The Background
According to the Court’s decision, the City Charter required the City to promote firefighters into officer positions based on how they ranked on promotional examinations. The examination consisted of both written and oral portions and required a certain amount of prior job experience and education. The experienced consulting firm hired to design the test analyzed the jobs at issue by interviewing, questioning and observing the incumbent officers.
At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates. . . .
For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. [Each test consisted of 100 questions and] was written below a 10th grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken.
IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors.
All of the assessors were from outside Connecticut and received special training. “Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members” (i.e., one white, one Hispanic and one black).
Following the November 2003 examinations, 34 out of the 77 (or 44%) of the candidates passed the lieutenant examination: 25 out of 43 [58%] whites, 6 out of 19 [ 31.5%] blacks, and 3 out of 15 [20%] Hispanics. Because there were 8 vacancies at the time of the examination, the top ten scores were eligible for immediate promotion. All of them were white.
As for the captain exam, 22 of the 41 (or 54%) of the candidates passed: 16 out of 25 whites (64%), 3 out of 8 blacks (37.5%), and 3 out of 8 Hispanics (37.5%). Because there were seven captain vacancies at the time of the examination, 9 candidates were eligible to be considered for an immediate promotion to captain—7 whites and 2 Hispanics.
Although the City had a contractual right to a technical report from the consultant analyzing the test results, instead the City immediately objected to the facial racial disparity in the results. The City told the Civil Service Board that the test results had a disparate impact. Some firefighters – without knowing how they scored – advocated certifying the test results because they had spent a lot of money buying studying materials and a lot of time studying and a new test would take years to develop and administer. Others objected on the grounds that the study materials were too long and expensive. Some suggested that a validation study be conducted.
The Board ultimately requested the consultant to explain how the test had been developed and conducted and also requested an outside panel of experts to review the situation. One of those experts was a competitor of the consultant and he opined that the test results were not surprising, criticized the lack of local input into the test questions and suggested the use of an assessment center which required the candidates to demonstrate their knowledge instead of merely answering questions on a test or in an interview. Another witness – who was black – from the Department of Homeland Security said that the test reviewed relevant and job related information. He suggested that the disparity was somewhat related to the fact that more white candidates took the exam than black candidates. The final “expert” was a college professor who know nothing about firefighting, but who opined that “regardless of what kind of written test we give in this country . . . we can just about predict how many people will pass who are members of under-represented groups. And your data are not that inconsistent with what predictions would say were the case.” Although the results may have been influenced by the fact that the job analysis surveys were initially completed mostly by white firefighters, “no matter what test the City had administered, it would have revealed “a disparity between blacks and whites, Hispanics and whites,” particularly on a written test.” The Board deadlocked on whether to certify the test results, which meant that the results were not certified.
The Litigation
The plaintiffs – 17 white firefighters and 1 Hispanic firefighter – filed suit under §§ 1983 and 1985 and under Title VII against the City and other defendants. The District Court granted summary judgment to the defendants and it was affirmed on appeal. The Second Circuit then considered whether to reconsider the decision en banc, but voted 7-6 against reconsideration.
The issue as framed by the Supreme Court:
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.
While the lower courts found that intentional discrimination could be excused in order to potentially avoid disparate impact liability under Title VII, the Court did not think that this was necessarily so. The plaintiffs argued that it should never be a defense to intentional racial discrimination that the employer was attempting to avoid unintentional discrimination. The defense argued that good faith efforts to avoid unintentional disparate impact should excuse intentional race discrimination. The court found both parties’ arguments to be simplistic and unrealistic. It rejected racial quotas or employer practices seeking a preferred racial balance. It also refused to prefer the disparate treatment provisions of Title VII over the disparate impact provisions.
If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), 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.
. . .
We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. 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.
In reaching a compromise, the Court considered decisions in other areas where it had permitted intentional discrimination. “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.”
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.
In this case, the City defended its actions on the grounds that the test results had a disparate impact on a racial class (i.e., a neutral practice has a statistically disproportionate affect on a particular group). However, the Court pointed out that the disparate statistics constituted only a prima facie case and that the employer could have defended the results by showing that the test was job related and consistent with business necessity. At that point, the plaintiffs would have had to show that “the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.” In this case, there was no dispute that the group opposing the test results could have met a prima facie case and there was overwhelming evidence that the City could have met its burden of showing the job-related/business necessity defense. There was, however, a question about whether a reasonable alternative existed. The Court rejected challenges that weighing the written and oral portions of the exam differently might have produced different results or that utilizing an assessment center would have been available to the City at the time or produced a different result.
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. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.
. . .
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 Court did not address the plaintiffs’ Equal Protection arguments and did
not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. . . . Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference
While employers may consider how to make its employment testing and processes more fair, “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.”
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NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
