An Analysis of the U.S. Supreme Court’s Decision in Ricci v. DeStefano
| DOI | 10.1177/0091026013484574 |
| Author | Charles E. Mitchell |
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| Subject Matter | Articles |
research-article2013
Article
Public Personnel Management
42(1) 41 –54
An Analysis of the U.S.
© The Author(s) 2013
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DOI: 10.1177/0091026013484574
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Ricci v. DeStefano: The New
Haven Firefighter’s Case
Charles E. Mitchell1
Abstract
Almost 6 months after winning their U.S. Supreme Court case, a group of New Haven,
Connecticut, firefighters celebrated their victory in grand style. The decision in Ricci
v. DeStefano proved that the City of New Haven erred when it denied promotions to
White firefighters who fared better on promotional examinations than did minority
applicants. This article (a) examines the thrust of the Ricci decision, which involved
two competing facets of the same equal employment opportunity (EEO) statute;
(b) discusses the mistakes inherent in the testing procedures of the City of New
Haven, Connecticut; (c) addresses the involvement of Justice Sonya Sotomayor
in the decision; and (d) examines the implication of the decision for public-sector
employers using testing procedures of the nature found in Ricci v. DeStefano. The
author concludes that the decision underscores the need for use of alternative testing
procedures and suggests that Ricci v. DeStefano is but a precursor to further litigation
designed to render use of disparate-impact analysis unconstitutional.
Keywords
Title VII, employment testing, adverse impact, disparate treatment
On December 10, 2009, amid blaring bagpipes and a cheering crowd, a group of pre-
dominantly White firefighters in the City of New Haven, Connecticut, finally received
promotional badges after a 5-year legal battle that ended with a U.S. Supreme Court
victory (Christoffersen, 2009). This promotional celebration was the culmination of
one of the more widely publicized rulings of the 2008 Supreme Court term. Of interest
1Troy University-Atlanta
Corresponding Author:
Charles E. Mitchell, 4746 Riverwalk Trail, S. W., Lilburn, GA 30047, USA.
Email: Cmitchell19705@Troy.edu
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Public Personnel Management 42(1)
to many in this ruling, the Court overturned a lower court’s decision in which its soon-
to-be newest member, Judge Sonya Sotomayor, had been a participant. Despite efforts
to use this decision to discredit her, Judge Sotomayor’s confirmation process was a
success.
Some legal experts have argued that the Ricci v. DeStefano decision will change the
landscape of employment law as we know it. This, however, is an often-stated claim
in the politically sensitive area of discrimination law. For example (and although not
an employment case), Board of Regents v. Bakke (1978) was perceived by many as
signaling an end to affirmative action initiatives, including those employment related.
Despite such predictions, the debate over, and use of affirmative action initiatives
persist. It is from this perspective that this article will examine, among other things,
the implications of Ricci v. DeStefano for applicant testing and the employment-
selection process.
The plaintiffs in this case alleged a statutory claim of disparate treatment under
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, and a constitutional
claim under the Equal Protection Clause of the Fourteenth Amendment. Title VII pro-
hibits employment discrimination on the basis of race, color, religion, sex, or national
origin. There were 20 White plaintiffs in this case of which one is also Hispanic.
Scope of the Case
The central issue in this case involved what the court viewed as a conflict between two
provisions of Title VII of the Civil Rights Act of 1964, as amended, namely, disparate-
treatment discrimination and disparate-impact discrimination. Under Title VII, illegal
discrimination against an individual in an employment setting, on the basis of a spe-
cific trait such as their race, sex, color, religion, or national origin, constitutes disparate-
treatment discrimination. Title VII also prohibits unintentional discrimination in a
promotional test that has the unintentional impact of eliminating a disproportionate
number of minorities. This latter form of discrimination is termed disparate-impact or
adverse-impact discrimination, and the two will be used interchangeably in this essay.
The Ricci v. DeStefano case had its origins in late 2003, when the City of New
Haven (City) administered a written multiple-choice test to ascertain which of its fire-
fighters were eligible for promotion to lieutenant and captain. Although efforts were
made to ensure the exam was fair and job related, the exam led to significant adverse
impact on minority applicants. The City’s 2003 exam scores revealed that none of its
Black applicants would be eligible for promotion.
After much consternation over the exam results, including a public debate that
turned “rancorous” (Ricci v. DeStefano, 2009), New Haven officials decided not to
certify their firefighter’s promotional exam because, in their opinion, there was a like-
lihood that minority firefighters (Black) would file lawsuits claiming disparate-impact
discrimination. However, by following this course of action, the City gave plaintiffs
reason to believe they were denied promotions for no reason other than their race.
Plaintiffs contended that the actions of the City were a violation of Title VII, as well as
the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
Mitchell
43
Plaintiffs were unsuccessful at the district court level as well as before the U.S. Court
of Appeals for the Second Circuit. Plaintiffs appealed to the U.S. Supreme Court, and
the case was granted certiorari.
The Supreme Court framed the question before them as “whether the purpose to
avoid disparate-impact liability excuses what otherwise would be prohibited dispa-
rate-treatment discrimination” (Ricci v. DeStefano, 2009). That is to say, by not pro-
moting the more successful White employees, was this an act of illegal disparate
treatment under Title VII? The Supreme Court ruled that, indeed, it was illegal dispa-
rate treatment.
The following analysis examines the substance of the Supreme Court decision, as
well as Justice Sonia Sotomayor’s involvement in the lower court decision, and pro-
vides comments on the implications of the Supreme Court’s ruling in Ricci v.
DeStefano.
Historical Overview
Testing and the Concept of Disparate or Adverse Impact
As the Supreme Court noted in Ricci v. DeStefano, the Civil Rights Act of 1964 did not
include a prohibition on policies or practices that produce a disparate impact. It was in
the decision of Griggs v. Duke Power Company (1971) that the Supreme Court inter-
preted the Act to prohibit, in some cases, an employer’s facially neutral practices that
are discriminatory in effect. In Griggs, the employer had a long history of denying its
Black employees equal employment opportunities. With the passage of Title VII, the
employer was legally mandated to provide Black employees the same opportunities as
White employees. However, when its Black employees attempted to transfer into pre-
viously denied higher paying jobs, Duke Power imposed a policy requiring a high
school education and a minimum score on two separate aptitude tests.
Willie Griggs filed a class action lawsuit against Duke Power Company on behalf
of several fellow African American employees. The lawsuit progressed all the way to
the Supreme Court, which declared that the new requirements mandated at Duke
Power had the intended purpose of safeguarding Duke Power’s long-standing policy
of giving preference to its White employees. Moreover, the Court noted that neither
the high school graduation requirement nor the two aptitude tests were “shown to bear
a demonstrable relationship to successful performance of the jobs for which it was
used” (Griggs v. Duke Power Co., 1971, p. 431). The policy was merely part of a
scheme to ensure the continuing effect of past discriminatory practices.
Subsequent Supreme Court decisions would produce legal dicta involving testing
issues. Albemarle Paper Company v. Moody (1975), for example, established legal
dicta that states that even when an employer can show that its practice was job related,
the plaintiff could prevail by showing a legitimate alternative that would result in less
discrimination; that is, if the plaintiff could show “that other tests or selection devices,
without a similarly undesirable racial effect, would also serve the employer’s legiti-
mate interest” (Albemarle Paper Company v. Moody, 1975).
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Public Personnel Management 42(1)
The Civil Rights Act of 1991 codified the decision in Griggs. Thus, the Act con-
tains both a disparate-treatment provision as well as a...
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