Supreme Court Rules that City Violated Title VII When It Threw Out Test Results Because of Its Fear of Violating Title VII.

In an opinion issued today entitled Ricci v. DeStefano, the United States Supreme Court ruled that the city of New Haven, Connecticut violated Title VII when it “threw out” promotional examination results after it discovered that the results disproportionately favored non-minority test takers.

Although the city had carefully planned the test and hired an organization to design the test to assure racial neutrality, the test results showed a significant disparity in results. There was no question that the results established a prima facie case of disparate-impact discrimination—a policy or practice that produces a disparate impact on a protected minority group. There was also no question that throwing the test results out would constitute disparate treatment discrimination because it would harm successful test takers based solely on their race, i.e., because they were white and received a high score, there test results would be thrown out. This put the city in an uncomfortable position—it had to determine whether to throw-out the test results and risk a lawsuit by the successful applicants for disparate-treatment discrimination or certify the test results and risk a lawsuit by the unsuccessful applicants for disparate-impact discrimination. The city chose the former and risked the lawsuit with the successful applicants.

Thus, the question for the Supreme Court was “whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.”

The Court answered the question in this way: “[B]efore an employer can engage in intentional discrimination for the asserted purposes 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.” In other words, there must be strong evidence to support the fear of liability for the disparate results complained of before an employer may take any race-conscious action.

In this case, the Court ruled that the city of New Haven did not have strong evidence of such liability and, therefore, ruled that the act of throwing out the tests was a violation of Title VII.