Ricci v. DeSTEFANO, 557 U.S. 557 (2009)

Never mind the flawed tests New Haven used and the better selection methods used elsewhere, Justice Alito’s concurring opinion urges. Overriding all else, racial politics, fired up by a strident African-American pastor, were at work in New Haven. See ante, at 599-604. Even a detached and disinterested observer, however, would have every reason to ask: Why did such racially skewed results occur in New Haven, when better tests likely would have produced less disproportionate results?

The Court’s disparate-impact analysis rested on two provisions of Title VII: § 703(a)(2), which made it unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin”; and § 703(h), which permitted employers “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, intended or used to discriminate because of race, color, religion, sex or national origin.” Griggs v. Duke Power Co., 401 U. S. 424, 426, n. 1 (1971) (quoting 78 Stat. 255, 42 U. S. C. §2000e-2(a)(2), (h) (1964 *621ed.)). See also 401 U. S., at 433-436 (explaining that § 703(h) authorizes only tests that are “demonstrably a reasonable measure of job performance”).

Never mind the flawed tests New Haven used and the better selection methods used elsewhere, Justice Alito’s concurring opinion urges. Overriding all else, racial politics, fired up by a strident African-American pastor, were at work in New Haven. See ante, at 599-604. Even a detached and disinterested observer, however, would have every reason to ask: Why did such racially skewed results occur in New Haven, when better tests likely would have produced less disproportionate results?

The Court’s disparate-impact analysis rested on two provisions of Title VII: § 703(a)(2), which made it unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin”; and § 703(h), which permitted employers “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, intended or used to discriminate because of race, color, religion, sex or national origin.” Griggs v. Duke Power Co., 401 U. S. 424, 426, n. 1 (1971) (quoting 78 Stat. 255, 42 U. S. C. §2000e-2(a)(2), (h) (1964 *621ed.)). See also 401 U. S., at 433-436 (explaining that § 703(h) authorizes only tests that are “demonstrably a reasonable measure of job performance”).

See also Dothard v. Rawlinson, 433 U. S. 321, 332, n. 14 (1977) (“a discriminatory employment practice must be shown to be necessary to safe and efficient job performance to survive a Title VII challenge”); Williams v. Colorado Springs, Colo., School Dist., 641 F. 2d 835, 840-841 (CA10 1981) (“The term ‘necessity’ connotes that the exclusionary practice must be shown to be of great importance to job performance.”); Kirby v. Colony Furniture Co., 613 F. 2d 696, 705, n. 6 (CA8 1980) (“the proper standard for determining whether ‘business necessity’ justifies a practice which has a racially discriminatory result is not whether it is justified by routine business considerations but whether there is a compelling need for the employer to maintain that practice and whether the employer can prove there is no alternative to the challenged practice”); Pettway v. American Cast Iron Pipe Co., 494 F. 2d 211, 244, n. 87 (CA5 1974) (“this doctrine of business necessity ... connotes an irresistible demand” (inter*623nal quotation marks omitted)); United States v. Bethlehem, Steel Corp., 446 F. 2d 652, 662 (CA2 1971) (an exclusionary practice “must not only directly foster safety and efficiency of a plant, but also be essential to those goals”); Robinson v. Lorillard Corp., 444 F. 2d 791, 798 (CA4 1971) (“The test is whether there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.”).

See, e.g., Nash v. Jacksonville, 837 F. 2d 1534 (CA11 1988), vacated, 490 U. S. 1103 (1989), opinion reinstated, 905 F. 2d 355 (1990); Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv., 832 F. 2d 811 (CA3 1987); Guardians Assn. of N. Y. City Police Dept. v. Civil Serv. Comm’n, 630 F. 2d 79 (CA2 1980); Ensley Branch of NAACP v. Seibels, 616 F. 2d 812 (CA5 1980); Firefighters Inst. for Racial Equality v. St. Louis, 616 F. 2d 350 (CA8 1980); Boston Chapter, NAACP, Inc. v. Beecher, 504 F. 2d 1017 (CA1 1974).

What was the “business necessity” for the tests New Haven used? How could one justify, e. g., the 60/40 written/oral ratio, see supra, at 611-612, 614-615, under that standard? Neither the Court nor the concurring opinions attempt to defend the ratio.

Even in Title VII cases involving race-conscious (or gender-conscious) affirmative-action plans, the Court has never proposed a strong-basis-inevidenee standard. In Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616 (1987), the Court simply examined the municipal employer’s action for reasonableness: “Given the obvious imbalance in the Skilled Craft category, and given the Agency’s commitment to eliminating such imbalances, it was plainly not unreasonable for the Agency ... to consider as one factor the sex of [applicants] in making its decision.” Id., at 637. See also Firefighters v. Cleveland,, 478 U. S. 501, 516 (1986) (“Title VII permits employers and unions voluntarily to make use of reasonable race-conscious affirmative action.”).

