On the last day of its 2008-2009 term, the Supreme Court issued a long-awaited decision in a contentious lawsuit involving a promotional examination in the New Haven, Connecticut Fire Department. While the Court did not go as far as some believed – Justice Antonin Scalia, writing a concurring opinion, lamented that the Court had only postponed the “evil day” when it would be forced to consider the overall legality of affirmative action plans – the Court’s decision most certainly will impose new hurdles for any public agency wishing to maintain an affirmative action program.

In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. New Haven has a civil service system that uses the “rule of three,” under which the Fire Department must fill each vacancy by choosing one candidate from the top three scorers on the list. Certified promotional lists remain valid for two years.

The City’s contract with the New Haven firefighters’ union specifies additional requirements for the promotion process. Under the contract, applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and the oral exam 40 percent of an applicant’s total

The City used Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the promotional examinations. IOS is an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments. After a lengthy test-design process that involved job analyses, interviews and ride-alongs with incumbents, sample testing, and procedures designed to make sure the testing was race-neutral, IOS drafted a 100-question multiple-choice test for each position. As required by the Board’s rules, the test was written below a tenth-grade reading level.

Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination – 43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed – 25 whites, six blacks, and three Hispanics. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top ten candidates were eligible for an immediate promotion to lieutenant. All ten were white. Subsequent vacancies would have allowed at least three black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examination – 25 whites, eight blacks, and eight Hispanics. Of those, 22 candidates passed – 16 whites, three blacks, and three Hispanics. Seven captain positions were vacant at the time of the examination. Under the rule of three, nine candidates were eligible for an immediate promotion to captain – seven whites and two Hispanics.

The promotional examinations were layered against the backdrop of historical racial disparities in the Fire Department. In the early 1970s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 percent of the City’s 502 firefighters. Following a lawsuit and settlement agreement, the City initiated efforts to increase minority representation in the Department. As a result, while nearly 40 percent of the City’s residents today are African-American and more than 20 percent are Hispanic, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, the senior officer ranks (captain and higher) are 9% African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American.

After the test results were released, a “rancorous” public debate ensued, with New Haven’s mayor outspoken in his desire to have the test results discarded. After a series of hearings, the City’s Civil Service Board split 2-2 on whether to certify the test results. The tie vote meant that the results were not certified, and the tests essentially nullified. A lawsuit resulted, filed by 17 white firefighters and one Hispanic firefighter who were denied promotions when the Board refused to certify the test results.

In a 5-4 decision, the Supreme Court found that the City’s decision to scrap the test results violated Title VII of the Civil Rights Act. The Court started with the proposition that “the City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed when compared to white candidates. Without 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.”

The Court then turned to the City’s main justification – its belief that it would be sued by minority firefighters if it certified the test results. The Court turned to an earlier affirmative action case – one involving the equal protection guarantees of the Fourteenth Amendment rather than Title VII – for the test. In the earlier case, a plurality (not a majority) of the Court had recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other, and had commented that those “related constitutional duties are not always harmonious,” and that “reconciling them requires … employers to act with extraordinary care.” The plurality required a “strong basis in evidence” for an affirmative action plan because “evidentiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.”

In the New Haven case, the Court found that the same test should apply under Title VII: “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. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.”

The Court concluded that New Haven’s concerns about potential litigation from minority firefighters failed to meet the “strong basis in evidence” test. The Court observed that “the City could be liable for disparate-impact discrimination only if the examinations were not job-related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. There is no strong basis in evidence to establish that the test was deficient in either of these respects.”

