The elements of a perfect storm for employers coalesce in the U.S. Supreme Court this week in a major job bias case asking what employers legally may do when a decision to avoid discrimination against one group of employees may mean discrimination against another group.
Ricci v. DeStefano, nos. 07-1428 and 08-328, is one of a quartet of major civil rights cases being heard in the justices' April and final round of oral arguments, and it is perhaps the most important job discrimination case to come before the Court in years.
Although the case involves a public employer -- the city of New Haven, Conn. -- whatever path the justices take to resolve the interplay of the equal protection clause and Title VII of the Civil Rights Act of 1964 could have significant ramifications as well for private employers and their efforts to maintain diversity in their workplaces.
The high court challenge stems from 2003 exams administered by the city of New Haven to determine the promotions of eligible firefighters to the ranks of lieutenant and captain. When the results came back, city officials found severe racial disparities: The pass rate of black candidates on both exams was about one-half the pass rate of white candidates, and out of 19 possible candidates for promotion to the 15 available positions, no black firefighter scored high enough to qualify.
Because of the severe disparate impact of the test, the city's Civil Service Board held five days of public hearings on whether to certify any list of eligible candidates. The board ultimately voted, 2-2, a split vote that left the results uncertified. No promotions went forward. Shortly afterward, a group of high-scoring firefighters sued the city.
In the high court, Frank Ricci and other firefighters among the top test-scorers ask the justices whether, as they believe, the city's refusal to certify the results discriminated against them on the basis of race in violation of the 14th Amendment's equal protection clause and Title VII's prohibition on disparate treatment discrimination. To have gone forward with the test results, the city counters, would have put it in violation of Title VII's ban on disparate impact discrimination and in jeopardy of a lawsuit by black firefighters.
"My feeling is: If you design a race-neutral test and there is objectively no problem with the test and there is no specific race-based animus to any of the actions here, then whatever the result is, it's fine and you go with that," said Ilya Shapiro of the libertarian Cato Institute, who filed an amicus brief supporting Ricci.
"If the test yields a disparity among racial groups, the problem isn't with the employer but with why aren't there qualified applicants?" he said. "It might be an issue of education or something else. Whatever it is, it's not a legal issue related to the employers' hiring and promotion practices."
But John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., an amicus party supporting the city, said, "In 2003, New Haven had cause to question the reliability of the test when none of the 27 African-American firefighters who took the test would have been promoted.
"I'm open to there being a test, but when you get these results, New Haven, as a responsible body, ought to be able to go back and rethink the test. New Haven should not have to worry when it acts responsibly in the face of clear signs of a problem, that it will be sued."
Ricci, represented by Karen Lee Torre of New Haven's Law Offices of Norman A. Pattis, notes that these tests for promotions are given infrequently and that he and his fellow plaintiffs bore significant expense and personal sacrifice to prepare during the three-month period prior to the test.
Ricci, for example, to overcome dyslexia, paid to convert study texts to audio recordings; Gregory Boivin resigned from part-time jobs; Benjamin Vargas and his wife both took leaves from their second and primary jobs; and Christopher Parker studied in his wife's hospital room as they awaited the delivery of their son.
The city, argues Torre, took steps to ensure that the exam questions were job-related and that the promotion process overall was race-neutral.
In the high court, Torre seeks reversal of a summary judgment by the district court and an affirmance by the 2nd U.S. Circuit Court of Appeals by making essentially two arguments.
First, the equal protection challenge: The city's refusal to promote Ricci and his colleagues, she contends, was a "race-based government action grounded solely on the racial distribution of the test results." Because it was a race-based action, the justices must apply strict scrutiny, which requires the city to prove it had a compelling government interest in taking that action and the action was narrowly tailored to achieve its goal.
The city fails strict scrutiny, she argues. It did not claim it was attempting to remedy past official discrimination, and its fear of a Title VII disparate impact suit "cannot supply the requisite compelling interest, particularly when [the city] had no reason to think that the test inflicted any impermissible discrimination," said Torre.
Canceling promotions across the board, she adds, is not a remedy narrowly tailored to achieve any compelling interest. Allowing the cancellation because of the successful candidates' race and related racial concerns, warns Torre, "would allow overt racial balancing, de facto quotas, and blunt race politics in government hiring."
