Supreme Court Firefighter Decision Could Alter Civil Rights Employment Law

Sometime this month, perhaps even today, the U.S. Supreme Court will hand down a ruling with potentially far-reaching implications for employers.

So much has been reported and written about the case of Ricci v. DeStafano that it’s almost impossible to have missed the story of how 20 New Haven, Conn. firefighters were denied  promotions although they came out on top in civil service tests for lieutenant and captain. Eighteen of the top scorers were white; two Latino. None were black, although the city is 37 percent black and blacks made up 30 percent of the fire department in 2003, when the test was given.

When the city’s Civil Service Board got the results, it feared certifying the test would expose the city to a Civil Rights lawsuit on the basis that the test had a disparate impact on a protected minority. But not certifying the results meant an almost certain lawsuit from the successful candidates who might claim, as they later did, that they had been discriminated against based on their race. A part of Title VII of the Civil Rights Act of 1964 makes it illegal to “alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

The Morton’s Fork faced by the board was underscored by its 2-2 vote on certification, an outcome that meant the test results were not certified.

New Haven’s dilemma was neatly described by Justice David Souter during the Supreme Court hearing on the matter in April.

David Souter
David Souter

“The problem I have with your argument,” he told the attorney for the firefighters, “is that it leaves a municipality or a governmental body like New Haven in a damned if you do, damned if you don’t situation… If they go forward with their hiring plan, they certify the results and go forward with it, they are inevitably facing a disparate impact lawsuit.

“If they stop and say, ‘Wait a minute, we’re starting down the road toward a disparate impact lawsuit and, indeed, there may be something wrong here,’ they are inevitably facing a disparate treatment suit. And whatever Congress wanted to attain, it couldn’t have wanted to attain that kind of a situation.”

Key questions

The key question the Supreme Court must decide is: Can a municipality — and potentially any employer — can reject the results of a test for racial reasons, even if a disparate impact is not proved? There are two other specific questions presented for the court, but they boil down to the same fundamentals.

Under court decisions and the Civil Rights Act of 1964 as amended by Congress in 1991, an employer can be found to have discriminated, and thus be in violation of the law and subject to civil penalties, if a “facially neutral employment practice… has an unjustified adverse impact on members of a protected class.”

But if the employer can show the test is job-related and there is a business necessity for its administration — say, testing the ability of a firefighter candidate to hoist a ladder while dressed in full gear — then the employer may be able to escape liability. However, there is a loophole here. The group claiming discrimination may still prevail if it can show that there are other, equally valid assessment methods meeting the employer’s objectives that don’t result in a disparate impact.

Job simulations

In the only published academic research comparing the results of pencil-and-paper tests (like the one administered to the New Haven firefighters) and interactive simulation testing, Amy Mills, of Aon Consulting, and Dr. Neal Schmitt of Michigan State University found little difference in the predictive value of the two on job performance. They did find that with the simulation, the performance of minority candidates was similar to that of white candidates. On the pencil-and-paper tests, minorities scored significantly lower.

“There’s less of an adverse impact in simulations than in the pencil-and-paper tests,” Schmitt told us for an article published in the May 2009 issue of the Journal of Corporate Recruiting Leadership.

In fact, in the New Haven test, the city weighted the written multiple-choice part, which is the subject of the lawsuit, at 60 percent of the overall score. An oral exam was weighted at 40 percent.

Though the disappointed firefighters presented evidence supporting the test, while the city offered statistical data to demonstrate a prima facie case of disparate impact, the validity of the test as a promotional tool was never actually at issue. Instead, the federal court ruled that the city had the right to throw out the results.

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In ruling for the city, U.S. District Judge Janet Bond Arterton called the city’s decision “race neutral,” since “all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process.”

The Second Circuit Court of Appeal upheld the decision in a single paragraph, that has now become a central part of the national judicial debate because Supreme Court nominee Sonia Sotomayor was one of the three judges to hear the firefighters appeal.

What will the court do?

Many observers think the court will rule in favor of the firefighters.

Chief Justice Roberts
Chief Justice Roberts

Chief Justice John Roberts signaled his dissatisfaction when he asked during the oral arguments if the city was to “get do-overs until it comes out right?”

Justice Antonin Scalia challenged the idea that the city had been racially neutral in tossing the results. “It’s neutral because you throw it out for the losers as well as for the winners? That’s neutrality?”

