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High Court to Consider Racial Disparity in City's Promotion Test
The National Law Journal points out that although the case, Ricci v. DeStefano , nos. 07-1428 and 08-328, involves a public employer — the city of New Haven, Connecticut — 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.
According to the news report, the challenge stems
from 2003 exams administered by the city to determine the
promotions of eligible firefighters to the ranks of
lieutenant and captain. When the results came back, city
officials found 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 disparity in the test results, the
city’s Civil Service Board held five days of public
hearings on whether to certify any list of eligible
candidates, which resulted in a split vote that left the
results uncertified. No promotions went forward, and
shortly afterward, a group of high-scoring firefighters
sued the city.
The question before the Supreme Court, by Frank Ricci and
other firefighters among the top test-scorers, is
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. The city argues
that to have gone forward with the test results would
have put it in violation of Title VII’s ban on
disparate impact discrimination and in jeopardy of a
lawsuit by black firefighters.
Ilya Shapiro of the libertarian Cato Institute, who filed
an friend of the court brief supporting Ricci, contended
that if the test is race-neutral “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,” according to the Law Journal. He argued
that: “If the test yields a disparity among racial
groups, the problem isn’t with the employer but with
why aren’t there qualified applicants? 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.”
On the other hand, John Payton, president and
director-counsel of the NAACP Legal Defense and
Educational Fund Inc., in a friend of the court brief
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.”
Karen Lee Torre of New Haven's Law Offices of Norman A. Pattis, who is representing Ricci in the case before the U.S. Supreme Court, argues that the city of New Haven took steps to ensure that the exam questions were job related and that the promotion process overall was race neutral. She is seeking reversal of a summary judgment by a federal district court.
According to the National Law Journal, Torre
contends that the city's refusal to promote Ricci and
his colleagues 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.
Torre argued the city's 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."
Attorney Christopher J. Meade, who is representing the city, says the "case does not involve racial classifications but rather race-neutral action — the noncertification applied to all candidates of all races." Meade added that 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.
Attorneys commenting on the case told the National Law Journal that the arguments in the case pit the disparate impact section of Title VII against the discrimination section, and make it seem employers cannot win no matter what they do.
But Cato's Shapiro said, "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."