Law, Business and Society 11th Edition by Tony McAdams

تمرين 29

Justice Kennedy
In 2003,118 New Haven [Connecticut] firefighters took examinations to qualify for promotion to the rank of lieutenant or captain.… The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost.
When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.
Certain white and Hispanic firefighters who likely would have been promoted based on their good test performance sued the City and some of its officials. Theirs is the suit now before us. The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in violation of…. Title VII of the Civil Rights Act of 1964…. The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters.
I
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A
The [City] charter establishes a merit system. That system requires the City to fill vacancies in the classified civil-service ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter's "rule of three," the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list.
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Under the [union] contract, applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and the oral exam 40 percent of an applicant's total score. To sit for the examinations, candidates for lieutenant needed 30 months' experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year's service as a lieutenant in the Department, a high-school diploma, and certain vocational training courses.
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The City hired Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the examinations, at a cost to the City of $100,000. IOS is an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments. In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions.
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At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results-which IOS would use to develop the examinations-would not unintentionally favor white candidates. With the job-analysis information in hand, IOS developed the written examinations to measure the candidates'job-related knowledge.
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After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken. IOS developed the oral examinations as well. These concentrated on job skills and abilities.
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Candidates took the examinations in November and December 2003. Seventy-seven candidates completed the lieutenant examination-43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed-25 whites, 6 blacks, and 3 Hispanics. Eight lieutenant positions were vacant at the time of the examination. Under the rule of three, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white.
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Forty-one candidates completed the captain examination-25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed-16 whites, 3 blacks, and 3 Hispanics. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain-7 whites and 2 Hispanics.
B
Based on the test results, the City officials expressed concern that the tests had discriminated against minority candidates.
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[The City decided] not to certify the results.
C
The [City's] decision not to certify the examination results led to this lawsuit. The plaintiffs-who are the petitioners here-are 17 white firefighters and 1 Hispanic firefighter who passed the examinations but were denied a chance at promotions when the [City] refused to certify the test results. They include the named plaintiff, Frank Ricci….
Petitioners … filed timely charges of discrimination with the Equal Employment Opportunity Commission (EEOC);... asserting that the City violated the disparate-treatment prohibition contained in Title VII of the Civil Rights Act of 1964…
Respondents [the defendants] asserted they had a good-faith belief that they would have violated the disparate impact prohibition in Title VII … had they certified the examination results. It follows, they maintained, that they cannot be held liable under Title Vll's disparate-treatment provision for attempting to comply with Title Vll's disparate-impact bar. Petitioners countered that respondents' good-faith belief was not a valid defense to allegations of disparate treatment….
The District Court granted summary judgment for respondents…. The Court of Appeals affirmed….
II
B (A OMITTED-ED.)
Petitioners allege that when the [City] refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title Vll's disparate-treatment provision. The City counters that its decision was permissible because the tests "appealed] to violate Title Vll's disparate-impact provisions."
Our analysis begins with this premise: The City's actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose 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….
We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment-discrimination.
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If an employer cannot rescore a test based on the candidates' race, then it follows…. 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….
For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.
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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.… 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.
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C
The City argues that, even under the strong-basis-in-evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect.
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.…[T]here is no evidence-let alone the required strong basis in evidence-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 examination and qualified for promotions. The City's discarding the test results was impermissible under Title VII….
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.
[Reversed and remanded.]
What could an employer do to avoid the situation New Haven faced in this case?