Ricci v. DeStefano: White Civil Rights?

Ricci v. DeStefano, a case concerning reverse discrimination in the form of a denial of promotions to a group of white firefighters who did disproportionately well on qualifying exams, is the United States Supreme Court’s latest decision and arguably its most important of the year. The decision sought to resolve the conflict between eradicating intentional “disparate-treatment” discrimination and unintentional “disparate-impact” discrimination (the latter form being recognized as “adverse effect” discrimination by the Supreme Court of Canada in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143), where attempting to eradicate disparate-impact discrimination against ethnic minorities may necessitate engaging in the disparate treatment of majority whites. The case was also important for its involvement of recent Supreme Court nominee Sonia Sotomayor, whose summary decision at the 2nd Circuit Court of Appeals was reversed by this Supreme Court decision only five weeks prior to Justice Sotomayor’s eventual August 6 confirmation.


In November and December of 2003 the New Haven (Connecticut) Fire Department administered written and oral examinations to fill vacant lieutenant and captain positions. At a cost of $100,000 to the City, these objective tests had been meticulously developed by an outside firm that specialized in designing entry-level and promotional examinations for fire and police departments. Minority firefighters were deliberately oversampled at every stage of the construction and compilation of the exams, such as ride-along’s and interviews with high-ranking firefighters, in an attempt to ensure that the exams would not be unintentionally biased in favour of white test-takers. Furthermore, two-thirds of the exam assessors pool (30 high-ranking firefighters from outside of Connecticut) was deliberately composed of minorities.

77 candidates completed the lieutenant examination, of which 34 (44%) passed. By race, 25 (58%) of the 43 whites, 6 (32%) of the 19 blacks, and 3 (20%) of the 15 Hispanics passed. 41 candidates completed the captain exam, of which 22 (54%) passed. By race, 16 (64%) of the 25 whites, 3 (38%) of the 8 blacks, and 3 (38%) of the 8 Hispanics passed. The number of vacant lieutenant and captain positions allowed for the 10 highest-scoring lieutenant candidates and the 9 highest-scoring captain candidates to be eligible for immediate promotions. The 10 highest-scoring lieutenant candidates were all white. The 9 highest-scoring captain candidates were 7 whites and 2 Hispanics. Altogether, of the 68 whites, 27 blacks, and 23 Hispanics who completed either the lieutenant or captain examinations, 17 whites and 2 Hispanics achieved eligibility for immediate promotion to those positions.

Based on the statistical disparity of test results, wherein whites greatly outperformed minority candidates, the City expressed concern that the tests had racially discriminated. Vociferous public debate ensued, with the City confronted with arguments both for and against certification of the test results — and threats of a lawsuit either way. The Civil Service Board ultimately voted against certification, throwing out the results of the tests.

19 white firefighters and 1 Hispanic firefighter then sued the City; they alleged discrimination against them based on their race, in violation of the “disparate-treatment” prohibition in Title VII of the Civil Rights Act of 1964, as well as in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The City responded that, by not certifying the test results, it had acted so as to avoid liability for discrimination against the minority candidates based on their race. This, the City argued, would have violated the “disparate-impact” prohibition in Title VII.


Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on “race, colo[u]r, religion, sex, or national origin”. As originally enacted and worded, Title VII held employers liable for intentional employment discrimination, known as “disparate treatment”, on its enumerated grounds. However, in the case of Griggs v. Duke Power Co., 401 U. S. 424 (1971), the United States Supreme Court interpreted the Act to also prohibit “disparate impact” discrimination: employers’ facially neutral practices that produce disproportionate results in terms of Title VII protected grounds, thereby “adversely affecting” such statistical minorities. This form of discrimination is unintentional, therefore lack of intent to “disparately impact” is no defence: statistical disparity alone serves to establish a prima facie case of disparate-impact discrimination.

In the event of a prima facie case of disparate impact discrimination, an employer may make the “business necessity” defence by demonstrating that the impugned practice is “job related for the position in question and consistent with business necessity”, as per the Civil Rights Act of 1991, which formally codified the prohibition against disparate-impact discrimination. Even with that burden met, however, an employee-plaintiff may still prevail by demonstrating that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.

