Disparate Impact Versus Disparate Treatment

Pursuant to a collective bargaining agreement between the city of New Haven, Connecticut, and the New Haven Firefighters Union, promotions to captain and lieutenant were to be based on exams. After an extensive background investigation, the exams were created by an outside company. Under the city’s civil service rules, each opening for promotion was to be awarded to one of the top three scoring candidates.

Of the applicants who took the captain and lieutenant exams, no black applicants were eligible for promotion. Before the exam results could be used for promotion, the civil service board had to certify them. The city discouraged the board from certifying because doing so would “create a situation in which African Americans are excluded from promotional opportunity” and a “disparate impact” resulted. The board did not certify.

Several white firefighters and one Hispanic firefighter who took the exam filed suit in district court in Connecticut under Title VII of the Civil Rights Act of 1964, asserting that rejecting the results solely because the city wanted more minorities to qualify for promotion was discriminatory against non-blacks. The court found for the city, holding that the test results were presumptively discriminatory based on their disparate impact on the passage rate. The court of appeals affirmed.

The U.S. Supreme Court reversed in a 5-4 decision. The justices held that the city’s decision that “too many whites and not enough minorities would be promoted” was an express race-based decision that otherwise violates Title VII and that a simple good-faith concern over disparate impact liability is not a sufficient defense. Once a race-neutral process has been established by an employer and it makes clear its selection criteria, it can’t invalidate the results. Ricci v. DeStefano, 557 U.S.__ (2009).

Impact: Employers are advised that once a selection system is in place, it should be followed in the absence of evidence that the process violates the disparate-impact provisions of Title VII. Employers should consider adopting a fair system for awarding promotions, ensure the process is job-related and defensible, and evaluate alternative methods based on appropriateness and the impact on protected groups.