Ricci v. DeStefano
557 U.S. _
Case Year: 2009
Case Ruling: 5-4, Reversed and Remanded
Opinion Justice: Kennedy
Court Opinion Joiner(s):
Alito, Roberts, Scalia, Thomas
1st Concurring Opinion
1st Dissenting Opinion
Joiner(s): Breyer, Souter, Stevens
2nd Concurring Opinion
2nd Dissenting Opinion
3rd Concurring Opinion
3rd Dissenting Opinion
Other Concurring Opinions:
The personnel department of New Haven, Connecticut, contracted with an outside company to develop a written and oral examination to be used to identify the most qualified candidates for promotion in the city's fire department. The final product was based on a study of the skills necessary to perform the assigned fire-fighting tasks for each rank. In 2003 the department sought to fill vacancies for captain and lieutenant by promotion. The test results would determine those eligible to be considered for promotion for the next two years. Given these high stakes many firefighters studied for months, at considerable personal and financial cost. Under the city's employment rules, the promotions for each vacancy had to be made from among the top three performers on the examination (the "rule of three").
Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination--43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed--25 whites, 6 blacks, and 3 Hispanics. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.
Forty-one candidates completed the captain examination--25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed--16 whites, 3 blacks, and 3 Hispanics. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain--7 whites and 2 Hispanics.
Faced with this racially disproportionate outcome and fearing a potential Civil Rights Act lawsuit, the New Haven Civil Service Board (CSB), after considerable deliberations, decided not to certify the results. No firefighter was promoted.
One Hispanic and 17 white firefighters who had taken the examination filed suit alleging that the city, by failing to certify the test results, violated their rights under the Civil Rights Act and the equal protection clause of the Fourteenth Amendment. They charged that the city's decision was racially discriminatory. After preparing in good faith for the test and scoring well on it, the plaintiffs charged, they were not promoted only because the city did not like the prospect of advancing so many nonminorities. The district court and the court of appeals upheld the city's actions, finding that the decision to cancel the test results was based on a desire to avoid litigation and a commitment to diversity. Because no promotions were made, applicants of all races were treated equally.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.
Petitioners raise a statutory claim, under the disparate-treatment prohibition of Title VII, and a constitutional claim, under the Equal Protection Clause of the Fourteenth Amendment. A decision for petitioners on their statutory claim would provide the relief sought, so we consider it first.
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as "disparate treatment") as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as "disparate impact").
As enacted in 1964, Title VII's principal nondiscrimination provision held employers liable only for disparate treatment. That section retains its original wording today. It makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Disparate-treatment cases present "the most easily understood type of discrimination," and occur where an employer has "treated [a] particular person less favorably than others because of" a protected trait. A disparate-treatment plaintiff must establish "that the defendant had a discriminatory intent or motive" for taking a job-related action.
The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a disparate impact. But in Griggs v. Duke Power Co. (1971), the Court interpreted the Act to prohibit, in some cases, employers' facially neutral practices that, in fact, are "discriminatory in operation." The Griggs Court stated that the "touchstone" for disparate-impact liability is the lack of "business necessity": "If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.". . .
Twenty years after Griggs, the Civil Rights Act of 1991 was enacted. The Act included a provision codifying the prohibition on disparate-impact discrimination. That provision is now in force along with the disparate-treatment section already noted. Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses "a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin." An employer may defend against liability by demonstrating that the practice is "job related for the position in question and consistent with business necessity." Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs.
Petitioners allege that when the CSB [Civil Service Board] refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII's disparate-treatment provision. The City counters that its decision was permissible because the tests "appear[ed] to violate Title VII's disparate-impact provisions."
Our analysis begins with this premise: The City's actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race-- i.e. , how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because "too many whites and not enough minorities would be promoted were the lists to be certified." Without some other justification, this express, race-based decisionmaking violates Title VII's command that employers cannot take adverse employment actions because of an individual's race.
