don’t situation.” Souter’s comment reflected the concern of business interests who said in a court filing that a decision in favor of the white firefighters would place employers in an untenable position of having to choose whether to face lawsuits from disgruntled white or minority workers. Summarizing the employer’s argument that if it had gone ahead with the promotions based on the test results, it would have risked a lawsuit claiming that the exams had a disparate impact on minorities in violation of the 1964 Civil Rights Act. The federal appeals court in New York upheld a lower court ruling dismissing the lawsuit.

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