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WASHINGTON – During oral arguments Wednesday, the justices of the U.S. Supreme Court tackled the thorny issue of whether an employment action meant to prevent minorities from being denied promotions can itself be discriminatory.

The case, Ricci v. DeStefano , involves the refusal by New Haven’s Civil Service Board to certify test results that are used to grant promotions within the city’s fire department.

City officials said the decision came after all but one minority firefighter failed to qualify under the test, leading them to believe the test was racially flawed and could violate Title VII’s disparate impact prohibition.

The one minority firefighter and a number of white firefighters whose results did qualify for a promotion sued the city and city officials, claiming they were discriminated against on the basis of race in violation of Title VII and the Equal Protection Clause.

Both parties filed motions for summary judgment.

The trial court denied the plaintiffs’ motion and granted the defendants’ motion, reasoning that the city officials had a legitimate concern that the test results could lead to discriminatory outcomes, and that the plaintiffs were not treated differently than any other employee because all the test results were dismissed.

The 2nd Circuit affirmed and the Supreme Court granted certiorari.

Toughest standard

At oral arguments, Gregory S. Coleman, a partner in the Austin, Texas office of Yetter, Warden & Coleman, represented the firefighters, and urged the Court to apply the toughest standard of scrutiny.

"Governmental employment actions grounded in race must be strictly scrutinized because they engender divisiveness and cause race-grounded harm that the Constitution seeks to avert," Coleman said.

But Justice David Souter expressed serious concern about forcing city officials to prove, with a "strong basis in evidence," that they would violate Title VII if they didn’t throw out the test, as the firefighters advocated.

"The problem that I have [with] your argument 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," Souter said. "Because on the very assumptions that you are making, if they go forward with their hiring plan [and] certify the results … they are inevitably facing a disparate impact lawsuit."

When Souter asked if a good-faith standard would be better, Coleman replied: "No, I completely disagree with that, Justice Souter. It is not simply a matter of good faith."

"But you make no distinction between race as an animating discriminating object on the one hand and race consciousness on the other," Souter said.

Coleman argued that when race is at issue, allowing the city officials to argue that they only had a good-faith belief they would violate Title VII by accepting the test wasn’t enough.

"The use of race is so … very important that the Court has always expressed skepticism and hostility to it," Coleman said.

"You are imposing your ‘strong basis in evidence’ test [based on] the use of race, and that cannot be correct because the use of race includes race-conscious decisions which are not discriminatory decisions," Souter said.

Deputy Solicitor General Edwin Kneedler, who argued on the government’s behalf independent of either party, urged the Court to vacate and remand the ruling.

Kneedler emphasized that while adverse impact and adverse treatment equally violate Title VII, employers should be encouraged to voluntarily comply with the law, as the city officials did.

But Chief Justice John G. Roberts, Jr. wondered if the government’s position might change in a different situation.

"Can you assure me that the government’s position would be the same if black firefighters scored highest on this test in disproportionate numbers, and the city said, ‘We don’t like that result. We think there should be more whites on the fire department, and so we’re going to throw the test out’?"

"Yes," Kneedler said.

Neutral application

Christopher J. Meade, a partner in the New York office of WilmerHale, argued on behalf of the city officials that the decision not to certify the test was applied neutrally, drawing questions from Justice Antonin Scalia.

"I don’t see how you can call it facially neutral," Scalia said. "It’s neutral because you throw it out for the losers as well as for the winners? That’s neutrality?"

"There is no classification," Meade said.

"Why is this not intentional discrimination?" Roberts asked. "The plaintiffs … didn’t get their jobs because of intentional racial action by the city. [W]hy is that not on the … [intentional] racial discrimination side rather than the permissible race consciousness side?"

"The question is whether the employer had a sufficient basis at the time of its action to make a determination that the test should not be used," Meade said.

A decision is expected later this term.

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com

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