Damned If You Do and Damned If You Don’t: Title VII and Public Employee Promotion Disparate Treatment and Disparate Impact Litigation
| Date | 01 July 2010 |
| Published date | 01 July 2010 |
| DOI | http://doi.org/10.1111/j.1540-6210.2010.02179.x |
| Author | Robert N. Roberts |
Spotlight on
Key Challenges
Confronting
Twenty-First-
Century Public
Administration
Robert N. Roberts has taught at James
Madison University since 1982, and he has
taught courses on administrative law and
the legal environment of public administra-
tion and human resource management
since the early 1980s. He holds a juris
doctorate and a PhD in public administra-
tion from Syracuse University. His research
has appeared in Public Administration
Review, International Journal of Pub-
lic Administration, Public Integrity, PS:
Political Science and Politics, Politics
and Policy, and the Review of Public
Personnel Administration.
E-mail: robertrn@jmu.edu
582 Public Administration Review • July| August 2010
Robert N. Roberts
James Madison University
Damned If You Do and Damned If You Don’t: Title VII
and Public Employee Promotion Disparate Treatment and
Disparate Impact Litigation
What has been the impact of the U.S. Supreme Court’s
2009 decision in Ricci v. Destefano on the selection and
promotion practices of public employers? Relying solely
on circumstantial evidence, the Supreme Court held that
the Civil Service Board of New Haven, Connecticut, had
engaged in Title VII disparate treatment discrimination
by refusing to certify the results of a promotion
examination that led, in turn, to a disparate impact on
African American fi refi ghters. To limit the discretion
of public employers to disregard such selection and
promotion exam results, the Ricci majority held that a
public employer must “have a strong basis in evidence
to believe it will be subject to disparate-impact liability
if it fails to the take the race-conscious discriminatory
action.” is article argues that the decision eff ectively
prohibits public employers from rejecting the results of
selection and promotion instruments, even though there
is evidence that screening instruments inequitably aff ect
protected groups. It also forces public employers to become
more careful in developing selection and promotion
examinations or face the possibility of costly Title VII
litigation.
On June 29, 2009, by a vote of 5–4, the U.S.
Supreme Court held that the Civil Service
Board (CSB) of New Haven, Connecticut,
violated Title VII of the 1964 Civil Rights Act when it
refused to certify the results of promotion exams taken
by city fi refi ghters (Ricci v. Destefano 2009, 2658).
e fi ve-member CSB took the action after hearing
extensive testimony from supporters and opponents of
certifi cation. With one member abstaining, the CSB
deadlocked 2–2 on the motion to certify the results
of the examination. e CSB needed a majority vote
to certify the results. Because 17 white fi refi ghters and
1 Hispanic fi refi ghter had received the highest scores,
the action blocked their promotions.
e certifi cation dispute erupted because the promo-
tion exams had a disparate impact on African Ameri-
can and Hispanic fi refi ghters who had scored too low
to receive promotions. On the captain exam, “the
pass rate for white candidates was 64 percent but was
37.5 percent for both black and Hispanic candidates.
On the lieutenant exam, the pass rate for white candi-
dates was 58.1 percent; for black candidates, 31.6
percent; and Hispanic candidates, 20 percent” (Ricci
v. Destefano 2009, 2676). Because the pass rates of
minorities were approximately “one-half the pass rates
for white candidates,” the results fell far below the 80
percent disparate impact standard set by the Equal
Employment Opportunity Commission (EEOC)
(Ricci v. Destefano 2009, 2678). Yet the EEOC’s 80
percent disparate impact test did not prevent the
New Haven CSB from certifying the examination
results. However, this fact did increase the likelihood
that New Haven’s African American and Hispanic
fi refi ghters would pursue Title VII disparate impact
lawsuits, arguing that the examinations were not job
related.
In all, 17 white offi cers and 1 Hispanic offi cer brought
suit, arguing that New Haven’s CSB refused to certify
the exam results because only one minority fi refi ghter
had scored high enough to receive a promotion. In
other words, the plaintiff s argued that the race of
the fi refi ghters was the primary reason for the CSB’s
action. e plaintiff s argued that such an action
constituted illegal disparate treatment discrimination
under Title VII and the equal protection clause of
the Fourteenth Amendment (Ricci v. Destefano 2009,
2671). Subsequently, the two members of the CSB
who had voted against certifi cation swore under oath
that their decision had had nothing to do with race of
the applicants, and that the reason the CSB had not
certifi ed the examination results was that there were
multiple fl aws in the tests (Ricci v. Destefano 2009,
2690). During oral arguments in the case, Justice
David Souter maintained that the position taken by
the fi refi ghters placed governments in an impossible
situation. “[E]ssentially the problem I . . . have with
your argument is that it leaves a . . . municipality or a
governmental body like New Haven in a . . . damned
if you do, damned if you don’t situation. Because on
. . . the very assumptions that you are making, if they
go forward with . . . their hiring plan, they certify the
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