If the court does overrule the lower courts, it could simply order the case back to the lower court to decide the city’s motives in tossing the test. The city would then be in the uncomfortable position of attacking the validity of a test it commissioned and approved, but Title VII would remain intact.

The possible, broader implications of a reversal could be the watering down of the “disparate impact” portion of the Civil Rights Act. The court could say the city had no right to refuse to certify the test simply because of the outcome.

At the extreme, the court could go so far as to rule sections of the Civil Rights Act unconstitutional, though almost no one expects that broad a decision.

John Zappe is the editor of and a contributing editor of John was a newspaper reporter and editor until his geek gene lead him to launch his first website in 1994. He developed and managed online newspaper employment sites and sold advertising services to recruiters and employers. Before joining ERE Media in 2006, John was a senior consultant and analyst with Advanced Interactive Media and previously was Vice President of Digital Media for the Los Angeles Newspaper Group.

Besides writing for ERE, John consults with staffing firms and employment agencies, providing content and managing their social media programs. He also works with organizations and businesses to assist with audience development and marketing. In his spare time  he can be found hiking in the California mountains or competing in canine agility and obedience competitions.

You can contact him here.


9 Comments on “Supreme Court Firefighter Decision Could Alter Civil Rights Employment Law

  1. Very cogent summary and analysis of the facts, John. Thank you for following up on what will surely be a seminal case affecting employment testing in the US.

  2. This article provides a reasonable discussion of Title VII issues to be addressed in Ricci v. DeStanfo. However, it does not address the constituional issue raised (Equal Protection) and incorrectly implies that the exclusive focus of the litigation is a written test. In reality, the hiring tools at issue are a written job knowledge examination and an ORAL EVALUATION of the ability to command others in emergency situations. Moreover, the Supreme Court’s opinion could impact an employer’s approach to the use of hiring tools well beyond written tests–the decision may impact the use of the many hiring tools that frequently exhibit disparate impact (e.g., criminal background checks, credit checks, educational requirements, physical requirements, drug testing).

    David Arnold, Ph.D., J.D.

  3. David, agreed – I was surprised as well to not see the paramount issue of the Equal Protection Clause brought up.

    After all, didn’t Plessy vs. Ferguson substantiate the U.S. Constitution’s stance that “All Men are Created Equal”? Oh yeah, it didn’t – I must be thinking of another case 🙂

  4. I believe it’s time that we remember that “Equal Opportunity” is that it allows everyone to compete on level ground but it does NOT guarantee that everyone will have equal success.

    I would venture a guess that everyone that took these tests knew the components of the tests – did some just study harder?

    Personally, I would like my firefighters to know what the heck they are doing, and if they want a leadership positon then they should know it better than everyone else.

  5. Dr. Arnold, general counsel for test publisher Wonderlic, is certainly correct in noting that an oral exam was part of the testing procedure in the New Haven firefighter case. However, the written test accounted for 60 percent of the total. The passing score for both parts combined was 70.

    Thus even a perfect score on the oral portion was insufficient. And passing the test was not the same as qualifying for a promotion, as only the top three scorers were eligible to be considered for each spot.

    Dr. Arnold also questions the lack of discussion of 14th Amendment Equal Protection issues. Constitutional issues lurk in the background of every federal case and this is certainly no exception.

    But there is no indication from the principal briefs or the oral argument that the Supreme Court is struggling with the constitutionality of Title VII.

    In the trial court decision, Judge Arterton dismissed the firefighters’ Equal Protection argument in 3 pages of her 48 page decision. Her reasoning, in a nutshell, was that since no one got promoted, no one group was discriminated against.

    We’re very likely to see some discussion of that thinking, given Justice Scalia’s comments, which I quote in the article. But unless the Court throws judicial restraint to the wind, it can decide this case on narrower grounds.

  6. It’s good to see the above post concurs that the “written test” is not the only hiring practice at issue as implied by the article. Also, constituitional issues don’t lurk in every federal case as indicated in the post–many focus exclusively on federal law (e.g., Title VII, anti trust)–this case does not. Finally, I’m not quite sure why the writer felt compelled to note that I’m General Counsel for Wonderlic, Inc.–for disclosure sake I’m also General Counsel for the Association of Test Publishers, and have previously worked for an an international airline, a large municipality and conducted work for many federal government agencies–although I’m not sure of the relevancy thereof regarding this post? That aside, my legal opinion on the impact and issues of the case are still valid.

    David Arnold, Ph.D., J.D.

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