JURIST Guest Analyst
Sheila R. Foster is the Albert A. Walsh Professor and Associate Dean for Academic Affairs at Fordham Law School in New York City, where she teaches and writes on issues relating to anti-discrimination law and environmental justice. She is also Co-Director of the Stein Center for Law and Ethics. She is the author (with R. A. Lenhardt) of
The Racial Subject in Legal Theory in Keith E. Whittington et al, eds.,
The Oxford Handbook of Law and Politics (2008). Her papers are available on
SSRN.
Ricci v. DeStefano (Supreme Court of the United States, June 29/09) was a complicated and difficult case. At issue was the City of New Haven’s decision to throw out the results of a promotion test administered in order to fill vacant lieutenant and captain positions in the fire department because the results excluded all black firefighters who passed the test. Plaintiffs, 17 white firefighters and one Latino firefighter, scored high enough on the exam to be eligible for promotion but were instead told that they would not be promoted when the City refused to certify the test results. The aggrieved black firefighters, who also passed the test but scored below the plaintiffs, discovered that if the City certified the test results not one of them was eligible for promotion. The City of New Haven faced a “damned if you, damned if you don’t” scenario. Had the City abided by the results of the promotion test, it would have to defend itself in a lawsuit by the black firefighters for using a promotion process that produced a racially disparate impact, in possible violation of Title VII of the Civil Rights Act. However, refusing to follow the results of the promotion test would (and did) subject the City to a disparate treatment lawsuit by white firefighters for depriving them of promotions based on racial considerations, also in possible violation of Title VII.
Ricci, in essence, posed a tension between two very entrenched commitments embraced by most of our antidiscrimination laws. The prohibition against disparate treatment seeks to eliminate decisions made on the basis of judgments that reflect irrational prejudice or stereotypes about certain groups rather than fair assessments of a an individual’s abilities and merit. The prohibition against disparate impact seeks to eliminate (or at least scrutinize) facially neutral rules and practices which may be fair in form but discriminatory in practice. Discrimination under the latter prohibition often exhibits itself through the existence of stark and adverse impacts on groups historically subjected to more explicit forms of disparate treatment. These two commitments have coexisted in civil rights law for almost four decades without posing much of a conflict with each other, at least until
Ricci.
There was nothing inevitable about the tension posed in the case between the prohibition against disparate treatment on the one hand and disparate impact on the other. In important ways, these two commitments tend to reinforce each other in creating equal opportunity in the competition for scarce positions. Fidelity to both should operate, ideally, to force employers to avoid using selection criteria with questionable connections to successful job performance and that tend to reinforce preexisting racial (and gender) barriers to employment. When an employer uses objective selection criteria that are closely related to the abilities and skills required of the position at issue, there is less of a chance that bias, racial or otherwise, will be the basis for its decision. On the other hand, we worry about the fairness of job selection criteria when the connections between those criteria and job performance is more attenuated and those criteria tend to entrench historical patterns of racial (or gendered) exclusion and inequality.
The five member majority in
Ricci sought to remain faithful to both of these statutory commitments by fashioning a test that would mediate the tension between the two. The tension arose, the Court reasoned, because the City’s decision to avoid certifying a test that would result in a stark racially disparate impact is akin to the type of race-conscious decision making frowned upon in the affirmative action context. To be sure,
Ricci was not a classic affirmative action or “reverse discrimination” case. That is, no racial preferences were at work here. There was no decision to hire, admit, or promote a lower-scoring applicant over a higher scoring one based on racial considerations. In fact, the City ultimately chose not to promote anyone and to start from scratch—to design a promotion test that would not so starkly exclude an entire class of firefighters and would more accurately assess the skills required for the positions at issue.
Nevertheless, the Court’s commitment to normative colorblindness in its constitutional jurisprudence ultimately drove the majority’s view of the City’s actions. In other words, the Court’s desire to banish racial considerations from decision making altogether results in a very cramped reading of Title VII in order to equate a concern with avoiding discriminatory impacts with discrimination itself. Notably, the lower federal courts and the four dissenters refused to equate the two, particularly given the long history of exclusion of African Americans from professional firefighting ranks (including in the City of New Haven).
In addition to importing into Title VII law the colorblindness norm, the majority also imported from equal protection law the “strong basis in evidence” standard. This standard requires the decision maker to justify the necessity of race-conscious remedial relief. The Court in
Ricci ruled that an employer cannot discard a test out of concern for racially disparate impacts absent a strong basis in evidence that the test was deficient and that discarding the results were necessary to avoid violating the disparate impact provision. Whether a strong basis in evidence existed here was in much dispute, although one would not know it from the majority opinion. It is only by reading the dissenting opinion that one appreciates exactly how contested the evidence actually was on the record.
Much of the factual dispute in
Ricci revolved around the strength of the test’s relationship to actual job performance and the availability of less discriminatory assessments of performance. On the one hand, the City had taken care to hire an outside consultant to develop and administer both the written and oral portions of the test in an attempt to closely track the technical knowledge required by the position and to minimize any bias in favor or against a particular racial group. The company based the written multiple choice and oral exams on interviews and observations of current officers and their supervisors, as well as various written department materials covering the duties of the respective positions. On the other hand, critics of the test faulted it for testing memorization and for failing to test on-the-ground leadership and other skills actually utilized by positions at this level.
Perhaps most importantly the City required the consultant to adhere to a testing procedure outlined in its two-decade old contract with the firefighters union, which required administering a test consisting of a written portion worth 60% and an oral examination worth 40% of an applicant’s score. Such heavy reliance on written examinations became a central focus of critics of the test and its results, given that most municipalities have moved away from such tests due to their doubtful efficacy in measuring the qualities of a successful fire officer and their propensity toward yielding racially disparate results. One of the problems with written exams is that they tend to create advantages for second and third generation firefighters, who are most often white and have easier access to study materials than do first generation firefighters, who are most often ethnic minorities without such support networks. Such unequal access is one of the legacies of the long history of exclusion of minority groups from the profession. Despite these problems with written promotion examinations, there was no evidence that the City or its consultant ever considered alternative testing methods which might have produced less exclusionary results.
One might argue that what ultimately swayed the majority to rule in favor of the plaintiffs was the way in which the City botched the promotion process. The plaintiffs appeared quite reasonable in relying (to their own detriment) on a painstakingly designed test as the route to promotion in the department. The City’s end of the game decision to throw out the test after it was administered (and despite the existence of arguably more efficacious and less discriminatory promotion tests) seems egregious and careless. It is not difficult to have sympathy for these plaintiffs and to not want to reward the City for its failure to plan and design a better and fairer promotion process.
There is also language in
Ricci to suggest that the decision could be limited to circumstances in which the employer discards test results after the test is taken. Ultimately however, the majority’s language sweeps much broader. The Court treats the City’s concern for the stark disparate impact of an arguably flawed test with invidious race-based actions deserving of the type of judicial scrutiny imposed in the constitutional context. The import from equal protection law of the color blindness norm, as well as the stringent evidentiary standard that accompanies it, shifts the landscape of civil rights law in important ways. It elevates concern with race-blindness above the concern at the heart of disparate impact law—to remove employment criteria that constitute “built in headwinds” for majority groups and that are not closely linked to the skills and abilities to do the job at issue.
Ricci’s reach might yet not extend as far and wide as much of the majority’s language seems to suggest. For now
Ricci casts considerable doubt on the prohibition against disparate impact, which has been a crucial tool in the unfinished civil rights project of creating equal opportunity for all.