Opinion of the Court

“Swing vote” Justice Anthony Kennedy, writing for the 5-4 majority (comprising of Justice Kennedy along with the conservative bloc of Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito), first found that “[t]he City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defence.” The City’s decision to essentially pull the rug out from under Frank Ricci et al. was intentionally and expressly race-based, done so in attempting to comply with Title VII’s disparate-impact prohibition. Thus, the matter at issue was how to reconcile the prohibitions on disparate-treatment and disparate-impact discrimination: “whether the purpose to avoid disparate-impact liability excuses what would otherwise be prohibited disparate-treatment discrimination.”

The petitioners (Ricci et al.) first proposed that “disparate-treatment” discrimination should trump or negate “disparate-impact” discrimination, such that no such after-the-fact corrective reverse discrimination ever be allowed, and that disparate-impact compliance never be used as a defence. The Court rejected this strict approach.

The petitioners alternatively proposed that compliance be allowed as a defence in a disparate-treatment suit only if an employer is in fact in violation of the disparate-impact prohibition. For their part, the respondents proposed that “an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct.”

Rejecting the petitioners’ standard as still too strict and that of the respondents’ as minimal, Justice Kennedy imported the high “strong basis in evidence” standard of Wygant v. Jackson Board of Education, 476 U.S. 267, 290 (1986):

“We hold … that, under Title VII, 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.” [My underlining.]

This, according to Justice Kennedy, achieves the stated aim of reconciliation:

“Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination.”

Applying this standard, Justice Kennedy found no issue as to the validity and business necessity of the tests, and alternatives thereto. It was thus held that the City had failed to meet this “strong basis in evidence” standard and had discriminated against the white firefighters on the basis of their race in violation of the prohibition against disparate-treatment in Title VII of the Civil Rights Act of 1964.

“… the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. … [T]here is no evidence —let alone the required strong basis in evidence— that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

Justice Alito’s opinion

Of particular interest is Justice Samuel Alito’s concurring opinion (joined by Justices Scalia and Thomas), an almost journalistic account of the grimy, behind-the-scenes goings-on of this matter: Mayor John DeStefano’s need to placate New Haven’s black community, led by a rambunctious, power-brokering Reverend Boise Kimber; Mayor DeStefano’s resolve to use his executive authority to override in the event that the Civil Service Board voted to certify; and how the City publicly pretended to deliberate the matter despite the fact that the decision to scrap the test results for political reasons had already been made by the Mayor and his cohorts.

The account lays waste to the City’s claims of good faith. That such machinations, quite possibly the disconcertingly all-too-common reality behind instances of “disparate impact”, are memorialized in a Supreme Court judgment is marvelous.

Justice Ginsburg’s dissent

While Frank Ricci and company have finally received the promotions they rightfully earned, Ricci v. DeStefano still leaves much to be desired. The case’s dissent, formed by the liberal wing of the Court (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer) and written by Justice Ruth Bader Ginsburg, begins with the ludicrous (“[the petitioners] had no vested right to promotion. Nor have other persons received promotions in preference to them”,) and the shockingly bitter (“[t]he Court’s order and opinion, I anticipate, will not have staying power.” ). This latter parenthesized statement, in particular, demonstrates a disrespect for stare decisis that seems unbecoming of a Justice of the Supreme Court.

What is most frustrating about Justice Ginsburg’s dissent (which espouses a laxer “good cause” standard) is her apparent inability to entertain the fundamental practical contradiction between eliminating “disparate-treatment” discrimination and “disparate-impact” discrimination, contrary to Congress and Title VII’s idealistic intention that the two prohibitions work hand in hand. This contradiction — if not the dubiousness of the notion of disparate-impact discrimination itself — may be represented particularly and parsimoniously in this case by the possibility that these white firefighters studied significantly harder and/or had a significantly greater aptitude than their minority counterparts, a possibility which the majority opinion thankfully allows for; or, it may be represented generally in the uneasy statistical reality voiced by a psychologist with whom the City consulted, that “‘[n]ormally, whites outperform ethnic minorities on the majority of standardized testing procedures'”. This reality still stands for science and academia to grapple with and resolve.

