The Supreme Court’s ruling last week that white firefighters in New Haven were discriminated against because of their race when the city threw out the results of a promotional exam was the correct decision.
But business leaders should not see the court’s ruling as an opportunity to discriminate in hiring, or in the treatment of employees, based on race or ethnicity.
In the New Haven case, the court ruled that the city’s actions violated the Civil Rights Act of 1964. The case essentially came down to whether the city could show that the results of the 2003 promotional exam, in which no black firefighters scored high enough to be promoted, constituted a “disparate impact” — that is a result that was discriminatory regardless of intent.
The city claimed that because the results did indeed meet that threshold, it faced a lawsuit from black firefighters if it didn’t throw them out.
When enacted in 1964, Title VII of the Civil Rights Act held employers liable only for “disparate treatment” on the basis of race, color, religion, sex or national origin. In the 1971 case, Griggs v. Duke Power Co., the Supreme Court interpreted Title VII as prohibiting employer practices that weren’t discriminatory on their face but were discriminatory as a practical matter — changing the “disparate treatment” threshold to “disparate impact.” The 1971 ruling also concluded that employers whose actions result in a disparate impact had to show that those actions arose from “business necessity.”
The Supreme Court, in a 5-4 decision along political lines, concluded that New Haven did not have the legal right to stop the promotions because it feared a lawsuit from the black firefighters.
“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 said in a ruling written by Justice Anthony M. Kennedy.
Clearly, the Court has moved the Title VII debate back toward the pre-1971 standards. The ruling may make it more difficult for employees to prove they’ve been discriminated against based on the impact of an employer’s actions.
After the ruling, legal experts quickly warned private businesses.Daniel P. Westman, a Washington, D.C.-area lawyer who works extensively in labor and employment law, told the New York Times: “This is a ruling that every business covered by Title VII will need to take into account. Some companies may have thought this was just a public sector firefighter case that would not apply outside the government employment context, but that is not the case.” Mr. Westman said the decision could affect hiring, firing and discipline in the workplace, as well as promotions. And because of that, private employers need to examine how the ruling affects their policies in those areas while continuing to strive for a workplace that reflects the communities they serve.
It would be deeply regrettable for any private employer to believe the Supreme Court ruling provides them with a chance to take less seriously their obligations to treat everyone fairly during the hiring period or after.
In her dissent, Justice Ruth Bader Ginsburg noted that “Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow.” She alluded to a report by the United States Civil Rights Commission in the early 1970s finding racial discrimination in municipal employment “more pervasive than in the private sector.”
That is likely still the case today. It is up to the private sector to continue to make fair hiring and treatment a priority, regardless of how the Supreme Court ruling is perceived.