Notably, prior decisions applying a strong-basis-in-evidence standard have not imposed a burden as heavy as the one the Court imposes today. In Croson, the Court found no strong basis in evidence because the city *630had offered “nothing approaching a prima facie case.” Richmond v. J. A. Croson Co., 488 U. S. 469, 500 (1989). The Court did not suggest that anything beyond a prima facie ease would have been required. In the context of race-based electoral districting, the Court has indicated that a “strong basis” exists when the “threshold conditions” for liability are present. Bush v. Vera, 517 U. S. 952, 978 (1996) (plurality opinion).

Infecting the Court’s entire analysis is its insistence that the City rejected the test results “in sole reliance upon race-based statistics.” Ante, at 584. See also ante, at 580, 587. But as the part of the story the Court leaves out, see supra, at 609-618, so plainly shows — the long history of rank discrimination against African-Americans in the firefighting profession, the multiple flaws in New Haven’s test for promotions — “sole reliance” on statistics certainly is not descriptive of the CSB’s decision.

The Court’s refusal to remand for further proceedings also deprives respondents of an opportunity to invoke 42 U. S. C. §2000e-12(b) as a shield to liability. Section 2000e-12(b) provides: “In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the [EEOC] .... Such a defense, if established, shall be a bar to the action or proceeding, notwithstanding that (A) after such act or omission, such interpretation or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect....” Specifically, given the chance, respondents might have called attention to the EEOC guidelines set out in 29 CFR §§ 1608.3 and 1608.4 (2008). The guidelines recognize that employers may “take affirmative action based on an analysis which reveals facts constituting actual or potential adverse impact.” § 1608.3(a). If “affirmative action” is in order, so is the lesser step of discarding a dubious selection device.

The lower courts focused on respondents’ “intent” rather than on whether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.

This alone would have posed a substantial problem for New Haven in a disparate-impact suit, particularly in light of the disparate results the City’s scheme had produced in the past. See supra, at 614. Under the *633Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines), employers must conduct “an investigation of suitable alternative selection procedures.” 29 CFR § 1607.3(B). See also Officers for Justice v. Civil Serv. Comm’n, 979 F. 2d 721, 728 (CA9 1992) (“before utilizing a procedure that has an adverse impact on minorities, the City has an obligation pursuant to the Uniform Guidelines to explore alternative procedures and to implement them if they have less adverse impact and are substantially equally valid”). It is no answer to “presume” that the two-decades-old 60/40 formula was adopted for a “rational reason” because it “was the result of a union-negotiated collective-bargaining agreement.” Cf. ante, at 589. That the parties may have been “rational” says nothing about whether their agreed-upon selection process was consistent with business necessity. It is not at all unusual for agreements negotiated between employers and unions to run afoul of Title VII. See, e. g., Peters v. Missouri-Pacific R. Co., 483 F. 2d 490, 497 (CA5 1973) (an employment practice “is not shielded [from the requirements of Title VII] by the facts that it is the product of collective bargaining and meets the standards of fair representation”).

See also Nash, 837 F. 2d, at 1538 (“the examination did not test the one aspect of job performance that differentiated the job of firefighter engineer from fire lieutenant (combat): supervisory skills”); Firefighters Inst. for Racial Equality v. St. Louis, 549 F. 2d 506, 512 (CA8 1977) (“there is no good pen and paper test for evaluating supervisory skills”); Boston Chapter, NAACP, 504 F. 2d, at 1023 (“[T]here is a difference between memorizing . . . fire fighting terminology and being a good fire fighter. If the Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocabulary, the team might acquire [players] who could not bat, pitch or catch.”).

Cf. Gillespie v. Wisconsin, 771 F. 2d 1035, 1043 (CA7 1985) (courts must evaluate “the degree to which the nature of the examination procedure approximates the job conditions”). In addition to “content validity,” the Uniform Guidelines discuss “construct validity” and “criterion validity” as means by which an employer might establish the reliability of a selection method. See 29 CFR § 1607.14(B)-(D). Content validity, however, is the only type of validity addressed by the parties and “the only feasible type of validation in these circumstances.” Brief for Industrial-Organizational Psychologists as Amicus Curiae 7, n. 2 (hereinafter 1-0 Psychologists Brief).

