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Does This Put Out the Fire? - The Supreme Court's Decision in Ricci v. DeStefano

In a much anticipated decision, the Supreme Court has finally spoken to resolve the tension between the disparate impact and disparate treatment sections of Title VII of the Civil Rights Act of 1964.

The factual premise of Ricci v. DeStefano is well known. In 2003, Frank Ricci and others each took one of two qualifying exams given by the City of New Haven Fire Department. The results of the two separate exams would determine who among the Fire Department's ranks would be promoted the rank of lieutenant and captain. The results showed that white candidates had outperformed minority candidates. Concerned at what appeared to be the tests' disparate impact, the City threw out the examination results. Frank Ricci and other white candidates who scored well on the exams sued, claiming the City had discriminated against them on the basis of their race in violation of Title VII.[1] The Supreme Court ruled that the City should not have thrown out the test results even if they did have a good faith concern (which fact, judging from Justice Alito's concurrence, itself seems to have been contested) about the tests' disparate impact. The Court makes clear that in order to violate the disparate treatment section of Title VII in favor of the disparate impact section of Title VII an employer must have a strong basis in evidence that it will be subject to disparate impact liability. The Court went on to say that the evidence before them did not meet the new standard.??While the Court has set out a new standard and has made this demonstration of what does not meet it, the opinion provides little guidance as to what would meet it. Moreover, while accompanying opinions provide a more complete factual picture as part of tangential analysis, the majority opinion does not take the opportunity to provide guidance for employers as to how those facts would fit in any analysis. What remains is this, Title VII (for now, if Justice Scalia is to be heeded) prohibits both forms of discrimination. Concerning disparate impact claims, which often arise in qualifying exam-type situations, employers should be sure minorities are represented in the exam preparation. They should also take care that study materials and that information on which the test is based are equally available to all constituencies taking the tests. As always, employers should continue to be mindful of any employment decision where discrimination could be made an issue.

[1] The plaintiffs also claimed that the City had violated their constitutional rights to equal protection. Because it could use the Title VII issue to dispose of the case, the Supreme Court did not address the constitutional issue (except for brief treatment in Justice Scalia's concurrence).

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