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Every now and then, the U.S. Supreme Court takes on an affirmative action case, and liberal and conservative commentators then try to outdo each other in predicting chaos if one view or the other prevails. That was the scene at the end of the 2008-2009 Term when the U.S. Supreme Court handed down its 5 to 4 decision in Ricci v. City of New Haven, overturning the lower courts’ rulings in favor of the City which had rejected the results of a promotional assessment test because of an adverse impact on African-Americans.

But the result in Ricci was unsurprising, given the present composition of the Supreme Court. And the basic affirmative action principles affecting employers, under which we have operated for years, were not disturbed by the outcome.

The City of New Haven had administered a professionally developed work-related test to assess the promotability of its firefighters to the ranks of lieutenant and captain. While the record did not reflect that the test had been formally validated by an expert, there is little doubt that it could have been. The City’s charter provided that those candidates with the top three scores would be eligible for promotion during the coming two years. While a number of African-American aspirants passed the test, a disproportionately greater number of Caucasians and Hispanics did, and no African-Americans achieved a high enough score to be considered for promotion.

The City’s legal counsel argued immediately that the City should reject the test results because, as he put it, they would establish a “serious claim of racial discrimination by African-American test-takers.” After considerable public debate, which appeared to occur against a backdrop of significant outside political pressure to disregard the test results, the City voted to not certify the results. The Caucasian and Hispanic candidates who would have been promoted then sued, arguing that they had been denied promotions because of their race.

The narrow question presented to the Supreme Court was the degree of risk (that adherence to the test results would violate Title VII) that would be required before the test results could be abandoned. The Supreme Court majority considered the two positions advanced by the parties: (1) that the City must in fact be in violation of Title VII before it can reject the test results (as argued by the successful test-takers), or (2) that it must merely have a good faith belief to that effect (as argued by the City).

The five-Justice majority chose a middle ground, requiring instead a “strong basis in evidence” that adhering to the test results would violate Title VII before a race-based decision to reject the test results could be made. A mere statistical imbalance in one instance — though establishing a prima facie case of disparate impact discrimination — did not meet that legal standard in the majority’s view. After all, if the test was job-related and consistent with business necessity (as was the case here), no liability would have been imposed on the City — unless the unsuccessful testtakers could point to an equally valid but less impacting alternative. Because the City had not attempted to validate (or invalidate) the test, and there was no showing of a less impacting alternative to the test, no “strong basis in evidence” existed to justify the City’s rejection of the test results.

The four dissenting Justices would have required only “good cause” for the City to reject the test results, which it found existed once a disparate impact was shown statistically. The dissent would have required the high-scoring test-takers — the ones actually harmed by a race-based decision (the City’s decision to disregard their test results) — to establish that Title VII was violated when the City acted as it did. This presumably would have required validating the test and disproving the availability of viable alternatives. But even the dissenting Justices appeared to agree that the trial court should not have granted summary judgment in favor of the City.

The case does demonstrate the conundrum an employer can face when it utilizes seemingly neutral job-related factors to make an employment decision, but then considers ignoring them because it fears an adverse impact claim once the statistical picture emerges. Even if it is acting in good faith, regardless of which choice the employer makes, the outcome is by no means certain. An employer must now defend against either claim (be it discrimination or reverse discrimination) by showing that it has a “strong basis in evidence” that taking the opposite course would have violated the law. Legal counsel’s reasoned opinion (something the City of New Haven did not obtain), based on a complete analysis of the two competing claims, should generally suffice.

Thomas G. Kienbaum

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