The Supreme Court of the United States’ recent decision in Ricci, et al v. DeStefano, et al. while focusing narrowly on the lawfulness of an employment test conducted by the City of New Haven, Connecticut (the “City”), a public sector entity, may have a ripple effect on private employer’s affirmative action plans and curtailing the effectiveness of diversity programs. Is America’s workplace ready for businesses — on their own — to advance diversity without making a minority’s race (or any other protected class under Title VII) a reason for an employment decision? Is America ready to have its crutch of affirmative action removed?
I. Affirmative Action Plans and Diversity Programs
Some minority groups have had a difficult and painful history in the United States such that the government had to come up with some way to level the playing field for those who were previously excluded from opportunities because of their race. The term “affirmative action” was first introduced by President John F. Kennedy in 1961 in an Executive Order as a way of redressing discrimination. With the passage of equal employment opportunities laws, some companies began adopting affirmative action plans. Later, companies began diversity programs to promote a diverse workplace with sometimes similar and overlapping goals as affirmative action plans.
Affirmative action plans were not thought of as a permanent fix to the race problem. It was a hope that affirmative action plans would help transition the United States in promoting, celebrating, and advancing diversity initiatives without the crutch of affirmative action. Thus, many private and public entities have used race as a factor in employment decisions and policies to promote racial diversity in the workplace.
II. Ricci, et al v. DeStefano, et al
In its decision in Ricci, et al v. DeStefano, et al, the Supreme Court took away the employer’s authority to make employment decisions based on race in favor of a minority employee because of the fear of disparate impact liability unless the employer can prove that there is objective and “substantial basis in evidence” of potential disparate impact liability.
Brief Facts
The City implemented a test for its firefighters to determine who were the best candidates for promotions to or advance within the officer ranks. The City took its job serious in the test development and hired a company to develop and administer the exam, specifically Industrial/Organizational Solutions, Inc. (“IOS”). However, despite the rigorous research and development of the test, the results of the test showed that generally the white candidates had “outperformed” minority candidates. Disturbed by the test results and the seemingly striking racial disparity, the City began the process of determining whether the test results should be thrown out. The City also sought the advice of its counsel who advised the City of Title VII’s disparate impact analysis.
The City did the following to determine what it should do, including:
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The City had a meeting with IOS where IOS defended the exam’s validity.
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The City’s counsel sent a letter to the City’s Civil Service Board (“CSB”) outlining its duties regarding the examination results, including raising the disparate impact analysis.
- The CSB had a few public meetings in which experts and witnesses were allowed to testify, including some of the firefighters who took the test (even though they did not know the results of the test).
- During the CSB meetings, IOS described the procedure of the exam test development and administration.
Based upon witness and expert testimony, and other factors, the CSB voted not to certify the results. As a result, 17 white firefighters and 1 Hispanic firefighter brought this lawsuit for disparate treatment under Title VII and violation of the Equal Protection clause of the United States Constitution.
Legal Definitions
Under Title VII of the Civil Rights Act of 1964, an employer may be held liable for race discrimination if it engages in disparate treatment or its practices cause disparate impact to protected class members.
Disparate-treatment occurs in situations “where an employer” treats its employee or applicant “less favorably than others” because of the employee or applicant’s “protected” class.
The Supreme Court set forth “disparate impact” as follows:
Under the disparate-impact statute, a plaintiff establishes a prima face violation by showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin.” 42 U.S.C. §2000e-2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is ‘job related for the position in question and consistent with business necessity.” Ibid. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e-2(k)(1)(A)(ii) and (C).
The Court’s Decision
The Court conceded the City was in a tough position as it balanced arguments for and against certifying the test results with the fear of lawsuits no matter which path the City chose. Yet, the Court found that “its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.”
In wanting America’s workplace free of discrimination, the Supreme Court established an evidentiary objective standard of “strong basis in evidence”. A fear of litigation cannot just incite an employer to discard test results. The Court stated that before canceling a test to have a better racial balance, there has to be a strong basis in evidence that “the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision.”
The Court also found that,
Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. See §2000e-2(h) (“[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race”); cf. AT&T Corp. v. Hulteen, 556 U.S. __, __ (2009) (slip op., at 8).
What Can an Employer Do or Not Do?
While it is true the Ricci decision is based on common sense—you cannot discriminate because of race. Race-conscious policies and practices, and affirmative action of the recent past have prompted companies to be proactive in building diversity in its workforce to remedy the discrimination of the past. Ricci leaves human resource staff scratching their heads trying to figure out if decisions cannot be made in favor of historically disadvantaged minorities generally, and the extent and breadth the Ricci decision will have on other employment-related decisions and policies.
The Court did not provide guidelines to instruct employers on how it should figure out what qualifies as “strong basis in evidence.” The Court correctly thought the racial statistics were not enough to show disparate impact. However, the evidence was apparently insufficient even after the City made its decision of not certifying the tests based upon extensive hearings, witness and expert testimony, arguments against certifying the tests, questions about the test’s validity; and the possibility of an alternative to the test. The impact of the Ricci decision on affirmative action remains to be seen. Some argue that the civil rights violations of America’s past are still recent. If you have questions as to whether your company’s employment decisions, test, policies and procedures place your company in the same position as the City of New Haven, please seek the advice of an employment lawyer to carefully guide your company through the process in determining whether there is “substantial basis of evidence.”
