Ricci and Employment Tests

Written by Henry L. Chambers, Jr. on July 1st, 2009

The Supreme Court issued its opinion in Ricci v. DeStefano, the New Haven firefighters case, on Monday.  It was a typical 5-4 decision in which the conservative wing of the Court declined to allow New Haven to attericci-190.jpgmpt to guarantee racial equality in promotions.  Leaving aside civil service rules, Title VII and employment law in general allow employers to make employment decisions, including promotions, on any basis the employer wishes as long as those decisions do not trigger a disproportionate impact on various groups.  Of course, public employers also need to abide by the Constitution and civil service rules, but these rules can be left to the side for now.  Employers may generally choose its supervisors arbitrarily and capriciously – even at random – and not run afoul of Title VII if the results lead to a fully integrated pool of supervisors.  Given that, any selection process that an employer believes helpful in choosing supervisors is generally acceptable.  However, if the process yields a racial impact, Title VII requires that the process be justified as accurate and necessary.  New Haven took the position that their method for choosing lieutenants and captains was a reasonable way to choose supervisors as long as the supervisors chosen were a racially mixed group.  However, once it became clear that the process yielded a racial impact, New Haven viewed the process as an insufficiently justifiable to overcome its racially disproportionate results.  Oddly, the conservative majority of the Court took the position that the method New Haven chose relied “on objective examinations to identify the best qualified candidates.” That is, the conservative majority took the position that a merely noncapricious process for choosing candidates for promotion that yielded a disproportionate racial impact was an objective measure of merit even though the employer that used the process took the position that the process could not be defended as an objective measure of merit.  This is troubling, but not necessarily surprising.


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