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United States: Divided Supreme Court Addresses Reverse Discrimination Claim

(July 15, 2009) On June 29, 2009, a divided Supreme Court ruled that under Title VII of the Civil Rights Act of 1964, an employer may engage in racially disparate treatment of employees to avoid a racially disparate impact only if there is a “strong basis in evidence” that the disparate impact will subject the employer to liability. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin, and bars employment practices that result in disparate treatment or disparate impact.

In 2003, the City of New Haven, Connecticut, gave a written and oral examination to identify firefighters to fill vacant lieutenant and captain positions. When the results of the examination were found to disproportionately favor white candidates, the city declined to certify the results or use them in promotion decisions. Some white and Hispanic firefighters sued the city under Title VII for its decision not to use the test results. The city responded that had it used the test results for promotions, it would have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The district court granted summary judgment to the city, and the U.S. Court of Appeals for the Second Circuit affirmed. The Supreme Court accepted the case for review.

The Supreme Court held that the city's decision to not use the test results in promotion decisions violated Title VII. Faced with what the majority said were conflicting provisions of Title VII that bar both disparate treatment and disparate impact, it ruled that “before 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.” It said that this “strong-basis-in-evidence” standard resolves these conflicting requirements of Title VII by allowing violations of one in the name of compliance with the other only in narrow circumstances. Applying this new standard, it ruled that New Haven's rejection of the test results violated Title VII. It found that while New Haven would have faced a prima facie claim of disparate impact discrimination had it used the test, under the record of the case as a whole there was no substantial basis in evidence that the test was not consistent with business necessity or that there was a less discriminatory alternative available that the city failed to adopt.

Four Justices dissented, arguing that an employer should be allowed to reject a test that has a disparate impact if it has “good cause to believe” it cannot withstand scrutiny as a business necessity. The dissenters said that the examination at issue in this case was flawed, and that the Court should have remanded the case for further proceedings under the new standard rather than ruling that the plaintiffs are entitled to summary judgment. (Ricci v. DeStefano, No. 07-1428 (June 29, 2009), available at