U.S. Supreme Court Rules in Favor of White Firefighters

In a much-anticipated review of a Second Circuit Court of Appeals decision endorsed by Supreme Court nominee Sonia Sotomayor, the Supreme Court has reversed the appellate court's decision, ruling that white firefighters in New Haven, Connecticut, were unfairly denied promotions because of their race.  The case is Ricci v. DiStefano (Supreme Court, June 29, 2009).

The case arose out of New Haven's use of objective examinations to identify those firefighters best qualified for promotion. When the results of examination to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, the City, fearing a lawsuit, threw out the results based on the statistical racial disparity. White and Hispanic firefighters who passed the exams but were denied a chance at promotions sued the City, alleging that discarding the test results discriminated against them based on their race in violation of Title VII of the Civil Rights Act of 1964. The City responded that if they had certified the test results, they could have faced Title VII liability for adopting a  practice having a disparate impact on minority firefighters. The district court granted summary judgment for the defendants, and the Second Circuit Circuit of Appeals affirmed.

The Supreme Court reversed, holding that City’s action in discarding the tests violated Title VII. The court held that under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The court acknowledged that the racial adverse impact from the test results was significant.  However, a threshold showing of a significant statistical disparity, and nothing more, is insufficient to show that the City would have been liable under Title VII had it certified the test results, because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. Based on the record, there was no substantial basis in evidence that the test was deficient in either respect. Fear of litigation alone, the Court held, cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.

The Ricci decision is certain to be a focus of upcoming Senate hearings on Sotomayor's nomination.  For employers, Ricci offers new guidance concerning the circumstances under which an employer can take race-conscious measures to avoid or remedy an unintentional, disparate impact on minority groups.  Under Ricci, the employer must have a "strong basis in evidence" to believe it will be subject to disparate-impact liability if it fails to take the race-conscious action.  This high burden is certain to be the basis for other challenges to employers' affirmative action policies throughout the United States.

U.S. Supreme Court Rules that Retaliation is Barred by 42 U.S.C. Section 1981

The United States Supreme Court ruled today in CBOCS West, Inc. v. Humphries that 42 U.S.C. section 1981, a civil rights statute that gives “[a]ll persons … the same right … to make and enforce contracts … as is enjoyed by white citizens,” encompasses employment-based claims of retaliation as well as discrimination. 

For Florida employers, the Humphries decision is of little consequence because it has long been the law in the 11th Circuit (which covers Florida, Georgia and Alabama) that a plaintiff can assert a retaliation claim under section 1981.  In fact, in its opinion, the Supreme Court cited the 11th Circuit's decision in Andrews v. Lakeshore Rehabilitation Hospital, 140 F. 3d 1405, 1411–1413 (11th Cir.1998), among other appellate court decisions, for the proposition that following the passage of the Civil Rights Act of 1991, "the Federal Courts of Appeals again reached a broad consensus that §1981, as amended, encompasses retaliation claims."