Furthermore, Justice Ginsburg’s statement that “African-Americans and Hispanics account for nearly 60 percent of the population” of New Haven suggests that she judges fairness by outcome. One might wonder whether she is keen to the flip-side of that statistic, that it is really whites who are a minority in the City of New Haven. One also wonders whether she believes that civil rights laws are intended to protect people of all races, or just ethnic minorities.

Also, her mention of the historical corruption and underrepresentation of minorities within the New Haven Fire Department and within public employers in general is not particularly helpful.  Such corruption and underrepresentation is precisely the reason for civil service testing, such as was used here. Yet, ironically, as Justice Alito’s concurring opinion recounts, this proved insufficient. Finally, Ginsburg’s pedantic and obtuse nitpicking in regards to the tests, concluding in her “best” criteria being those that promote more minorities, seems suspect in light of her lack of expertise in psychometrics (in which area the expert witnesses/consultants relied upon by the City were not helpful). This strange exercise indicates, perhaps, her flawed conceptualization of fairness.

The Wise Latina

It is lamentable that such a simple and plainly egregious set of facts did not lead to a 9-0 slam dunk, at least in result. How it came to this — how Ricci v. DeStefano reached the Supreme Court — is an interesting story in itself. Recent Supreme Court nominee Sonia Sotomayor, a jurist fiercely ethnic in outlook and a staunch, lifelong proponent and admitted beneficiary of ethnic preferences, formed part of the suspiciously cursory and unsigned summary order at the 2nd Circuit Court of Appeals.  This order disposed of Ricci et al.‘s appeal and affirmed the District Court’s decision in favour of the City. The case would have tumbled down the memory hole had Sotomayor’s old mentor and fellow 2nd Circuit member Justice Jose Cabranes (a New Havenite himself) not chanced upon an article in his local newspaper covering the dissatisfied reaction of counsel for Ricci et al. to this order, and jumped into action by requesting an en banc rehearing at which he wrote a harsh, rebuking dissent. “How Ricci Almost Disappeared” by Stuart Taylor Jr. of the National Journal tells the full story.

This June 29 decision of the United States Supreme Court overruling Justice Sotomayor’s appellate decision represented a considerable setback to the Obama Administration and its nod to replace retiring Justice David Souter. Justice Sotomayor was nonetheless successfully confirmed. Lead plaintiff Frank Ricci and the one Hispanic member of the lawsuit Ben Vargas (who alleges being beaten up by a black firefighter for taking part in it) testified at Sotomayor’s confirmation hearings. Their testimony is available here and here.

Justice Scalia’s opinion

In the end, Ricci v. DeStefano turns on very narrow legal grounds. The Supreme Court only answered the statutory question regarding Title VII of the Civil Rights Act of 1964.: corrective reverse discrimination is hard to engage in, and so still permissible. The Court expressly refrained, however, from answering the constitutional question. Justice Antonin Scalia’s brief concurring opinion highlighted this shortcoming:

“… this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the [Equal Protection Clause of the Fourteenth Amendment to the United States Constitution]?

The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid ‘remedial’ race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result.” [Italics in original.]

Justice Scalia also touched on the difficulty in conceptualizing disparate-impact discrimination as a wholly unintentional form of discrimination, different from disparate-treatment:

“It might be possible to defend the law by framing it as simply an evidentiary tool used to identify genuine, intentional discrimination—to ‘smoke out,’ as it were, disparate treatment. … But arguably the disparate-impact provisions sweep too broadly to be fairly characterized in such a fashion—since they fail to provide an affirmative defense for good-faith (i.e., nonracially motivated) conduct, or perhaps even for good faith plus hiring standards that are entirely reasonable.”

Justice Scalia concluded:

“… the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.”

In closing

Returning victoriously to the steps of the New Haven Federal Courthouse where the journey to the United States Supreme Court began, Frank Ricci (the dyslexic lead plaintiff, who paid $1000 to buy textbooks and have his neighbour read them onto audiotapes, and who gave up a second job and studied 8 to 13 hours a day in preparation for the test,) beamed: “[i]f you work hard, you can succeed in America.” To Mr. Ricci I ask: Where do you find it within yourself to say that, after all you’ve been through?

Oh well, congratulations.

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