June 2009

"The . . . standard [announced by the majority], as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture."
--Justice Ginsburg, writing for the dissent

In the 5-4 decision in Ricci v. DeStefano, a narrow majority of justices on the Supreme Court concluded that the city of New Haven, Conn. violated Title VII of the Civil Rights Act of 1964, when it declined to make promotions in the fire department on the basis of a test that screened out almost all of the minority test-takers. With this decision, the Court has endangered critical equal employment opportunity safeguards that have been in place for decades to encourage employers to utilize tests that are both fair and effective.

Despite the rulings below for the city and fervent arguments on appeal from both civil rights groups and employer groups in defense of the city's actions, most expected the majority to rule along ideological grounds for the Ricci plaintiffs. Nevertheless, the decision offered a number of surprises, particularly in terms of how far the Court was willing to go to rule for these plaintiffs.

Perhaps the most troubling aspect of the decision is the disregard for the fundamental rule of statutory construction to look to the plain language of a statute and the underlying congressional intent. Looking to the plain language of Title VII, Congress clearly intended for employers to ensure that tests are "job related for the position in question and consistent with business necessity" and to adopt "alternative employment practice[s]" that would lessen a disparate impact. This decision contravenes the clear legislative language and intent of Title VII.

Today's ruling in Ricci v. DeStefano should prod New Haven and every other employer-public as well as private-to place a premium on carefully developing practices for hiring and promoting employees. Most municipal employers use a better approach to evaluate job candidates than New Haven did here. According to a 1996 study cited by Justice Ginsburg in her dissent, nearly two-thirds of surveyed municipalities used assessment centers, which provide a simulation of the real-world work experiences. This movement away from written, multiple-choice tests makes sense especially for firefighting jobs. As Justice Ginsburg notes, "‘there is a difference between memorizing . . . fire fighting terminology and being a good fire fighter. If the Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocabulary, the team might acquire [players] who could not bat, pitch, or catch.'" Slip Op. at 28, n. 12 (quoting Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1023 (1st Cir. 1974)).

It is likely that the Justices in the majority would not have objected if New Haven had decided from the outset to follow most other fire departments and use an assessment center to select firefighters for promotion to lieutenant and captain. As Justice Kennedy's majority opinion explains, our nation's core equal employment opportunity law, Title VII of the Civil Rights Act of 1964, "does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals regardless of race." Slip Op. at 25.

What separated the majority and dissenting justices was their conflicting views about what legal standard should apply after an employment practice has been put in place and a municipality takes action to remedy its flaws. The majority's newly created "strong basis in evidence" standard will make it harder-but not impossible-for employers to abandon discriminatory employment practices after they have decided to use them. For this reason, this new standard is contrary to Congress's intent in enacting Title VII and completely neglects the long history of racial exclusion and discrimination especially in fire departments nationwide.