Ricci Don’t Use That Number

New Haven Fire Department

Yesterday’s 5-4 Supreme Court decision in Ricci v. DeStefano predictably resulted in lots of bloviating by gasbags who didn’t let complete ignorance of the court’s holding get in the way of releasing tons of heated air into the atmosphere. Having actually read the 93 page decision I am happy to inform you that it is neither the end of Affirmative Action nor a repudiation of Sonia Sotomayor.

First of all a little background:

Title VII of the Civil Rights Act of 1964, 42 U. S. C.§2000e et seq., as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”).

When originally enacted Title VII only prohibited intentional discrimination in employment. A subsequent SCOTUS decision and later an amendment added employment practices that while neutral on their face had the effect of discrimination. An example of this would be a requirement that police officers be at least 5 ft 10 inches in height, because such a requirement would tend to discriminate against women and Asians because most of them could not meet that requirement.

An employer can still use “disparate impact” practices if the practice has “a manifest relationship to the employment in question” and there was no “legitimate alternative that would have resulted in less discrimination.” Understanding Title VII is key to understanding the decision. (The court spends a couple pages discussing what I just condensed into two paragraphs.)

The Facts:

The city of New Haven, Connecticut has been sued over racial discrimination before:

In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 per-cent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107officers in the Department only one was black, and he heldthe lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).
Following a lawsuit and settlement agreement, see ibid., the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater proportion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American.

So New Haven tried to do the right thing:

When the City of New Haven undertook to fill vacant lieutenant and captain positions in its fire department (Department), the promotion and hiring process was governed by the city charter, in addition to federal and state law. The charter establishes a merit system. That system requires the City to fill vacancies in the classified civil-service ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority 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 score. To sit for the examinations, candidates for lieutenant needed 30 months’ experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year’s service as a lieutenant in the Department, a high-school diploma, and certain vocational training courses.

After reviewing bids from various consultants, the City hired Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the examinations, at a cost to the City of $100,000. IOS is an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments. In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates.

With the job-analysis information in hand, IOS developed the written examinations to measure the candidates’ job-related knowledge. For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. Each test had 100 questions, as required by CSB rules, and was written below a 10th-grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken.

IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job-analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors.

IOS assembled a pool of 30 assessors who were superior in rank to the positions being tested. At the City’s insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials for approval. They were battalion chiefs, assistant chiefs,and chiefs from departments of similar sizes to New Haven’s throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. IOS trained the panelists for several hours on the day before it administered the examinations, teaching them how to score the candidates’ responses consistently using checklists of desired criteria.

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, 6 blacks, and 3 Hispanics. 554 F. Supp. 2d, at 145. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Ibid. Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Ibid. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain—7 whites and 2 Hispanics. Ibid.

Those facts are undisputed. New Haven went through a lot of trouble coming up with a fair and racially neutral examination. Whether it was actually fair or not is disputed. One side argued that the results prove it it was unfair and the other side said the test was fair and the minority candidates just didn’t perform as well as the white candidates:

When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair.And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.

The key facts here are that the city went to a lot of trouble to come up with a test that was neutral and fair and that the only real evidence that it wasn’t was the results. So the city was between a rock and a hard place. If they certified the test results the minority firefighters would sue. If they didn’t certify the test results the white firefighters would sue. The vote was 2-2 with one member recused. The tie vote meant that the results were not certified.

The Decision:

Some of the white and Hispanic firefighters then filed suit alleging they were discriminated against because of their race. Five members of SCOTUS agreed:

Petitioners allege that when the CSB refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII’s disparate-treatment provision. The City counters that its decision was permissible because the tests “appear[ed] to violate Title VII’s disparate-impact provisions.” Brief for Respondents 12.Our analysis begins with this premise: 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.

Now you have to remember that the Title VII says “race” not “minority.” It is technically correct to say that the city based its decision on the fact that too many white people and not enough minorities did well on the test. Although they turned the statute’s intent on its head the court is correct that the city was treating white people differently because of their race. To look at it a different way, imagine if the city had thrown out the exam because all the top scorers were black or Hispanic and the city wanted more white candidates.

Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.


Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.”

The court said that the city screwed up because they didn’t have a “strong basis in evidence” to believe they would lose a “disparate impact” lawsuit:

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. See Firefighters, supra, at 515. 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.

In other words, it wasn’t enough for the the city to believe they would be sued if they certified they test, they had to reasonably believe they might lose the lawsuit. The problem is that wasn’t the rule . . . until yesterday. Under previous precedents the city made the right decision, as did the trial court and the appellate court.

Like I said, the decision is not the end of Affirmative Action and it is not a repudiation of Sonia Sotomayor. As a matter of fact she isn’t mentioned at all.


I didn’t discuss the concurring or dissenting opinions because this post is too damn long already.


2 Responses to Ricci Don’t Use That Number

  1. laborlawguy says:

    Best analysis I read so far, but I would add that it could easily be viewed as a de facto repudiation of the wise Latina.

  2. empty says:

    Thanks for the analysis. It was very helpful. If you have time more would also be appreciated 🙂

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