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'Strong Basis In Evidence' ? Supreme Court Establishes New Standard For Discard Of Administered Promotional Examinations Part 2

By Brian Harris

In Ricci, the U.S. Supreme Court similarly rejected New Haven?s argument that its ?good faith? belief in disparate impact liability should be sufficient to justify its disparate treatment of the white firefighters. The court noted that this approach would ?encourage race-based action at the slightest hint of disparate impact.? A standard that low would amount to a de facto quota system focusing on the statistical results only, and would allow an employer to re-test until it reached the racial balance it wanted, in violation of Title VII?s ban on outright racial balancing.

Therefore, the court turned to what the appropriate standard would be, looking to its previous decisions in similar cases, albeit in the Equal Protection Clause context. The court noted that, in those cases, government actions intended to remedy past racial discrimination, even if truly remedial in nature, are only constitutional when there is a ?strong basis in evidence? that such actions are necessary. The court held that the use of this standard in Title VII cases is appropriate because it will allow both the disparate impact and disparate treatment provisions to retain their effect, and would ensure that allowing violations of one of those provisions in the name of compliance with the other will only occur in very rare circumstances.

The court held that, to present sufficient evidence of a threat of disparate impact liability, the city would need to show that there was a strong basis in evidence to believe a potential plaintiff could show that the exams were not job-related and consistent with business necessity, or that there was a less discriminatory alternative to the test that the city refused to adopt. Based on the record of the city?s public hearings, the court held that there was not a strong basis in evidence that either deficiency existed. Holding that ?fear of litigation alone cannot justify an employer?s reliance on race to the detriment of individuals who pass the examinations and qualify for promotions,? the court held the city?s actions violated Title VII.

Justice Ginsburg dissented, joined by Justices Stevens, Breyer and Souter. The dissent took issue with the very basis of the majority opinion ? that is, that when an employer changes an employment practice in an effort to comply with Title VII?s disparate impact provisions it acts ?because of race? in violation of Title VII. The dissent noted that the court held in previous disparate impact precedent that an employer can maintain particular employment criteria that operate to the disadvantage of minorities only if the practice is justified by business necessity. Therefore, if an employer rejects such criteria because of reasonable doubts about its reliability, the employer can hardly be held to have engaged in discrimination ?because of race,? since clearly the employer acted to comply with Congress?s mandate, via Title VII, regarding disparate impact. The dissenting justices would have held that if an employer has ?good cause? to believe that a particular selection device will not withstand scrutiny for business necessity, it cannot be held to have engaged in disparate treatment against the majority when it discards the device upon recognizing its disproportionate racial impact.

The dissent?s argument about the majority holding is compelling. Ginsburg essentially argues that the majority opinion is based on a flawed perception that the city only looked at one factor in making the decision to scrap the test results ? the race of the candidates. However, the city looked at a much broader set of criteria in reaching that decision, according to the dissent ? including the lengthy history of discrimination against African-Americans and other minorities seeking promotion within fire departments. Therefore, it is too simplistic ? and perhaps too easy ? to attribute the city?s decision to having been made ?because of race.?

Further, while the majority holding clearly makes new law on how such promotional tests will be interpreted in the future, it leaves a glaring hole ? it does not set forth a standard for when an employer can be confident that it has the requisite ?strong basis in evidence? that its test is likely to result in a disparate impact claim to justify scuttling the results of an administered test that the employer has selected and advocated as the means of promotion. As the dissent notes, since that standard is drawn from ?inapposite? Equal Protection Clause precedents that dealt with intentional acts by employers, we are left with an ?enigmatic? standard that is not readily applicable in the unintentional, disparate impact context.

In light of the murkiness of some of the majority?s reasoning, the salient points raised by the dissent, and the likelihood of future litigation to fill in the holes, it is likely that this decision will be revisited.

Ryan J. Fleming, a member of Stradley Ronon Stevens & Young's employment and labor practice group, focuses on employment litigation including discrimination and wrongful discharge claims and counsels employers on a variety of employment-related issues.

Blog postings are not legal advice and do not create an attorney-client relationship. Materials posted here represent the views of the poster or commenter and not the views of Stradley Ronon or its clients.

Ryan J. Fleming
Stradley Ronon Stevens & Young, LLP 
www.stradley.com

Full post as published by The Legal Intelligencer Blog on August 12, 2009 (boomark / email).