Dissent Ricci v. DeStefano

justice ginsburg in dissent.

new haven maintains refused certify test results because believed, cause, vulnerable title vii disparate-impact suit if relied on results. court today holds new haven has not demonstrated “a strong basis in evidence” plea. ante, @ 2. in holding, court pretends “[t]he city rejected test results solely because higher scoring candidates white.” ante, @ 20. pretension, essential court’s disposition, ignores substantial evidence of multiple flaws in tests new haven used. court fails acknowledge better tests used in other cities, have yielded less racially skewed outcomes.

by order of court, new haven, city in african-americans , hispanics account 60 percent of population, must today served—as in days of undisguised discrimination—by fire department in members of racial , ethnic minorities seen in command positions. in arriving @ order, court barely acknowledges pathmarking decision in griggs v. duke power co., 401 u. s. 424 (1971), explained centrality of disparate-impact concept effective enforcement of title vii. court’s order , opinion, anticipate, not have staying power.

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new haven’s population includes greater proportion of minorities today did in 1970s: 40 percent of city’s residents african-american , more 20 percent hispanic. among entry-level firefighters, minorities still underrepresented, not starkly so. of 2003, african-americans , hispanics constituted 30 percent , 16 percent of city’s firefighters, respectively. in supervisory positions, however, significant disparities remain. overall, senior officer ranks (captain , higher) 9 percent african-american , 9 percent hispanic. 1 of department’s 21 fire captains african-american. see app. in no. 06–4996–cv (ca2), p. a1588 (hereinafter ca2 app.). against backdrop of entrenched inequality promotion process @ issue in litigation should assessed.

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pursuant new haven’s specifications, ios developed , administered oral , written exams. results showed significant racial disparities. on lieutenant exam, pass rate african-american candidates one-half rate caucasian candidates; pass rate hispanic candidates lower. on captain exam, both african-american , hispanic candidates passed @ half rate of caucasian counterparts. see app. 225–226. more striking still, although half of 77 lieutenant candidates african-american or hispanic, none have been eligible promotion 8 positions vacant. highest scoring african-american candidate ranked 13th; top hispanic candidate 26th. 7 then-vacant captain positions, 2 hispanic candidates have been eligible, no african-americans. highest scoring african-american candidate ranked 15th. see id., @ 218–219.

these stark disparities, court acknowledges, sufficed state prima facie case under title vii’s disparate-impact provision. see ante, @ 27 (“the pass rates of minorities . . . f[e]ll below 80-percent standard set [equal employment opportunity commission (eeoc)] implement disparate-impact provision of title vii.”). new haven had cause concern prospect of title vii litigation , liability. city officials referred matter new haven civil service board (csb), entity responsible certifying results of employment exams.

between january , march 2004, csb held 5 public meetings consider proper course. @ first meeting, new haven’s corporation counsel, thomas ude, described legal standard governing title vii disparate-impact claims. statistical imbalances alone, ude correctly recognized, not give rise liability. instead, presented disparity, employer “has opportunity , burden of proving test job-related , consistent business necessity.” ca2 app. a724. title vii plaintiff may attempt rebut employer’s showing of job-relatedness , necessity identifying alternative selection methods have been @ least valid “less of adverse or disparate or discriminatory effect.” ibid. see id., @ a738. accordingly, csb commissioners understood, principal task decide whether confident reliability of exams: had exams measured qualities of successful fire officer despite disparate results? might alternative examination process have identified qualified candidates without creating such significant racial imbalances?

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respondents no doubt conscious of race during decisionmaking process, court acknowledged, did not mean had engaged in racially disparate treatment. conclusion had reached , action thereupon taken race-neutral in sense: “[a]ll test results discarded, no 1 promoted, , firefighters of every race have participate in selection process considered promotion.” id., @ 158. new haven’s action, gave no individual preference, “was ‘simply not analogous quota system or minority set-aside candidates, on basis of race, not treated uniformly.’ ” id., @ 157 (quoting hayden, 180 f. 3d, @ 50).

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a reasonable endeavor comply law , ensure qualified candidates of races have fair opportunity compete not congress meant interdict. therefore hold employer jettisons selection device when disproportionate racial impact becomes apparent not violate title vii’s disparate-treatment bar automatically or @ all, subject key condition: employer must have cause believe device not withstand examination business necessity. cf. faragher v. boca raton, 524 u. s. 775, 806 (1998) (observing accords “clear statutory policy” employers “to prevent violations” , “make reasonable efforts discharge duty” under title vii).

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to “reconcile” supposed “conflict” between disparate treatment , disparate impact, court offers enigmatic standard. ante, @ 20. employers may attempt comply title vii’s disparate-impact provision, court declares, there “strong basis in evidence” documenting necessity of action. ante, @ 22. court’s standard, drawn inapposite equal protection precedents, not elaborated. 1 left wonder cases meet standard , why court sure case not.

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in construing title vii, note preliminarily, equal protection doctrine of limited utility. equal protection clause, court has held, prohibits intentional discrimination; not have disparate-impact component. see personnel administrator of mass. v. feeney, 442 u. s. 256, 272 (1979); washington v. davis, 426 u. s. 229, 239 (1976). title vii, in contrast, aims eliminate forms of employment discrimination, unintentional deliberate. until today, cf. ante, @ 25; ante, p. 1 (scalia, j., concurring), court has never questioned constitutionality of disparate-impact component of title vii, , reason. instructing employers avoid needlessly exclusionary selection processes, title vii’s disparate-impact provision calls “race-neutral means increase minority … participation”—something court’s equal protection precedents encourage. see adarand constructors, inc. v. peña, 515 u. s. 200, 238 (1995) (quoting richmond v. j. a. croson co., 488 u. s. 469, 507 (1989)). “the radicalism of holding disparate impact doctrine unconstitutional matter of equal protection,” moreover, “suggests uncompromising court issue such decision.” primus, equal protection , disparate impact: round three, 117 harv. l. rev. 493, 585 (2003).

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this case presents unfortunate situation, 1 new haven might have avoided had utilized better selection process in first place. case not present race-based discrimination in violation of title vii. dissent court’s judgment, rests on false premise respondents showed “a significant statistical disparity,” “nothing more.” see ante, @ 27–28.