Title VII's conflicting "twin pillars" in Ricci v. DeStefano.

• Author: DeAngelo, Kathy

Since 1971, when the Supreme Court created the disparate impact doctrine in Griggs v. Duke Power Co., (1) the judiciary and Congress have disagreed on how to define and apply the doctrine. In Griggs, the Court extended Title VII of the Civil Rights Act of 1964 to prohibit not only disparate treatment of employees but also practices that are "fair in form, but discriminatory in operation." (2) Two years later, the Court further developed the doctrine in McDonnell Douglas Corp. v. Green, (3) where it set out a three-part test for plaintiffs alleging disparate impact. A plaintiff must first show that an employer's specific action resulted in disparate impact. Upon this showing, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." (4) If the employer meets its burden, then the plaintiff has a final opportunity to prevail if he can "show that [the employer's] stated reason for [the employee's] rejection was in fact pretext." (5) After almost two decades under this regime, the Supreme Court denied the disparate impact claims of minority plaintiffs in Watson v. Fort Worth Bank & Trust (6) and Wards Cove Packing Co. v. Atonio, (7) clarifying that "[t]he burden of persuasion [always] remains with the ... plaintiff"; only the burden of production shifts to the employer. (8) Just two years after the Court decided Wards Cove, Congress responded to what it perceived as undue judicial limits on disparate impact doctrine. (9) Amending the Civil Rights Act of 1964, (10) the Civil Rights Act of 1991 (11) expressly elevated the disparate impact doctrine to equal status with disparate treatment. (12)

Last Term, in Ricci v. DeStefano, (13) the Supreme Court constrained the applicability of the disparate impact doctrine to cases of immediate discrimination and attempted to reconcile the disparate impact and disparate treatment doctrines. Although the Court's holding did not go beyond striking a tenuous balance between the two doctrines, the majority's reasoning reflected an ultimate interest in protecting individuals from exclusion from employment opportunities because of race. This interest is in line with the original intent of the Civil Rights Act of 1964 as well as the Fourteenth Amendment's Equal Protection Clause. Unfortunately, although the Court signaled that the independent disparate impact doctrine is incompatible with the Equal Protection Clause, the Court failed to address explicitly the plaintiffs' constitutional claims, thus ensuring that the debate over the disparate impact doctrine will continue in the courts, and perhaps in Congress, until the Supreme Court takes up a more ambiguous case than Ricci.

In 2003, the City of New Haven, Connecticut, hired Industrial/Organizational Solutions, Inc. (IOS)--an independent, out-of-state consulting firm--to develop exams for determining promotions within the City's fire department. (14) While developing the tests for lieutenant and captain positions, the firm made deliberate efforts "to ensure that the results ... would not unintentionally favor white candidates." (15) For example, IOS over-sampled minority firefighters and also organized the candidate evaluation panels to guarantee two minorities would sit on every three-person panel. (16) Despite IOS's efforts, however, a much lower percentage of blacks and Hispanics achieved passing scores than their white counterparts. (17) In response to the exam results, the City conducted a series of hearings before the Civil Service Board (CSB) at which examinees and experts spoke both in favor of and against certification of the exams. (18) During the heated debates, the influential community leader Reverend Boise Kimber threatened the CSB with "political ramification[s]" if the results were certified. (19) On March 18, 2004, the CSB deadlocked in its vote on whether to certify the examinations, resulting in an automatic decision not to certify the results. (20)

Firefighter Frank Ricci--along with sixteen other white candidates and one Hispanic candidate who had passed one of the promotional exams--filed suit against the City in the United States District Court for the District of Connecticut, alleging violations of Title VII and the Equal Protection Clause of the Fourteenth Amendment. (21) The opposing parties subsequently moved for summary judgment. Granting the City's motion for summary judgment and denying the plaintiffs', the district court reasoned that the City's decision to discard the examination results was legitimately grounded in a fear of disparate impact liability if it had certified the exams. (22) The court concluded that black and Hispanic candidates easily could have made a prima facie showing of discrimination by pointing to the failure of the exam pass rates to meet the EEOC's four-fifths guidelines for relative passage rates of different races. (23) Further, the court noted, the City's refusal to certify the results was affirmatively race-neutral because "[t]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants." (24)

On appeal, the Second Circuit issued a summary order affirming the decision below, then later vacated the order and issued in its place an identical per curiam opinion. (25) The six-sentence opinion affirmed "for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below." (26) Notably, the court determined that the City's decision not to certify the results was rooted in a desire to comply with Title VII and was therefore protected. (27)

The Supreme Court reversed. Writing for a majority of five, (28) Justice Kennedy first discussed the intentional steps IOS took in developing the examinations to ensure that they were unbiased. (29) The Court further found that the failure to certify the exams was explicitly based on race, particularly the racial imbalance in the passage rates, and as such, "[w]ithout some other justification, this express, race-based decisionmaking violates Title VII's command that employers cannot take adverse employment actions because of an individual's race." (30) The Court developed a standard, balancing the conflicting doctrines of disparate impact and disparate treatment, intended to comport with Title VII's intent to remove race-based barriers to opportunity: (31)

[U]nder 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. (32) The Court held that the City's decision not to certify the exam results violated Title VII of the Civil Rights Act under this standard because there was no strong basis in evidence that the City would have been liable under disparate impact theory. (33) Able to reach its conclusion without extending the inquiry beyond Title VII, the Court declined to address the plaintiffs' Equal Protection claim. (34)

Justice Scalia filed a concurring opinion in which he predicted that the majority's refusal to address the Equal Protection Clause "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 Constitution's guarantee of equal protection?" (35) Justice Scalia opined that perhaps the doctrine could be compatible with the Equal Protection clause if used only to help "smoke out" the more sinister and hard to prove disparate treatment, but that the City's conduct in the present case constituted intentional discrimination, "just one step up the chain." (36) Justice Scalia noted his particular agreement with the majority's finding that the City's decision making was "discriminatory." (37)

Justice Alito (38) also filed a concurring opinion. He described two questions the Court had to address regarding alleged disparate treatment: whether the reason the City gave for its decision was legitimate under the statute, and whether that was in fact the reason the City engaged in the action that it did. (39) Justice Alito noted that because the majority had held that the City's action was unjustified regardless of whether it had acted out of a bona fide desire to avoid disparate impact liability, the Court had no need to address the City's subjective intent. (40) Justice Alito nevertheless closely examined the CSB's deliberation process, ultimately determining that "a reasonable jury could...