LAW ALERT: An Employer’s Dilemma: Disparate Treatment Versus Disparate Impact

The United States Supreme Court has issued its ruling in the Ricci, et. al. v. Destefano, et. al. case (referred to by the press as the “reverse” discrimination case that U.S. Supreme Court nominee, Sonia Sotomayor, decided with other Court of Appeal justices). Essentially the case stands for the rule that an employer may not manipulate (adjust for race conscious reasons) the results of a legitimate, facially neutral, and job-related promotional examination to obtain a more diverse workforce absent a showing that there is a strong basis for the employer to believe that if it does not manipulate the results it will be exposed to disparate impact liability (unintentional discrimination liability based on the negative effect an otherwise neutral policy or practice may have on a protected class).

In the Ricci case, the New Haven Fire Department conducted written and oral exams for promotion to the ranks of Captain and Lieutenant. Each exam had previously been validated as job related and race neutral. Of the 41 employees who took the Captain’s exam, 25 were white, 8 were black, and 8 were Hispanic. Based on the results, it appeared that no blacks and only two Hispanics would be eligible for the promotion. Of the 77 employees who took the Lieutenant’s exam, 43 were white, 19 were black, and 15 were Hispanic. The results of this exam revealed that no blacks or Hispanics were eligible for promotion to Lieutenant.

After conducting a hearing for the certification of the results of the exams, the New Haven Civil Service Board was afraid that it would face a disparate impact discrimination lawsuit if it promoted only those who scored high enough to be promoted. Based on this fear, the Board failed to certify the exams and no individuals were promoted. The firefighters eligible for promotion (17 whites and one Hispanic) sued claiming that the Board’s decision was intentional discrimination (“disparate treatment”) against white firefighters which violated Title VII and the Equal Protection Clause. The lead plaintiff, Ricci, also had dyslexia and had engaged in extensive training and studying to take the test. Unlike usual challenges to employment exams where individuals argue that the use of the racially discriminatory exam results in a disparate impact on protected classes, the Plaintiffs argued that “but for” the city’s actions (refusal to use the results of an exam that had previously been approved as racially neutral), they would have been promoted.

The Court concluded that it is not enough to satisfy the strong basis of evidence standard by simply pointing to a significant statistical disparity such as the one that existed in this case. The Court said that since the city had pre-validated the exams and they were clearly job related, the city would likely have prevailed in any disparate impact challenge and therefore its refusal to promote those firefighters who passed the exam constituted discrimination under Title VII.

Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at