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Key Supreme Court Ruling in Employment Testing Discrimination Suit

On June 29, 2009, the Supreme Court narrowly ruled in favor of white firefighters in New Haven, Conn., who said they were denied promotions because of their race, reversing a decision by the Second Circuit.

In Ricci v. DeStefano, the city had thrown out the results of a promotion test because no African Americans and only two Hispanics would have qualified for promotions to Lieutenant or Captain.   The city threw out the results because it feared a lawsuit from minorities under federal laws that said such “disparate impacts” on test results could be used to show discrimination.  As a result, the real decision dealt with whether a decision to avoid potential discrimination against one group amounted to actual discrimination against another.

Justice Kennedy stated in a narrow 5 to 4 decision 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.”  As usual, Justice Ruth Bader Ginsburg wrote a dissent for the more liberal Justices stating that the decision undermines Title VII of the Civil Rights Act.  She read her dissent from the bench for emphasis. “Congress endeavored to promote equal opportunity in fact, and not simply in form . . . The damage today’s decision does to that objective is untold.”

In this case, the Supreme Court overturned Judge Sonia Sotomayor’s holding that the city should be permitted to throw out the test results based upon the ethnic makeup of the participants that successfully passed the test.  Judge Sotomayor was among a three-judge panel that issued a brief summary decision that held that although it was “not unsympathetic” to the plight of the white firefighters, it unanimously affirmed the lower court’s decision for “reasons stated in the thorough, thoughtful, and well-reasoned opinion.”

In Kennedy’s majority decision, he found that the standard for whether an employer may discard a test is whether there is a strong reason to the employer to believe that the test is flawed in a way that discriminates against minorities, not just by looking at the results.  The Court found that “there is no evidence — let alone the required strong basis in evidence — that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city.”   In this case, the Supreme Court reached the right result in this case because there was no evidence the test was flawed, just that the results may lead to an inference that the test may be flawed.

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