The U.S. Supreme Court’s decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), attempts to answer the difficult question of whether an employer may intentionally discriminate against members of one protected class, to avoid a disparate impact claim by individuals in another protected group. In Ricci, the Court held that an employer’s refusal to certify test results on a promotional exam simply because a disproportionate number of minority examinees were unsuccessful constituted prima facie discrimination against the successful examinees in violation of Title VII. The employer could not remedy the racial disparity in its test results by making a race-based decision, unless it had a “strong basis in evidence" that certifying the results would make the employer liable for “disparate impact" discrimination against the unsuccessful minority examinees.

The City of New Haven, Connecticut, in reviewing its test results for promotions within its fire department, determined that certain minority groups failed the test at a disproportionately high rate as compared to non-minorities. A group of minority firefighters threatened a lawsuit, alleging that the test created a disparate impact on minority examinees. After a series of hearings,New Havendecided not to certify the test results. As a result, the firefighters who had successfully passed the exam were denied a place on the city’s promotion list.

Ultimately, 18 of the successful firefighters (17 white and one Hispanic) joined together and filed their own lawsuit, alleging that failure to certify their exam results constituted a violation of the U.S. Constitution's Equal Protection Clause, as well as Title VII of the Civil Rights Act of 1964. New Havenargued that its decision not to certify the test was designed to prevent an unlawful “disparate impact" on a recognized group of minority applicants. The district court agreed, and granted summary judgment in favor ofNew Haven, holding that it is not unlawful to take race into account to avoid a disparate impact claim. The Court of Appeals affirmed the district court’s decision.

The U.S. Supreme Court reversed. Initially, the Court had little difficulty holding that the City’s refusal to certify the test results because of the racial composition of the successful test-takers was a prima facie violation of Title VII's anti-discrimination provisions. The more challenging question was whether, or under what circumstances, such discrimination may be justified by legitimate business reasons? The lower courts had acceptedNew Haven’s argument that it need only show a “good faith belief" that the test results had an unlawful disparate impact on minorities. Instead, the U.S. Supreme Court held that employers are entitled to remedy a test’s disparate impact on minority examinees only when the employer has a “strong basis in evidence" that it will be liable for disparate impact.

Unfortunately, Ricci does not provide employers with much guidance as to when a “strong basis in evidence" exists. Based on Ricci, it seems clear that a statistical disparity alone is not enough. At a minimum, the employer must have evidence that its test was not job-related, or that less discriminatory testing options exist. Otherwise, the employer may be denying job benefits to a group of qualified examinees out of nothing more than a self-interested desire to avoid the time and expense of a threatened disparate impact lawsuit.

Although Ricci arose in the public sector, its reasoning applies to private employers as well. Any employer that uses tests to make hiring or promotional decisions should seek advice from experienced employment law counsel or HR professionals on how Ricci impacts their personnel policies. At a minimum, such tests should be reviewed to ensure that they are job related for the position in question and consistent with business necessity. Given the uncertainty in this area, employers should also consider whether alternative hiring and/or promotional practices are available that create less potential for disparate impact claims.

Employers should also seek guidance as to the impact of Ricci on existing affirmative action plans. Ricci indicates that Title VII permits some affirmative action plans: “[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made." Still, the contours of the employer’s right to make affirmative efforts to ensure a “fair opportunity" are murky, at best. Employers are cautioned to tread carefully in this area.