I don’t even know if I made it . . . but the people who passed should be promoted.  When your life’s on the line, second best may not be good enough.

– New Haven firefighter Frank Ricci

Just how should an employer determine who is best and who is second best?  The law requires employers to make these determinations in a race-neutral way and show race-neutral results.  So what happens when the determinations of first and second place (or any other place) appear not to be race neutral, even though efforts were made to ensure that it would be?  Can an employer make a race-based action to undo the results that appear not to be race-neutral?

In 2003, New Haven, Connecticut city officials gave 118 firefighters a test to determine which firefighters would qualify for promotion to officer ranks over the next two years.  The firefighters who passed the test would be ranked according to score and appointed in approximate ranked order to fill the city’s vacant officer positions.  Although firefighters of all races passed the test, when the results were ranked, white firefighters outranked minority firefighters such that only two Hispanic firefighters and no black firefighters would be eligible for promotion.   Of the 15 vacant officer positions, all could be filled by whites, and only two could be potentially filled by the two highly-ranked Hispanic candidates.

After several public and private meetings in 2004, New Haven city officials recognized that this result might show a “racially disparate impact,” in other words, unintentional racial discrimination, that would give minority firefighters the basis for a racial-discrimination lawsuit.  Given the risk, the city officials could not agree to certify the results and threw out the exam.  But instead of preventing a lawsuit, the city officials got one:  18 of the  firefighters (17 white, 1 Hispanic) who passed the exam sued the City of New Haven.

The firefighters claimed that the City had violated their rights under the Equal Protection clause of the Fourteenth Amendment and sued under 42 U.S.C. section 1983 and 1985, and the disparate-treatment prohibition of Title VII of the Civil Rights Act of 1964.  The Federal District Court granted summary judgment in favor of the City, concluding in part that the City’s decision to throw away the exam was not racially discriminatory because “all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.”  The Federal Court of Appeals for the Second Circuit affirmed the District Court and adopted the District Court’s reasoning.  Judge Sonia Sotomayor, current nomination for the Supreme Court, was one of the judges on the appeals panel hearing the case.  The firefighters appealed to the Supreme Court.

Before exploring the Supreme Court decision, it is necessary to understand the law applied to employment-based racial-discrimination claims in the United States and how it frames the positions in this case.   The Civil Rights Act 1964, as amended, prohibits both intentional racial discrimination (called ‘disparate treatment’) and, in some cases, unintentional  racial discrimination (called disparate impact’).  The City of New Haven was afraid of being sued for unintentional racial-discrimination because certifying the test results would mean that almost all of the minority firefighters that passed the city’s test would be excluded from consideration for a promotion.  Instead, the City was sued by its white firefighters for intentional racial-discrimination because throwing out the test took away their chance to be promoted.

Thus, the initial question for the Supreme Court became the following: Is it racial-discrimination, in violation of the Civil Rights Act, when an employer intentionally takes an adverse action against employees of a particular race to undo the possible prior unintentional racial-discrimination of employees of another race?

The Supreme Court had earlier dealt with this question in the constitutional context in Wygant v. Jackson Bd. of Ed., 476 U. S. 267 (1986).  In that case, a plurality opinion by Justice Powell answered that, yes, it is racial discrimination unless the there is a “strong basis in evidence” that remedial discriminatory action was necessary.  Justice Powell wrote that this “strong-basis-in-evidence standard” balanced the need to eliminate racial discrimination when it is discovered with the need to otherwise act without attention to race.

In adopting the “strong-basis-in-evidence” standard for the firefighter’s case and future Civil Rights Act cases, Justice Kennedy noted the same need for balance between an employer’s obligation to undo racial-discrimination and yet not base employment decisions on race unless necessary.  In the promotion context, writes Kennedy, it means that:

Once [the process for promotions] 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 that Congress has disclaimed.

Out of this context comes the majorities holding and the answer to the initial question: Is it racial-discrimination, in violation of the Civil Rights Act, when an employer intentionally takes an adverse action against employees of a particular race to undo the possible prior unintentional racial-discrimination of employees of another race?  Writes Justice Kennedy:

[B]efore 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.

The firefighters had argued for a stricter standard – that any race based action by an employer, even one to remedy prior racially discriminatory action, violates the Civil Rights Act.  But, for the firefighters, this standard won the case.  As applied, Justice Kennedy found that:

[T]he record makes clear that there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate impact liability in violation of [the Civil Rights Act].

Kennedy goes on to say that simply determining, as the City of New Haven did, the existence of possible disparate-impact is not the same as having a strong basis in evidence.  The City of New Haven should have considered its potential liability for the possible disparate impact – in other words – whether the minority firefighters could show that either the test was not job related and consistent with business necessity, or that the City refused to adopt an existing, equally valid, less-discriminatory alternative that served the City’s needs.  Kennedy writes that had the City of New Haven considered its liability, it could not reasonably have found a strong basis in evidence in support of throwing away the test results.

The Supreme Court thus reversed the Second Court of Appeals, granted summary judgment for the firefighters, and remanded the case for further proceedings consistent with its opinion.

Justice Scalia, writing a concurring opinion, adds that it not only seems clear that race-based actions are permitted under a strong-basis-in-evidence standard, but that such race-based actions are required if no other action would undo the prior discriminatory result.  This requirement, writes Scalia, could be at odds with the Equal Protection Clause of the  Fourteenth Amendment.