The Court was clearly skeptical of the City’s arguments concerning the adequacy of the tests: “There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are blatantly contradicted by the record. The Board heard statements from Chad Legel (the IOS vice president) as well as city officials outlining the detailed steps IOS took to develop and administer the examinations. IOS devised the written examinations, which were the focus of the Board’s inquiry, after painstaking analyses of the captain and lieutenant positions – analyses in which IOS made sure that minorities were overrepresented. And IOS drew the questions from source material approved by the Department. Of the outside witnesses who appeared before the Board, only one, Vincent Lewis, had reviewed the examinations in any detail, and he was the only one with any firefighting experience. Lewis stated that the ‘questions were relevant for both exams.’ The only other witness who had seen any part of the examinations, Christopher Hornick (a competitor of IOS’s), criticized the fact that no one within the Department had reviewed the tests – a condition imposed by the City to protect the integrity of the exams in light of past alleged security breaches. But Hornick stated that the exams ‘appea[r] to be … reasonably good’ and recommended that the Board certify the results.

“The City, moreover, turned a blind eye to evidence that supported the exams’ validity. Although the City’s contract with IOS contemplated that IOS would prepare a technical report consistent with EEOC guidelines for examination-validity studies, the City made no request for its report. After the January 2004 meeting between IOS and some of the city-official respondents, in which IOS defended the examinations, the City sought no further information from IOS, save its appearance at a Board meeting to explain how it developed and administered the examinations.”

The Court was also unimpressed by the City’s argument that an equally valid, less-discriminatory testing alternative existed to the tests. The City argued first that a different composite-score calculation – weighting the written and oral examination scores 30/70 – would have allowed the City to consider two black candidates for then-open lieutenant positions and one black candidate for then-open captain positions. The Court noted, however, that the 60/40 “formula was the result of a union-negotiated collective bargaining agreement, we presume the parties negotiated that weighting for a rational reason. Nor does the record contain any evidence that the 30/70 weighting would be an equally valid way to determine whether candidates possess the proper mix of job knowledge and situational skills to earn promotions. Changing the weighting formula, moreover, could well have violated Title VII’s prohibition of altering test scores on the basis of race.”

The City also argued that it could have adopted a different interpretation of the “rule of three,” an interpretation that would have allowed it to “band” scores by rounding scores to the nearest whole number – that would have produced less discriminatory results. The problem, the Court found, was that “a state court has interpreted the charter to prohibit banding. A state court’s prohibition of banding, as a matter of municipal law under the charter, may not eliminate banding as a valid alternative under Title VII. We need not resolve that point, however. Here, banding was not a valid alternative for this reason: Had the City reviewed the exam results and then adopted banding to make the minority test scores appear higher, it would have violated Title VII’s prohibition of adjusting test results on the basis of race. As a matter of law, banding was not an alternative available to the City when it was considering whether to certify the examination results.”

The Court also was careful to note that it was not deciding the ultimate question many had anticipated the New Haven case would address – whether affirmative action measures taken to comply with Title VII would still violate the Equal Protection Clause of the Fourteenth Amendment: “Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.”

The New Haven case produced four opinions. The majority decision, written by Justice Anthony Kennedy, was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas. Justice Scalia wrote separately, strongly suggesting that he would find that any affirmative action measures based on race – even those measures taken to comply with Title VII, would violate the Fourteenth Amendment. Justice Alito also wrote separately, focusing on evidence he believed shows that “City officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [a prominent African-American minister] and other influential leaders of New Haven’s African-American community.”

Justice Ruth Bader Ginsburg wrote a dissenting opinion, joined by Justices Stephen Breyer, David Souter and John Paul Stevens. Not subtly looking towards the possibility that the Court’s composition might change in the future, Justice Ginsburg predicted: “The Court’s order and opinion, I anticipate, will not have staying power.”

Ricci v. DeStefano, 2009 WL 1835138 (2009).

Note: The New Haven decision may well bring to an abrupt halt any affirmative action hiring or promotion plans that allow an employer to take race into account. The logical application of the decision would require an employer to have a “strong basis in evidence” that its own testing programs were not job-related and consistent with business necessity in order, evidence presumably in place when the affirmative action plan was implemented. This leads to the logical question as to why the employer would ever have such tests to begin with.

This article appears in the July 2009 issue