The city, represented by Christopher J. Meade, a partner in Wilmer Cutler Pickering Hale and Dorr's New York office, counters that strict scrutiny does not apply to this situation.
"This case does not involve racial classifications but rather race-neutral action -- the noncertification applied to all candidates of all races," said Meade.
Even if strict scrutiny applied, Meade adds, the city's action survives review because compliance with Title VII's disparate impact provisions is a compelling interest, and the city had evidence to conclude that using the test results would violate Title VII. Declining to certify tests that appeared to violate Title VII, he argues, is by definition "narrowly tailored" because the city did no more than avoid the violation.
Second, Ricci argues that the city also violated Title VII. Failing to promote him and his eligible colleagues was disparate treatment motivated by their race, according to Torre.
"Mere numerical evidence of disparate impact" and "mere conjecture" about possible alternative tests with less disparate impact cannot be sufficient to support the city's resort to race-based deprivations, Torre argues.
But Meade counters that Title VII prohibits both disparate impact and disparate treatment discrimination. Ricci's argument -- that the test results must be used regardless of whether doing so would be a disparate impact violation -- is "irreconcilable" with the law. The Civil Service Board's decision not to certify the results, he adds, was grounded in a "strong basis" to conclude that using the tests would violate Title VII.
Not surprisingly, the high court challenge has drawn more than two dozen amicus briefs from an array of civil rights organizations, law enforcement and firefighting groups, and state and local government units.
The United States argues that Ricci's approach "would needlessly pit Title VII's basic anti-discrimination provisions against one another and would defeat Congress's intent to encourage employers to comply voluntarily with Title VII."
The government also contends that declining to certify test results is not the equivalent of "racial balancing" or imposing "quotas." That decision, in itself, "reveals nothing about how promotions will ultimately be made or the race of the persons to be promoted."
But the government urges the justices to send the case back to the lower courts to determine whether the city's claimed purpose of complying with Title VII was a pretext for intentional race discrimination in violation of either Title VII or the equal protection clause.
This case, said John Payton of the NAACP Legal Defense and Educational Fund, plays out against the long, pervasive history of employment discrimination in firefighting throughout the nation -- discrimination, he added, that has been more difficult to eradicate than in any other public or private employment sector. Employers need flexibility to self-examine and self-evaluate their job practices to continue making progress.
NO-WIN SITUATION FOR EMPLOYERS
"I would feel very torn in advising an employer right now," said employment law scholar Marcia McCormick of Samford University Cumberland School of Law. "As a practical matter, it seems employers can't win no matter what they do here."
But Ricci's argument is "unworkable," she said: "If recognizing race at all is discrimination, there is nothing an employer can do because anything it does is discrimination. Even surveying its own work force as to who is white, who is African-American, would become the roots of a discrimination claim."
Employee counsel Paul Mollica, a partner at Chicago's Meites, Mulder, Mollica & Glink, agreed, adding that Ricci's equal protection argument, if successful, would upend a whole field of civil rights litigation that goes back to the landmark 1971 Griggs v. Duke Power Co., which recognized the disparate impact framework for analyzing job bias cases.
"It also would cast some constitutional doubt on the disparate impact section of Title VII," he said. "In this case, they would be saying there are times that complying with that section would violate the other section. For private employers, it would create a sort of cognitive dissonance -- what are we supposed to do?"
But Cato's Shapiro said, "The employer was concerned about getting sued by black firefighters and instead got sued from the other side. Unfortunately, that's what happens. The guidance that the court needs to set out is: If there are not any allegations of racial animus or pretext in the testing criteria applied, then there should not be a basis for a suit."
Shapiro does not see the Ricci case as a "hard" case for the justices and suggested a victory for the Ricci side in a 5-4 majority with Justice Anthony M. Kennedy making the difference.
Employee counsel Debra Katz of Washington's Katz, Marshall & Banks, said she too could see a 5-4 outcome, but for the city, not Ricci.
"Given the history of discrimination in firefighting and the policy behind Title VII, this is exactly what we want municipalities to do -- to step back when a test has a disparate impact and see if there is a more reliable test out there," she said.
Ricci is not the typical job bias case in the Supreme Court, Mollica said, which often feature "lawyers' issues" about bringing and proving these lawsuits.
"This is not just for lawyers. It's an important issue for municipalities and, conceivably, for private employers as well."