Intent to Discriminate vs. Intent to Avoid Liability - Not the Same

By Leland Ware

Ricci v. DeStefano involved a challenge to the City of New Haven’s decision to decline to certify the results of promotional examinations for firefighters that had a disparate impact on minority test takers. A group consisting of 17 white and one Hispanic firefighters filed a civil action alleging that they were denied promotional opportunities on the basis of their race in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

Civil Service examinations were administered in 2003 for Captain and Lieutenant positions in the New Haven Fire Department. The pass rate for black test takers was significantly lower than the pass rate of white test takers. Under the EEOC’s Guidelines “The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines.”

“Validation” is a technical process that involves determining whether a test is “job related,” i.e., sufficiently related to the position for which the test is administered. In a long line of cases beginning with the 1971 decision in Griggs v. Duke Power Co., the Supreme Court has consistently endorsed the adverse impact rule and the EEOC’s Guidelines. Congress codified the disparate impact rule in the Civil Rights Act of 1991.

After learning that the Captain and Lieutenant examinations produced a disparate impact New Haven’s Civil Service Board held hearings over several days. A psychologist stated that that written tests were not as valid as other selection procedures that were available. This was an “assessment center” process in which candidates demonstrate their knowledge of the relevant operating procedures and show how they would address problems instead of verbally stating answers to questions or identifying the correct item on a written test.

A Fire Program Specialist for the U.S. Department of Homeland Security contended that the test was appropriate. A professor of counseling psychology at Boston College explained how race and culture influence test performance. Some firefighters testified that the tests were fair others claimed they were not. New Haven decided to decline to certify the results of the promotional examinations.

The trial court found that New Haven’s concern about the examinations’ disparate impact was a legitimate, nondiscriminatory reason for declining to certify the examination results. The Court also found that the white and Hispanic firefighters did not show that the City’s justification was a pretext for unlawful discrimination. The trial court’s decision was summarily affirmed by the Court of Appeals for the Second Circuit.

The Supreme Court reversed. The majority conflated intent to discriminate with intent to avoid liability under the disparate impact theory. These are not the same. If New Haven acted to avoid liability under the disparate impact theory, it did not act with an intent to discriminate against the white and Hispanic test takers. As there were two possible reasons for New Haven’s actions the majority should have remanded the case for a determination of this disputed factual issue.

The Supreme Court created an entirely new standard for complying with Title VII of the Civil Rights Act of 1964. It found that an employer caught between potential claims of disparate treatment and disparate impact can take action to avoid liability only if it has a “strong basis in evidence” for doing so. The majority applied this standard to New Havens’ actions and concluded that it failed to satisfy this requirement. Fundamental notions of Due Process require that a party to litigation be given notice and an opportunity to be present evidence supporting its position. At minimum, the party should be given “fair warning” of the standard that would be applied. The case should have been remanded for a determination of whether New Haven had a “strong basis in evidence” for believing that the examinations were not job related and consistent with business necessity or that there was an alternate selection device that would not produce a disparate impact.

Associate Justice Samuel Alito concurred with majority's decision to enter a summary judgment against New Haven but, in a concurring opinion, he argued passionately that a jury could have found that New Haven intentionally discriminated against the white and Hispanic firefighters. One cannot have it both ways, either summary judgment was appropriate or there were genuine issue of fact that required a trial. A jury might also have found that that New Havens’ actions were not motivated by racial animus.

The majority also found that the promotional tests had been validated when the record showed that there was conflicting evidence concerning the examinations’ validity. As it was undisputed that the examinations had an adverse impact on African American test takers, the critical questions were whether the examinations had been properly validated and whether alternate selection procedures were available that would not produce a disparate impact. The testimony concerning the examinations’ validity during the Civil Service Board hearings was, at best mixed, with some fact witnesses and experts contending the examinations were valid and other witnesses and experts who contended that the examinations were flawed and that there were alternate selection procedures available that would not produce a disparate impact. The majority chose to discount the evidence in New Haven’s favor as a few “stray remarks” and to accord more weight to testimony that the examinations were valid. This sort of fact finding should not occur at the appellate level

There were at least three disputed issues: (1) the City’s actual intent when it decided not to certify the examinations, (2) whether the examinations were valid and (3) whether there was an alternate selection practice available that would not produce a disparate impact. This factual dispute should have been resolved by a fact finder at the trial court level.

Fortunately, the majority did not challenge the disparate impact theory in the way suggested in Justice Scalia’s concurring opinion. He believes that the disparate impact theory conflicts with the Equal Protection Clause of the Fourteenth Amendment.

Because of the way in which the New Haven tests were developed, a situation like this is unlikely to occur in many cases. Employers can avoid this sort of situation by screening and pre-testing standardized examinations prior to the time that they are actually administered.

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About the Author:


Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.

He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.