Supreme Court Finds Bias Against White Firefighters

Sheila Foster in New York Times, June 30, 2009

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WASHINGTON - The Supreme Court ruled on Monday that white firefighters in New Haven were subjected to race discrimination when the city threw out a promotional examination on which they had done well and black firefighters poorly.



"The city rejected the test results solely because the higher scoring candidates were white," Justice Anthony M. Kennedy wrote for the majority, adding that the possibility of a lawsuit from minority firefighters was not a lawful justification for the city's action.

"Fear of litigation alone," Justice Kennedy wrote, "cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."

The 5-to-4 ruling, which reversed an appeals court decision joined by Judge Sonia Sotomayor, now a Supreme Court nominee, will have broad impact, lawyers specializing in employment discrimination law said.

"This decision will change the landscape of civil rights law," said Sheila Foster, a law professor at Fordham.

The new standards announced by the court will make it much harder for employers to discard the results of hiring and promotion tests once they are administered, even if they have a disproportionately negative impact on members of a given racial group.

Public employers that use civil service examinations and similar tests will be most directly affected, but the principle announced by the court applies to all employers and all sorts of procedures used to rank and sort potential and current employees.

Justice Ruth Bader Ginsburg, reading a dissenting statement from the bench, said the majority had undermined a crucial civil rights law. "Congress endeavored to promote equal opportunity in fact, and not simply in form," she said. "The damage today's decision does to that objective is untold."

The New Haven case had drawn wide interest, in part because of Judge Sotomayor's role in it.

Supporters of her Supreme Court nomination said Monday's decision changed the law and thus did not reflect negatively on the decision she participated in. Critics asserted that the appeals court's approach had not been fully endorsed by any justice.

Justice Kennedy, writing for himself and the four members of the court's conservative wing, said the case required the court to try to reconcile two aspects of Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in employment.

The "original, foundational" core of Title VII, Justice Kennedy wrote, prohibits intentional discrimination against individuals on the basis of race - "disparate treatment," in the legal jargon. But the law also prohibits some seemingly neutral practices that have a "disparate impact" on members of racial groups.

Many of the plaintiffs in the case - 18 white firefighters, one of them Hispanic - studied intensively for the test, giving up second jobs and missing family celebrations. The lead plaintiff, Frank Ricci, who is dyslexic, said he studied for 8 to 13 hours a day, hiring an acquaintance to tape-record the study materials.

New Haven argued that it had acted in good faith in throwing out the exam results, fearing a disparate-impact suit from minority firefighters.

That was not enough, Justice Kennedy wrote. Indeed, allowing "employers to discard the results of lawful and beneficial promotional exams even when there is little if any evidence of disparate-impact discrimination," he wrote, "would amount to a de facto quota system."

But the majority did not rule out consideration of disparate impact altogether. Employers may consider potential racial impact "during the test-design stage," Justice Kennedy wrote.

And, in "certain, narrow circumstances" after tests are given, he continued, employers may discard the results if they can demonstrate "a strong basis in evidence" that using the results would cause them to lose a disparate-impact suit.

That heightened standard, Justice Kennedy wrote, requires employers to show that the tests were not relevant to the jobs at issue or that other "equally valid and less discriminatory tests were available."

In the case before the court, Ricci v. DeStefano, No. 07-1428, the majority said there was no evidence, let alone strong evidence, of either a problem with the tests or of the availability of better alternatives. The court ruled in favor of the plaintiffs outright rather than returning the case to the lower courts for application of the new "strong basis in evidence" standard.

Because it ruled on statutory grounds, the court did not consider the plaintiffs' separate claim that New Haven had violated the firefighters' rights under the Constitution's equal protection clause.

Justice Kennedy was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

In a concurrence, Justice Scalia predicted that the court would soon have to reach the larger constitutional question. "The war between disparate impact and equal protection will be waged sooner or later," he wrote, "and it behooves us to begin thinking about how - and on what terms - to make peace between them."

Justice Ginsburg, writing for herself and Justices John Paul Stevens, David H. Souter and Stephen G. Breyer, said the majority had underestimated the legitimate fear New Haven had of losing a disparate-impact suit. "Like the chess player who tries to win by sweeping the opponent's pieces off the table," she wrote of the majority opinion, "the court simply shuts from its sight the formidable obstacles New Haven would have faced."

None of the justices were directly critical of the unsigned appeals court decision in which Judge Sotomayor participated. Justice Kennedy did write that the decision, issued "after full briefing and argument by the parties," consisted of a single paragraph adopting the district court's decision.

Justice Alito, in a concurrence for himself and Justices Scalia and Thomas, noted that the federal government had not fully endorsed the appeals court's decision in the supporting brief it filed in the Supreme Court, suggesting instead that the case be returned to the lower courts for more work.

The four dissenters in places seemed to endorse the approach suggested by the federal government; in others, they indicated they would have ruled for New Haven outright.

Justice Ginsburg wrote that there was a long history of race discrimination in firefighting. She added that people good at taking tests were not necessarily the best leaders in public safety emergencies.

In her statement from the bench, Justice Ginsburg said the firefighters who sued "understandably attract the court's empathy." (In her written dissent, she said the plaintiffs "attract this court's sympathy.")

Justice Alito, in his dissent, said that was not enough.

" 'Sympathy' is not what petitioners have a right to demand," Justice Alito wrote. "What they have a right to demand is evenhanded enforcement of the law - of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them."