Section I related the history of the case. Section II-A reiterated the doctrines underlying a disparate-treatment claim.
, and explained that the Court would not consider the Equal Protection Clause claim, since it would decide the Title VII disparate-treatment claim in favor of the petitioners.[1]
Section II-B edit
Kennedy first rejected the arguments that the City did not discriminate. In choosing not to certify the examination results because of the statistical disparity based on race—"i.e., how minority candidates had performed when compared to white candidates" -- it engaged in "express, race-based decisionmaking" (i.e.disparate treatment/intentional discrimination). The District Court was wrong to argue that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.”[2] "That argument turns upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective."
Second, Kennedy sought to determine whether, under the statutory framework of Title VII, this disparate treatment--which threatens Title VII’s disparate-treatment provision[3] (commanding that employers cannot take adverse employment actions because of an individual’s race)--is provided any lawful justifications in the disparate impact (unintentional discrimination) provision (which would be threatened if the City certified the results).
- He rejected petitioners' "strict approach," that under Title VII, "avoiding unintentional discrimination cannot justify intentional discrimination." That assertion ignores the fact that, by codifying the disparate-impact provision in 1991, Congress has expressly prohibited both types of discrimination, and would render a statutory provision “a dead letter”.[4]
- He rejected petitioners' suggestion that an employer "must be in violation of the disparate-impact provision before it can use compliance as a defense in a disparate-treatment suit." This rule would run counter to what we have recognized as Congress’s intent that “voluntary compliance” be “the preferred means of achieving the objectives of Title VII.”[5] Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment.
- He rejected the respondents' position that "an employer’s good-faith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct." This position would ignore "the original, foundational prohibition of Title VII", which bars employers from taking adverse action “because of . . . race.” §2000e–2(a)(1); and when Congress codified the disparate-impact provision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-faith effort to comply with the new, disparate-impact provision in subsection (k). Respondents' policy would encourage race-based action at the slightest hint of disparate impact -- e.g. causing employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination -- which would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.”[6] "That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing." §2000e–2(j). The purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.”[7]
Instead, he looked to analogous Equal Protection cases[8] for the statutory construction that, in instances of conflict between the disparate-treatment and disparate-impact provisions, permissible justifications for disparate treatment must be grounded in the strong-basis-in-evidence standard.
- Justice Powell, announcing the strong-basis-in-evidence standard for the plurality in Wygant v. Jackson Board of Education, recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other[9], stating that those “related constitutional duties are not always harmonious,” and that “reconciling them requires . . . employers to act with extraordinary care.” Ibid. The plurality required a strong basis in evidence because “[e]videntiary support for the conclusion that remedial action is war-ranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid. The Court applied the same standard in Richmond v. J. A. Croson Co., observing that “an amorphous claim that there has been past discrimination . . . cannot justify the use of an unyielding racial quota.”[10]
- The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII: Congress imposes liability on employers for unintentional discrimination, in order to rid the work-place of “practices that are fair in form, but discriminatory in operation.”[11] But Congress also prohibits employers from taking adverse employment actions “because of” race.[12] Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. See Firefighters, supra, at 515. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation. Resolving the statutory conflict in this way allows the disparate-impact prohibition to work in a manner that is consistent with other provisions of Title VII, including the prohibition on adjusting employment-related test scores on the basis of race. See §2000e–2(l). Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics. If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.[13]
He concluded that "once [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race."[14] "We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action."
Section II-C edit
Next, Kennedy inquired whether the city's justifications for its disparate-treatment discrimination met this strong basis in evidence standard. He concluded that they did not: "Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII." "There is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. 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."
The racial adverse impact here was significant, and petitioners do not dispute that the test results confronted the City with a prima facie case of disparate-impact liability. Based on the degree of adverse impact reflected in the results, respondents were compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact. The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity,[15] and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C).
Section II-C-1 edit
There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” Scott, supra, at 380.
Section II-C-2 edit
Respondents also lacked a strong basis in evidence of an equally valid, less-discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt. Respondents raise three arguments to the contrary, but each argument fails.
- First, respondents refer to testimony before the CSB that a different composite-score calculation—weighting the written and oral examination scores 30/70—would have allowed the City to consider two black candidates for then-open lieutenant positions and one black candidate for then-open captain positions. (The City used a 60/40 weighting as required by its contract with the New Haven firefighters’ union.) But respondents have produced no evidence to show that the 60/40 weighting was indeed arbitrary. In fact, because that formula was the result of a union-negotiated collective-bargaining agreement, we presume the parties negotiated that weighting for a rational reason.
- Second, respondents argue that the City could have adopted a different interpretation of the “rule of three” that would have produced less discriminatory results. Respondents claim that employing "banding" here would have made four black and one Hispanic candidates eligible for then-open lieutenant and captain positions. But banding was not a valid alternative for this reason: Had the City reviewed the exam results and then adopted banding to make the minority test scores appear higher, it would have violated Title VII’s prohibition of adjusting test results on the basis of race.[16]
- Third, and finally, respondents refer to statements by Hornick in his telephone interview with the CSB regarding alternatives to the written examinations. But when the strong-basis-in-evidence standard applies, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. And there is no doubt respondents fall short of the mark by relying entirely on isolated statements by Hornick.
Section II-C-3 edit
The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a law-suit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
- ^ See Atkins v. Parker, 472 U. S. 115, 123 (1985); Escambia County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam) (“[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case”).
- ^ 554 F. Supp. 2d, at 160.
- ^ See §2000e–2(a)(1)
- ^ See, e.g., United States v. Atlantic Research Corp., 551 U. S. 128, 137 (2007)
- ^ Firefighters v. Cleveland, 478 U. S. 501, 515 (1986); see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 290 (1986) (O’Connor, J.,concurring in part and concurring in judgment).
- ^ Watson, 487 U. S., at 992 (plurality opinion).
- ^ Griggs, 401 U. S., at 434.
- ^ "cases discussing constitutional principles can provide helpful guidance in this statutory context." See Watson, supra, at 993 (plurality opinion)
- ^ 476 U. S., at 277.
- ^ 488 U. S., at 499.
- ^ Griggs, supra, at 431.
- ^ §2000e–2(a)(1).
- ^ See §2000e–2(h) (“[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, in-tended or used to discriminate because of race”); cf. AT&T Corp. v. Hulteen, 556 U. S. ___, ___ (2009) (slip op., at 8).
- ^ Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below,because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution. Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. ... Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end.
- ^ Connecticut v. Teal, 457 U. S. 440, 446 (1982),
- ^ §2000e–2(l); see also Chicago Firefighters Local 2 v. Chicago, 249 F. 3d 649, 656 (CA7 2001) (Posner, J.) (“We have no doubt that if banding were adopted in order to make lower black scores seem higher, it would indeed be . . . forbidden”). As a matter of law, banding was not an alternative available to the City when it was considering whether to certify the examination results.