1 October 2009 by

Promotions based on discrimination: lessons to be learnt from the United States

[Frank Ricci et al Petitioners vs John de Stefano et al: Supreme Court of the United States (Nos: 07-1428 and 08-328: 29 June 2009)]

The case concerns the fire department of the City of New Haven (the City) in Connecticut, where firefighters are zealous in their endeavours to achieve promotion within the rank of officer. There is intense competition for promotion and the City relied upon objective examinations to identify the best qualified candidates.

In 2003, the City's firefighters sat the examinations to qualify for promotions to the rank of lieutenant or captain. The exam results were to be relied on to determine which firefighters would be considered for promotions over the next two year period. Many firefighters studied for months, often at their own personal and financial cost, to do well and put themselves in line for such promotion.

The examination results indicated that white majority candidates outperformed the minority candidates who were mainly Black or Hispanic. This gave rise to a significant public debate. There were firefighters who argued that the test results should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on those exam results. Other firefighters claimed the exams were fair and threatened a similar lawsuit if the City relying on the statistical racial disparity, ignored the test results and denied them promotions.

The City took a decision to discard the results. It led to this lawsuit and the complaint by the predominantly white firefighters that by discarding the exam results, the City discriminated against them because of their race and that this violated Title VII of the Civil Rights Act of 1964. The minority firefighters argued that if the exam results were accepted, then their rights were similarly jeopardised.

In terms of the applicable legislation, before an employer can engage in intentional discrimination for the purpose of 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 a race-conscious, discriminatory action.

The Court accepted that the City's actions violated Title VII's disparate treatment prohibition in the absence of a valid defence. All the evidence demonstrated that the City rejected the test results because the higher scoring candidates were white, without objective justification, race based decision making is prohibited.

The City could be liable for disparate income discrimination if the exams at issue were not job related and consistent with business necessity, or if there was an equally valid, less discriminatory alternative that would serve the City's needs but which the City refused to adopt.

The City's claim that the exams were an issue and were not job related and consistent with business necessity was blatantly a contradiction, because the evidence indicated the detailed steps that had been taken to administer the tests and the detailed analysis of the questions that had been posed to ensure their relevance to the positions of captain and lieutenant. The City, it was found, had turned a blind eye to evidence supporting the validity of the examinations.The City's argument failed.

Fear of litigation alone could not justify the City's reliance on race to the detriment of individuals who had passed the examinations and qualified for promotions. Discarding those test results was found to be invalid.

Employers must be careful not to seek to remedy a perceived wrong, through public pressure, only to find that they have inadvertently created a difference dispute which cannot be overcome.

Fiona Leppan,
Director, Employment law

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