Discarded Tests Subject to Tougher Reverse Discrimination Standard

July 12, 2009 by Beeson Tayer & Bodine

In a closely divided opinion issued in June, the U.S. Supreme Court shifted its longstanding standard for the proof required to prove disparate impact under Title VII. Ricci v. DeStefano (2009). The Court held that the City of New Haven could not invalidate a firefighter promotional exam simply because the exam had a disparate impact on minority firefighters.

The City had refused to certify the exam results for fear the test’s disparate impact on minority firefighters would expose New Haven to liability under Title VII. In response several firefighters who scored well on the exam, many white and a few Hispanic, sued the City claiming that by discarding the test results the City discriminated against them based on race.

The EEOC has a longstanding policy, one previously approved by the Court, under which a selection rate that is less than 80 percent of the rate for the group with the highest rate is generally deemed evidence of discriminatory, adverse impact.

But the Court in Ricci held that such disparate test results alone are insufficient to justify an employer discarding the test results. Instead, the Court ruled, employers may remedy racial disparities only if there is a “strong basis in evidence” that the action is necessary to avoid liability.

Given this holding, an employer might now avoid liability for not remedying a policy that disparately affects minority employees if it can show a strong evidentiary basis it would be successfully sued by white plaintiffs were it to modify the policy.

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