See also G. Thornton & D. Rupp, Assessment Centers in Human Resource Management 15 (2006) (“Assessment centers predict future success, do not cause adverse impact, and are seen as fair by participants.”); W. Cascio & H. Aguinis, Applied Psychology in Human Resource Management 372 (6th ed. 2005) (“research has demonstrated that adverse impact is less of a problem in an [assessment center] as compared to an aptitude test”). Cf. Firefighters Inst. for Racial Equality, 549 F. 2d, at 513 (recommending assessment centers as an alternative to written exams).

Finding the evidence concerning these alternatives insufficiently developed to “create a genuine issue of fact,” ante, at 591, the Court effectively confirms that an employer cannot prevail under its strong-basis-*636in-evidence standard unless the employer decisively proves a disparate-impact violation against itself. The Court’s specific arguments are unavailing. First, the Court suggests, changing the oral/written weighting may have violated Title VII’s prohibition on altering test scores. Ante, at 590. No one is arguing, however, that the results of the exams given should have been altered. Rather, the argument is that the City could have availed itself of a better option when it initially decided what selection process to use. Second, with respect to assessment centers, the Court identifies “statements to the CSB indicat[ing] that the Department could not have used [them] for the 2003 examinations.” Ante, at 591. The Court comes up with only a single statement on this subject — an offhand remark made by petitioner Ricci, who hardly qualifies as an expert in testing methods. See ante, at 574. Given the large number of municipalities that regularly use assessment centers, it is impossible to fathom why the City, with proper planning, could not have done so as well.

The I-O Psychologists Brief identifies still other, more technical flaws in the exams that may well have precluded the City from prevailing in a *638disparate-impaet suit. Notably, the exams were never shown to be suitably precise to allow strict rank ordering of candidates. A difference of one or two points on a multiple-choice exam should not be decisive of an applicant’s promotion chances if that difference bears little relationship to the applicant’s qualifications for the job. Relatedly, it appears that the fine between a passing and failing score did not accurately differentiate between qualified .and unqualified candidates. A number of fire-officer promotional exams have been invalidated on these bases. See, e. g., Guardians Assn., 630 F. 2d, at 105 (“When a cutoff score unrelated to job performance produces disparate racial results, Title VII is violated.”); Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv., 625 F. Supp. 527, 538 (NJ 1985) (“[T]he tests here at issue are not appropriate for ranking candidates.”).

Some of petitioners’ so-called facts find little support in the record, and many others can scarcely be deemed material. Petitioners allege, for example, that City officials prevented New Haven’s fire chief and assistant chief from sharing their views about the exams with the CSB. App. to Pet. for Cert. in No. 07-1428, p. 228a. None of the materials petitioners dte, however, “suggests” that this proposition is accurate. Cf. ante, at 600. In her deposition testimony, City official Karen Dubois-Walton specifically denied that she or her colleagues directed the chief and assistant chief not to appear. App. to Pet. for Cert. in No. 07-1428, p. 850a. Moreover, contrary to the insinuations of petitioners and Justice Alito, the statements made by City officials before the CSB did not emphasize allegations of cheating by test takers. Cf. ante, at 602-603. In her deposition, Dubois-Walton acknowledged sharing the cheating allegations not with the CSB, but with a different City commission. App. to Pet. for Cert. in No. 07-1428, p. 837a. Justice Alito also reports that the City’s attorney advised the mayor’s team that the way to convince the CSB not to certify was “to focus on something other than 'a big discussion re: adverse impact’ law.” Ante, at 603 (quoting App. to Pet. for Cert. in No. 07-1428, *640p. 458a). This is a misleading abbreviation of the attorney’s advice. Focusing on the exams’ defects and on disparate-impact law is precisely what he recommended. See id., at 458a-459a.

City officials, Justice Alito reports, sent Hornick newspaper accounts and other material about the exams prior to his testimony. Ante, at 603. Some of these materials, Justice Alito intimates, may have given Hornick an inaccurate portrait of the exams. But Hornick’s testimony before the CSB, viewed in full, indicates that Hornick had an accurate understanding of the exam process. Much of Horniek’s analysis focused on the 60/40 weighting of the written and oral exams, something that neither the Court nor the concurrences even attempt to defend. It is, moreover, entirely misleading to say that the City later hired union-proposed Hornick as a “rewar[d]” for his testimony. Cf. ibid.

To be dear, the board of fibre commissioners on which Kimber served is an entity separate from the CSB. Kimber was not a member of the CSB. Kimber, Justice Auto states, requested a private meeting with the CSB. Ante, at 601. There is not a shred of evidence that a private meeting with Kimber or anyone else took place.