The District Court did not adhere to this principle, however. It held that respondents' "motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent." And the Government makes a similar argument in this Court. . . . But [this argument turns] upon the City's objective--avoiding disparate-impact liability--while ignoring the City's conduct in the name of reaching that objective. Whatever the City's ultimate aim--however well intentioned or benevolent it might have seemed--the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.
We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII--that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.
With these principles in mind, we turn to the parties' proposed means of reconciling the statutory provisions. Petitioners take a strict approach, arguing that under Title VII, it cannot be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability--even if the employer knows its practice violates the disparate-impact provision. Petitioners would have us hold that, under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination. That assertion, however, ignores the fact that, by codifying the disparate-impact provision in 1991, Congress has expressly prohibited both types of discrimination. We must interpret the statute to give effect to both provisions where possible. We cannot accept petitioners' broad and inflexible formulation. . . .
At the opposite end of the spectrum, respondents and the Government assert that an employer's good-faith belief that its actions are necessary to comply with Title VII's disparate-impact provision should be enough to justify race-conscious conduct. But the original, foundational prohibition of Title VII bars employers from taking adverse action "because of . . . race." And when Congress codified the disparate-impact provision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-faith effort to comply with the new, disparate-impact provision. . . . Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a "focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures." Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer's preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. The purpose of Title VII "is to promote hiring on the basis of job qualifications, rather than on the basis of race or color." Griggs.
In searching for a standard that strikes a more appropriate balance, we note that this Court has considered cases similar to this one, albeit in the context of the Equal Protection Clause of the Fourteenth Amendment. The Court has held that certain government actions to remedy past racial discrimination--actions that are themselves based on race--are constitutional only where there is a " 'strong basis in evidence' " that the remedial actions were necessary. Richmond v. J. A. Croson Co.(1989). This suit does not call on us to consider whether the statutory constraints under Title VII must be parallel in all respects to those under the Constitution. That does not mean the constitutional authorities are irrelevant, however. Our cases discussing constitutional principles can provide helpful guidance in this statutory context.
Writing for a plurality in Wygant [ v. Jackson Board of Education (1986)] and announcing the strong-basis-in-evidence standard, Justice Powell recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. The plurality stated that those "related constitutional duties are not always harmonious," and that "reconciling them requires . . . employers to act with extraordinary care." The plurality required a strong basis in evidence because "[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees." The Court applied the same standard in Croson, observing that "an amorphous claim that there has been past discrimination . . . cannot justify the use of an unyielding racial quota."
The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of "practices that are fair in form, but discriminatory in operation." Griggs. But it has also prohibited employers from taking adverse employment actions "because of" race. Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers' voluntary compliance efforts, which are essential to the statutory scheme and to Congress's efforts to eradicate workplace discrimination. And the standard appropriately constrains employers' discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.
Resolving the statutory conflict in this way allows the disparate-impact prohibition to work in a manner that is consistent with other provisions of Title VII, including the prohibition on adjusting employment-related test scores on the basis of race. Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.
If an employer cannot rescore a test based on the candidates' race, then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates--absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer's ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII's express protection of bona fide promotional examinations.
For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII. . . . Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution. . . .
Based on the degree of adverse impact reflected in the [examination] results, respondents were compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact. The problem for respondents is that a prima facie case of disparate-impact liability--essentially, a threshold showing of a significant statistical disparity and nothing more--is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations 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. . . .
On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence--let alone the required strong basis in evidence--that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City's discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.
The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair.
The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City's refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City's reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results--and threats of a lawsuit either way--the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results. . . .
Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, CONCURRING.
I join the Court's opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection? The question is not an easy one.
The difficulty is this: Whether or not Title VII's disparate-treatment provisions forbid "remedial" race-based actions when a disparate-impact violation would not otherwise result--the question resolved by the Court today--it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. But if the Federal Government is prohibited from discriminating on the basis of race, Bolling v. Sharpe (1954), then surely it is also prohibited from enacting laws mandating that third parties-- e.g. , employers, whether private, State, or municipal--discriminate on the basis of race. See Buchanan v. Warley (1917). As the facts of these cases illustrate, Title VII's disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is, as the Court explains, discriminatory. . . .
