Ricci v. DeStefano



Facts: New Haven goes way out of its way to design a test that will be inclusive for non-white firefighters seeking promotion. But in spite of all those efforts, white candidates prosper. So they throw out the test results, ostensibly for fear that they're going to get sued for promoting only whites.

Posture: Summary judgment for the defendants, affirmed on appeal.

Issue: Did the city have a lawful justification for its race-based action?

Holding: No. Reversed.

Rule: A race-based action like the city's is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.

Reasoning: Title VII prohibits some kinds of things that have disparate impacts. Congress imposed this liability in order to rid the workplace of practices that are fair in form but discriminatory in operation. It has also prohibited employers from taking adverse actions that are "because of" race. If an employer can't rescore a test because of race, then they also can't discard it for that reason.

Before an employer can engage in intentional discrimination for the 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 does not do so.

There's no dispute that this evidence is lacking.

Dicta: Scalia, concurring: Sooner or later we're really going to have to confront whether Title VII and Equal Protection conflict.

Ginsburg, dissenting: Context matters (Grutter). The firefighters here deserve sympathy, but they had no vested right to a promotion, and racial discrimination in municipal employment is more pervasive than in the private sector. Removing overt race-based classifications hasn't ushered in equality.