Just what constitutes reverse discrimination? In a 2009 case known as Ricci v. DeStefano, a group of white firefighters presented the U.S. Supreme Court with a case that challenges conventional notions of bigotry. They argued that the city of New Haven, Conn., discriminated against them in 2003 when it threw out a test that white firefighters passed at a 50% greater rate than blacks. Because performance on the test was the basis for promotion, none of the blacks in the department would have advanced had the city accepted the results.
To avoid discriminating against black firefighters, New Haven discarded the test. By making that move, however, the city prevented the white firefighters eligible for promotion from advancing to captain and lieutenant rank.
The Case in Favor of the Firefighters
Were the white firefighters subjects of racial discrimination?
It’s easy to see why one would think so. Take white firefighter Frank Ricci, for example. He scored the sixth highest on the exam out of the 118 test-takers. Seeking advancement to lieutenant, Ricci not only stopped working a second job, he also made flashcards, took practice tests, worked with a study group and participated in mock interviews to pass the oral and written exam, according to the New York Times. A dyslexic, Ricci even paid $1,000 to have someone read textbooks onto audiotapes, the Times reported.
Why were Ricci and the other top scorers denied the chance to promote simply because their black and Hispanic colleagues failed to do well on the test? The city of New Haven cites Title VII of the Civil Rights Act of 1964 which prohibits employers from using tests that have a “disparate impact,” or disproportionately exclude applicants of certain races. If a test does have such an effect, the employer must show that the assessment directly relates to job performance.
In April, counsel for the firefighters argued before the Supreme Court in Ricci v. DeStefano that New Haven could have proven that the test directly related to work duties; instead, the city prematurely declared the exam unfit. During the hearing, Chief Justice John Roberts doubted that New Haven would have chosen to discard the test had the outcomes by race been reversed.
“So, can you assure me that…if…black applicants…scored highest on this test in disproportionate numbers, and the city said…we think there should be more whites on the fire department, and so we’re going to throw the test out? The government of United States would adopt the same position?” Roberts asked.
But the New Haven attorney failed to give a direct and coherent response to Roberts’ question, prompting the judge to remark that the city would not have discarded the test had blacks scored well and whites not. If New Haven only did away with the test because it disapproved of the racial makeup of those who excelled on it, the white firefighters in question were no doubt victims of discrimination. Title VII not only prohibits “disparate impact” but also discrimination based on race in any aspect of employment, including promotion.
The Case in Favor of New Haven
The city of New Haven asserts that it had no choice but to discard the firefighting test because the exam discriminated against minority applicants. While counsel for the firefighters argues that the test administered was valid, the city’s lawyers say that an analysis of the exam found the test scores had no scientific basis and critical design steps were omitted during its development. Moreover, some of the qualities assessed on the test, such as rote memorization, didn’t directly tie in to firefighting in New Haven.
In discarding the test then, New Haven didn’t seek to discriminate against whites but to give minority firefighters a test that would not have a disparate impact on them. Why did the city so emphasize protecting black firefighters from discrimination? As Associate Justice Ruth Bader Ginsburg pointed out, traditionally in the U.S, “fire departments were among the most notorious excluders on the basis of race.”
New Haven itself had to pay $500,000 to two black firefighters in 2005 for unfairly promoting their white counterparts over them in the past. Knowing this makes it difficult to buy the white firefighters’ claim that the city prefers minority firefighters to Caucasians. To boot, New Haven substituted the controversial test given in 2003 with other exams that did not have a disparate impact on minority firefighters.
The Supreme Court's Ruling
What did the court decide? In a 5-4 ruling, it rejected New Haven’s reasoning, arguing that, “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
Legal analysts predict that the decision could generate a bevy of “disparate impact” lawsuits, as the court’s ruling makes it harder for employers to discard tests that adversely affect protected groups such as women and minorities. To prevent such lawsuits, employers will have to consider the impact a test may have on protected groups as it is being developed rather than after it’s been administered.