On June 29, 2009, the U.S. Supreme Court issued its eagerly anticipated decision in the case of Ricci v. DeStefano. This case involved the issue of racial bias in connection with the use of test results for purposes of promotion to the ranks of lieutenant and captain in the New Haven, Connecticut fire department. In 2003, the city administered objective examinations to identify firefighters best qualified for promotion. The test results showed that white candidates had outperformed racial minority candidates to such an extent that, except for two Hispanic candidates, no racial minority candidates would be promoted to existing vacancies. Because of this outcome, city officials expressed concern that the tests had discriminated against minority candidates. The city feared that if it certified the test results, a lawsuit would ensue which could find the city liable for race discrimination in the promotion process. Consequently, after much deliberation, the city decided not to certify the test results. As a result, no one was promoted, including   the seventeen white candidates and two Hispanics who would have filled the open positions if the test results had been certified.

Some of the candidates who would have been promoted if the test results had been certified filed this lawsuit, claiming that the city intentionally discriminated against them on the basis of their race. In a 5-4 decision written by Justice Kennedy, the Supreme Court ruled in favor of these candidates and held that in throwing out the test results, the city had violated the race discrimination provisions of Title VII of the Civil Rights Act of 1964. In reaching this decision, the court resolved the tension under Title VII between intentional discrimination—also called “disparate treatment discrimination”–on the one hand, and unintentional discrimination—also called “disparate impact discrimination”–on the other. In other words, as raised in this case, the tension was between (a) intentionally discriminating against the white firefighters and two Hispanic firefighters by throwing out the test results and depriving them of a promotion, in order to avoid discriminating against the minority applicants, and (b) unintentionally discriminating against the minority candidates by adhering to the test results.

The Supreme Court resolved this tension by ruling that before an employer can engage in intentional discrimination for the purpose of avoiding or remedying unintentional discrimination against racial minorities, 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.” The Court held that the city did not have such a strong basis in the evidence, because there was insufficient evidence to show that the tests at issue were either not job related and consistent with business necessity, or there existed an equally valid, less discriminatory alternative that served the city’s needs but that the city refused to adopt. In fact, the court ruled that the evidence showed that the exams were job related and consistent with business necessity, and there was insufficient evidence that there existed an equally valid, less discriminatory alternative that served the city’s needs. With respect to the city’s fear of being sued by the minority firefighters who would not have been promoted if the test results had been certified, the court ruled that the city could successfully defend such a case by invoking the very holding in this case, namely that had it not certified the results, it would have been liable for intentional discrimination. The Court directed that the case be remanded to the trial court and judgment entered for the employees who sued.

The upshot of the Court’s decision is that any employer faced with the dilemma of choosing between intentional or “disparate treatment” liability on the one hand, and unintentional, “disparate impact” liability on the other hand, must choose to risk the latter rather than the former, unless the employer has a “strong basis in evidence” to believe that it will in fact be liable for the latter type of discrimination. The mere fear of such liability, or apparently even the uncertainty of such liability, is insufficient to justify intentional race discrimination. This makes it incumbent on employers to carefully evaluate the available evidence and make an informed decision based only upon that evidence.