The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them.
JUSTICE ALITO, WITH WHOM JUSTICE SCALIA AND JUSTICE THOMAS JOIN, CONCURRING.
I join the Court's opinion in full. . . .
Petitioners are firefighters who seek only a fair chance to move up the ranks in their chosen profession. In order to qualify for promotion, they made personal sacrifices. Petitioner Frank Ricci, who is dyslexic, found it necessary to "hir[e] someone, at considerable expense, to read onto audiotape the content of the books and study materials." He "studied an average of eight to thirteen hours a day . . . , even listening to audio tapes while driving his car." Petitioner Benjamin Vargas, who is Hispanic, had to "give up a part-time job," and his wife had to "take leave from her own job in order to take care of their three young children while Vargas studied." "Vargas devoted countless hours to study . . . , missed two of his children's birthdays and over two weeks of vacation time," and "incurred significant financial expense" during the three-month study period.
Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City's exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City's asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.
The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them.
JUSTICE GINSBURG, WITH WHOM JUSTICE STEVENS, JUSTICE SOUTER, AND JUSTICE BREYER JOIN, DISSENTING.
In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven's, pervasively discriminated against minorities. The extension of Title VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities.
The white firefighters who scored high on New Haven's promotional exams understandably attract this Court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated "a strong basis in evidence" for its plea. In so holding, the Court pretends that "[t]he City rejected the test results solely because the higher scoring candidates were white." That pretension, essential to the Court's disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.
By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served--as it was in the days of undisguised discrimination--by a fire department in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co. (1971), which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court's order and opinion, I anticipate, will not have staying power.
The Court's recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U.S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even "more pervasive than in the private sector." . . . The city of New Haven (City) was no exception. In the early 1970's, African-Americans and Hispanics composed 30 percent of New Haven's population, but only 3.6 percent of the City's 502 firefighters. The racial disparity in the officer ranks was even more pronounced: "[O]f the 107 officers in the Department only one was black, and he held the lowest rank above private." . . .
Following a lawsuit and settlement agreement the City initiated efforts to increase minority representation in the New Haven Fire Department. Those litigation-induced efforts produced some positive change. New Haven's population includes a greater proportion of minorities today than it did in the 1970's: Nearly 40 percent of the City's residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City's firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department's 21 fire captains is African-American. It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed. . . .
Neither Congress' enactments nor this Court's Title VII precedents offer even a hint of "conflict" between an employer's obligations under the statute's disparate-treatment and disparate-impact provisions. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity. . . .
Yet the Court today sets at odds the statute's core directives. When an employer changes an employment practice in an effort to comply with Title VII's disparate-impact provision, the Court reasons, it acts "because of race"--something Title VII's disparate-treatment provision generally forbids. This characterization of an employer's compliance-directed action shows little attention to Congress' design or to the Griggs line of cases Congress recognized as pathmarking. . . .
To "reconcile" the supposed "conflict" between disparate treatment and disparate impact, the Court offers an enigmatic standard. Employers may attempt to comply with Title VII's disparate-impact provision, the Court declares, only where there is a "strong basis in evidence" documenting the necessity of their action. The Court's standard, drawn from inapposite equal protection precedents, is not elaborated. One is left to wonder what cases would meet the standard and why the Court is so sure this case does not. . . .
The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strong-basis-in-evidence standard. When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance. I see no good reason why the Court fails to follow that course in this case. Indeed, the sole basis for the Court's peremptory ruling is the demonstrably false pretension that respondents showed "nothing more" than "a significant statistical disparity."
Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven's failure to certify the exam results violated Title VII's disparate-treatment provision. . . .
It is indeed regrettable that the City's noncertification decision would have required all candidates to go through another selection process. But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers. Yet that is the choice the Court makes today. It is a choice that breaks the promise of Griggs that groups long denied equal opportunity would not be held back by tests "fair in form, but discriminatory in operation." This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII. I dissent from the Court's judgment, which rests on the false premise that respondents showed "a significant statistical disparity," but "nothing more."