Title VII and Disparate-Treatment Discrimination Versus Disparate-Impact Discrimination

• DOI: 10.1177/0734371X09349442
• Published date: 01 December 2009
• Author: Shelly L. Peffer
• Date: 01 December 2009
• Subject Matter: Articles

Review of Public Personnel
Legal Brief
Administration
Volume 29 Number 4
December 2009 402-410
© 2009 Sage Publications
Title VII and Disparate-
10.1177/0734371X09349442
http://roppa.sagepub.com
Treatment Discrimination
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Versus Disparate-Impact
Discrimination
The Supreme Court’s Decision in Ricci v. DeStefano
Shelly L. Peffer
Long Island University
In June 2009, the Supreme Court decided the employment discrimination case of Ricci
v. DeStefano. In a 5-4 decision, the Court held that the City of New Haven, Connecticut,
discriminated against White and Hispanic firefighters based on their race in violation of
Title VII of the Civil Rights act of 1964, when it refused to certify exam results that
could have resulted in promotions for the firefighters. The case attempted to clarify what
the Court saw as a conflict between two provisions of Title VII of the Civil Rights act—
disparate-treatment discrimination and disparate-impact discrimination. Unfortunately,
the Court’s decision and reasoning may cause even more confusion and questions in the
area of employment discrimination leaving both public and private employers to ask
themselves difficult questions regarding their employment practices and procedure.
Keywords: discrimination; disparate impact; disparate treatment; equal protection;
Title VII of the Civil Rights Act
In June 2009, the Supreme Court decided the employment discrimination case of
Ricci v. DeStefano. In a 5-4 decision, the Court held that the City of New Haven,
Connecticut, discriminated against White and Hispanic firefighters based on their
race in violation of Title VII of the Civil Rights act of 1964, when it refused to certify
exam results that could have resulted in promotions for the firefighters. The Court
seemingly set at odds the joint provisions of Title VII—disparate-treatment discrimi-
nation and disparate-impact discrimination. The Court held that under Title VII, before
an employer could 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 that it would be subject to disparate-impact liabil-
ity if it fails to take the race-conscious, discriminatory action. The decision may have
the unfortunate consequence that employers are left with little guidance on how to
avoid discrimination under Title VII and instead must choose between being sued for
disparate-treatment discrimination or disparate-impact discrimination. The implications
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Peffer / Disparate-Treatment Versus Disparate-Impact Discrimination 403
of this decision could be quite costly and chilling for both public and private sector
employers and for diversity in the workplace.
The Ricci Case
In 2003, the City of New Haven undertook the task of filling vacant lieutenant and
captain positions in its fire department by administering both oral and written exami-
nations to candidates in accordance with the city charter established merit system and
other state and federal laws. The City had contracted with an outside firm to develop
and administer the tests. The firm conducted a job performance analysis that con-
sisted of, among other things, interviews with incumbent lieutenants and captains,
ride-alongs, and direct participation, to identify the tasks, knowledge, skills, and
abilities essential for these positions. The firm further developed job-analysis ques-
tionnaires and administered them to most of the incumbent chiefs, lieutenants, and
captains in the department. at every stage of the job analysis, the firm oversampled
minority firefighters to ensure that the results would not unintentionally favor white
candidates.
With the job analysis complete, the firm developed a written examination to mea-
sure the candidates’ job-related knowledge. The firm compiled a list of training
manuals, department procedures, and other materials to use as source materials for
the test and presented the proposed source materials to the New Haven fire chief and
assistant chief for their approval. Once approval of source material was agreed on, the
firm created a 100-question multiple-choice test for each position. Candidates were
given a list of source materials for the questions and a 3-month study period prior to
the exams being administered.
an oral examination was developed as well, which concentrated on job skills and
abilities. These questions consisted of hypothetical situations to test incident-command
skills, firefighting tactics, interpretation skills, leadership, and management ability.
Chiefs and assistant chiefs from cities similar in size were trained as assessors of the
oral exams. Three assessors were on each panel, and each panel consisted of one
White assessor, one Black assessor, and one Hispanic assessor. Under a collective bar-
gaining agreement, the written exam counted 60% and the oral exam 40% of a
candidate’s total score.
Candidates took the exams in November and December 2003. The results for the
lieutenant exam showed that out of 43 Whites who took the test 25 passed (58.1%),
out of 19 Blacks 6 passed (31.6%), and out of the 15 Hispanics who took the test 3
passed (31.6%). Results for the captain’s exam...