Supreme Court Weighs Employer Flexibility on Hiring Tests

By Staff Report

Apr. 22, 2009

Determining how much flexibility employers have to ignore hiring tests that exclude a disproportionate amount of minorities sparked a lively Supreme Court session.

In an oral argument that ran unusually long—about an hour and a half—the justices on Wednesday, April 22, parsed a case involving a decision by the city of New Haven, Connecticut, in 2003 to throw out the results of an exam that assessed firefighters for promotion to lieutenant and captain.

The New Haven Civil Service Board voted not to certify the test because 14 of the top 15 candidates were white, based on scores. The city said the test was unfair to minorities and risked putting it in violation of federal civil rights laws if no minority firefighter was elevated to a higher rank.

No promotions were approved.

That decision prompted one Hispanic and 19 white firefighters to file suit against the city, asserting that the city’s refusal to accept the test results violated their rights.

A district court dismissed the case because scuttling the exam affected everyone equally and the plaintiffs did not prove that the city committed intentional discrimination. The New York-based 2nd Circuit Court of Appeals upheld the dismissal.

Now the Supreme Court must weigh whether an employer can try to avoid a potential lawsuit over adverse impact by acting in a way that other employees allege is discriminatory toward them.

Employers are put in a bind, Justice David Souter said. If they accept a test, they are setting themselves up for a disparate impact suit. If they throw out a test, they are vulnerable to a disparate treatment suit.

“Whatever Congress wanted to attain, it couldn’t have wanted to attain that kind of a situation,” Souter said.

Justice Ruth Bader Ginsburg suggested that the multiple-choice New Haven exam may not have been designed to demonstrate who would succeed in fire department leadership positions.

But Gregory Coleman, the attorney representing Frank Ricci and the other New Haven firefighters in the suit, said the city didn’t determine that the test was flawed, only that it produced the wrong racial outcome.

“This decision is grounded in race,” Coleman said.

The court may decide to what extent a municipality, or any employer, can take steps to ensure a diverse workforce and at what point a test result can be declared discriminatory.

Justice Antonin Scalia pointed out that the disparate impact and disparate treatment clauses of the Title VII federal discrimination law can be at cross purposes.

“They become at war with one another when you say that all that is necessary to permit intentional discrimination is the employer’s good-faith belief that if he didn’t intentionally discriminate, he’d be caught in a situation of disparate impact,” Scalia said.

The attorney representing the city of New Haven argued that employers must have the latitude to remove equal opportunity barriers.

“When an employer learns that a practice has a severe adverse impact such that it creates an inference of discrimination, and evidence further supports that inference, the employer should be granted some limited degree of flexibility to act,” said Christopher Meade.

But doing so can leave another group of employees feeling as if that action prevents them from advancing.
Chief Justice John Roberts Jr. crystallized a key question facing the court: “How do you draw the line between race-conscious, which is permitted, and racial discrimination, which is not?”

Diversifying a city’s fire department is a sound employment practice, according to Marc Morial, president of the Urban League and former mayor of New Orleans.

“What is at stake … for municipal governments is to have the ability to have fire departments and police departments that look like the citizens they serve,” Morial said at a press conference outside the Supreme Court building following the oral argument.

Ricci and 17 colleagues who filed the suit also were present on the rain-soaked marble steps. They said they want to get the promotions that they deserve.

“If you work hard and you study and you apply yourself on the job, in America you can succeed,” Ricci said.

—Mark Schoeff Jr.

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