To end its term, the Supreme Court today issued its long awaited opinion in Ricci v. DeStefano–a case that has received extra media attention because Supreme Court nominee Sonia Sotomayor was on the Second Circuit Court of Appeals panel that decided the case below. The conservative justices on the Court  reversed the Second Circuit (and by extension, Judge Sotomayor) in a 5-4 decision, ruling that the city of New Haven violated Title VII by discarding the results of a firefighter promotion test where white applicants fared disproportionately better than other applicants.  As one might expect, Justice Kennedy provided the swing vote and authored the majority opinion.

New Haven used the test in question to identify firefighters best qualified for promotion.  Despite being objectively administered, the test’s racially disproportionate results led the city to question whether it should validate the results.  The city, of course, found itself in a "damned if you do, damned if you don’t" position:  certify the test results, and face Title VII disparate impact litigation from minority applicants; fail to certify them, and face Title VII reverse discrimination litigation from the white officers who passed but were denied a promotion.  The city opted for the latter course, and, as expected, the white firefighters filed a reverse discrimination lawsuit.  The city prevailed on summary judgment at the district court level, and the Second Circuit affirmed.

The Supreme Court found that discarding the tests violated Title VII , while certifying the test would not have been a violation of law because there was no "strong basis in evidence" for believing that the black firefighters would prevail on a disparate impact claim.  The court noted that despite what otherwise would have constituted a "prima facie" showing of disparate impact race discrimination, several defenses were available to the city–namely that the exam at issue was job related, consistent with business necessity, and there existed no equally valid, less discriminatory alternative that suited the city’s needs but was not adopted.  The four dissenting justices disagreed, arguing that the majority’s analysis was flawed because "New Haven had ample cause to believe its selection process was flawed and not justified by business necessity."

Ultimately, the Ricci decision will have little to no impact on most employers, but represents a small victory for employers (despite the positioning here that held against the city/employer).  Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists.  The Ricci decision may not last for long, however.  Political condemnation by Democrats has been swift, with Senator Patrick Leahy (D-VT) saying that "it is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law.  This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces."  Don’t be surprised if Congress passes legislation down the road aimed at upending the Ricci decision.