Justices Rule for White Firefighters in Bias Case

Sheila Foster in The New York Times, June 29, 2009

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WASHINGTON — The Supreme Court ruled on Monday, in a case with enormous implications for workplaces across the country, that white firefighters in New Haven suffered unfair discrimination because of their race when the city scrapped the results of a promotional exam.

“The city’s action in discarding the tests violated Title VII,” the court held in a 5-to-4 decision, referring to a section of the Civil Rights Act of 1964. The majority said the city’s fundamental arguments were “blatantly contradicted by the record.”

Monday’s decision in Ricci v. DeStefano, No. 07-1428, came on the last day of the court’s term and was one of the most closely watched discrimination cases in years. The ruling is sure to be closely studied by personnel departments and their lawyers for indications of how far employers can go, and under what circumstances, in considering race in decisions on hiring and promotion.

And while the case concerned public employees, the ruling is also likely to affect private employers, since Title VII of the Civil Rights Act covers private employers as well as public ones, according to Prof. Sheila Foster of Fordham Law School and other attorneys who specialize in labor and employment law.

“This decision will change the landscape of civil rights law,” said Professor Foster, who teaches anti-discrimination Law and has been involved in litigating cases under the Civil Rights Act.

Daniel P. Westman, a Washington-area lawyer who works extensively in labor and employment law, said: “This is a ruling that every business covered by Title VII will need to take into account. Some companies may have thought this was just a public sector firefighter case that would not apply outside the government employment context, but that is not the case.” Mr. Westman said the decision could affect hiring, firing and discipline in the workplace, as well as promotions.

The New Haven case was rooted in tests given in 2003 for promotion to lieutenant and captain. The exams yielded no black firefighters eligible for advancement, prompting the city to throw out the results and promote no one. That move, in turn, triggered a lawsuit by 18 white firefighters, one of them Hispanic, who claimed racial discrimination, or what is often termed “reverse discrimination.”

The ruling reverses a federal district court and the United States Court of Appeals for the Second Circuit, which had found in favor of the city, and sends the case back to the lower courts for further action. (Judge Sonia Sotomayor, President Obama’s nominee for the Supreme Court, had ruled in the city’s favor as a Second Circuit judge.)

The ruling on Monday, written by Justice Anthony M. Kennedy, acknowledged that the city faced a “damned if you do, damned if you don’t” situation, as Justice David H. Souter put it when the case was argued on April 22. That is, if the city had allowed the promotional exam to stand, it would have faced a lawsuit from black firefighters.

But the city’s dilemma did not justify scrapping the exam results, Justice Kennedy wrote, in a conclusion also embraced by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

“Fear of litigation alone cannot justify the city’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” the majority said.

The white firefighters had contended that the city’s action also violated their rights under the Equal Protection Clause of the 14th Amendment. But the court said it did not have to address that allegation once it found against the city under the Civil Rights Act.

Justice Ruth Bader Ginsburg wrote a dissent joined by Justices John Paul Stevens, Stephen G. Breyer and Souter, taking part in his last opinion before he retires from the court. Justice Ginsburg read her dissent from the bench, a clear signal of her deep disagreement with the majority.

“It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities,” she said. Moreover, she said, contrary to the majority’s finding, there was “substantial evidence of multiple flaws in the tests New Haven used.”

“Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow,” Justice Ginsburg observed, alluding to a report by the United States Civil Rights Commission in the early 1970’s finding racial discrimination in municipal employment even “more pervasive than in the private sector.”

The terms “disparate treatment” and “disparate impact” were crucial to the New Haven case. As originally enacted in 1964, Title VII of the Civil Rights Act held employers liable only for disparate treatment on the basis of race, color, religion, sex or national origin.

But in a 1971 case, Griggs v. Duke Power Company, the Supreme Court interpreted Title VII as prohibiting, in some cases, employer practices that were neutral on their face but discriminatory in operation. These “disparate impact” practices are to be prohibited if the employer cannot show that they arise from “business necessity.”

Notwithstanding Justice Souter’s “damned if you do, damned if you don’t” observation when the case was argued, the majority concluded on Monday that the City of New Haven “cannot meet that threshold standard” of showing that it would have been liable to a suit under the “disparate impact” principle.