Justice Auto points to evidence that the mayor had decided not to make promotions based on the exams even if the CSB voted to certify the results, going so far as to prepare a press release to that effect. Ante, at 604. If anything, this evidence reinforces the conclusion that the CSB — which made the noneertification decision — remained independent and above the political fray. The mayor and his staff needed a contingency plan precisely because they did not control the CSB.

The District Court, Justice Alito writes, “all but conceded that a jury could find that the City’s asserted justification was pretextual” by “admitting] that 'a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur .the wrath of *644[Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.’” Ante, at 598, 608 (quoting 554 F. Supp. 2d, at 162). The District Court drew the quoted passage from petitioners’ lower court brief, and used it in reference to a First Amendment claim not before this Court. In any event, it is not apparent why these alleged political maneuvers suggest an intent to discriminate against petitioners. That City officials may have wanted to please political supporters is entirely consistent with their stated desire to avoid a disparate-impact violation. Cf. Ashcroft v. Iqbal, 556 U. S. 662, 682 (2009) (allegations that senior Government officials condoned the arrest and detention of thousands of Arab Muslim men following the September 11 attacks failed to establish even a “plausible inference” of unlawful discrimination sufficient to survive a motion to dismiss).

Together with No. 08-328, Ricci et al. v. DeStefano et al., also on certiorari to the same court.

Briefs of amici curiae urging reversal in both cases were filed for the American Civil Rights Union by Peter J. Ferrara; for Bridgeport Fire*561fighters for Merit Employment, Inc., by Stewart I. Edelstein; for the Cato Institute et al. by Ilya Shapiro and Manuel S. Klausner; for the Center for Individual Rights et al. by Michael E. Rosman; for the Concerned American Firefighters Association, Philadelphia Chapter, by Gregory J. Sullivan; for the Eagle Forum Education and Legal Defense Fund by Douglas G. Smith; for Law Professors et al. by Martin S. Kaufman; for the Mountain States Legal Foundation by J. Scott Detamore; for the National Association of Police Organizations by Scott M. Abeles; for the Pacific Legal Foundation et al. by Sharon L. Browne, Alan W. Foutz, and Steven G. Gieseler; and for Joe Oaldey et al. by Henry C. Shelton III, Brian S. Faughnan, and Emily C. Taube. Briefs of amici curiae urging affirmance in both cases were filed for the State of Maryland et al. by Douglas F. Gansler, Attorney General of Maryland, Austin C. Schlick, Steven M. Sullivan, and Michele J. McDonald, by Richard A. Svobodny, Acting Attorney General of Alaska, and by the Attorneys General for their respective States as follows: Dustin McDaniel of Arkansas, Tom Miller of Iowa, Catherine Cortez Masto of Nevada, and Mark L. Shurtleff of Utah; for the American Civil Liberties Union et al. by Kevin K Russell, Amy Howe, Pamela S. Karlan, Jeffrey L. Fisher, Steven R. Shapiro, and Dennis D. Parker; for the Asian American Justice Center et al. by Vincent A. Eng and Karen K. Narasaki; for the Equal Employment Advisory Council by Rae T Vann, Jeffrey A. Norris, and Lorence L. Kessler; for Industrial-Organizational Psychologists by David C. Frederick and Derek T. Ho; for the International Association of Black Professional Fire Fighters et al. by Christy B. Bishop and Dennis R. Thompson; for the International Association of Hispanic Firefighters et al. by Marcia L. McCormick; for the International Municipal Lawyers Association et al. by Andrew J. Pincus and Charles Rothfeld; for the Lawyers’ Committee for Civil Rights Under Law et al. by Michael L. Foreman, Sarah Crawford, Catherine Sun Wood, Marc H. Morial, Angela Ciccolo, and Eva Paterson; for the NAACP Legal Defense & Educational Fund, Inc., by John Payton, Jacqueline A Berrien, Debo P. Adegbile, Matthew Colangelo, and Joshua Civin; for the National Partnership for Women & Families et al. by Helen Norton, Judith L. Lichtman, Marcia D. Greenberger, and Jocelyn Samuels; for the New York Law School Racial Justice Project by Elise C. Boddie; for the Opportunity Agenda by Ankur J. Goel and Alan Jenkins; and for the Society for Human Resource Man*562agement by Samuel Estreicher, Meir Feder, Donald B. Ayer, and Lawrence D. Rosenberg. Briefs of amici curiae were filed in both cases for the Anti-Defamation League by Michael F. Smith, Martin E. Karlinsky, Howard W. Goldstein, Steven M. Freeman, and Steven C. Sheinberg; for the Claremont Institute Center for Constitutional Jurisprudence by John C. Eastman and Edwin Meese III; and for Kedar Bhatia by Alan Sager.