On June 29, 2009, the U.S. Supreme Court ruled that white firefighters in New Haven, Connecticut were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.
New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the Court said in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.
The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional. “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the Court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.
In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have persons received promotions in preference to them.” Justices Stephen Breyer, David Souter, and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in Court.
The decision had its origins in New Haven’s need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain. Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 hispanics. Of those, only 17 whites and two whites could expect promotion.
The city eventually decided to not use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964. The white firefighters said the decision violated the same law’s protection on intentional discrimination.
The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.
Justice Kennedy said, “The city could be liable for disparate-impact discrimination only if the examinations were not job related” or the city failed to use a less discriminatory alternative. We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects.”
Alternatively, Ginsburg said the court should have assessed “the starkly disparate results” of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city’s 21 fire captains was African-American.
Until this decision, Ginsburg said, the civil rights law’s prohibitions on intentional discrimination and disparate impact were complimentary, both aimed at ending workplace discrimination. “Today’s decision sets these paired directives at odds,” she said.