HRC Blog

In this blog series, HRC attorneys discuss news and break down legal theories relevant to a U.S. Supreme Court nomination and the pending retirement of Justice David Souter. The Supreme Court today, in a 5-4 ruling, reversed the Second Circuit’s decision in Ricci v. DeStefano.  The case has generated a great deal of attention both because of the important issues it raises about race-based actions and because of the involvement of Supreme Court nominee Sonya Sotomayor, currently a judge on the Second Circuit Court of Appeals.  Judge Sotomayor sat on the three-judge panel that affirmed the district court’s grant of summary judgment for the City of New Haven, Connecticut. In 2003, the New Haven Fire Department administered written and oral exams to determine the promotion of firefighters to captain and lieutenant positions.  None of the twenty-seven African-Americans and at most two Hispanics who took the exams scored high enough to be eligible for promotion.  After a series of hearings, New Haven’s Civil Service Board refused to certify the results because of the adverse impact they would have had on these minority candidates.  The city believed the impact would likely have constituted racial discrimination in violation of Title VII of the Civil Rights Act of 1964. Title VII prohibits most employers, including state and local governments, from discriminating on the basis of race, color, sex, religion, and national origin.  This prohibition includes both intentional, and explicit discrimination, as well as disparate impact discrimination.  Disparate impact discrimination occurs when policies that are neutral on their face disproportionately affect employees because of their membership in one of Title VII’s protected classes.  In the New Haven exams, the rate at which minority firefighters passed the lieutenant and captain exams and the rate at which they would have been promoted were so low that, under federal guidelines, they would have been evidence of adverse impact if the minority candidates chose to sue the city under Title VII.  Frank Ricci, a white firefighter, along with seventeen other firefighters who scored well on the exams, sued the City of New Haven alleging reverse discrimination under Title VII.  In September 2006, the U.S. District Court for the District of Connecticut granted summary judgment in favor of the City of New Haven, holding that the city’s decision to avoid making promotions based on exams that adversely impacted racial minorities did not constitute intentional discrimination under Title VII.  The Court also held that the city’s decision did not create a race-based classification for equal protection purposes since it applied to all the exam results, not just those of members of a certain race.  In a short opinion in February 2008, a three-judge panel of the Second Circuit affirmed the district court’s decision.  The full Second Circuit voted 7-6 to deny a rehearing of the case in June 2008.  The six dissenting judges called on the Supreme Court to review the decision. The Court’s ruling today may alter the landscape of Title VII litigation.  Justice Kennedy asserted that “fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” The majority decision will make it much more challenging for plaintiffs to allege disparate treatment.  Justice Ginsburg filed a dissenting opinion in line with Sotomayor’s initial decision, claiming “context matters…[the white firefighters have] no vested right to promotion. Nor have other persons received promotions in preference to them.” Sotomayor will likely face much criticism on this case when her Senate hearings begin on July 13^th. However, her decision was in line with similar rulings out of the Sixth Circuit and an earlier Second Circuit ruling decided by three judges appointed by Republicans. Tellingly, Justice Souter joined Justice Ginsburg’s dissenting opinion which would have upheld the Second Circuit’s ruling.  As a result, Judge Sotomayor’s addition to the Supreme Court would not have changed the outcome of Ricci. Learn more about federal judicial nominations and follow our work on these crucial issues on HRC’s Equality in the Courts page. Contributed by Emily Ames, Summer 2009 McCleary Law Fellow