Ricci v. DeSteffano: Talk about A Rock And A Hard Place: Employers Required To Pick Between Disparate Treatment and Disparate Impact Claims

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On June 29, 2009, Justice Kennedy, writing for a 5-4 majority of the U.S. Supreme Court, issued the long-awaited decision in Ricci v. DeSteffano, a "reverse race discrimination" case arising out of the City of New Haven, Connecticut's Civil Service Board's ("CSB") decision not to use the results of promotional examinations. The Court held that CSB engaged in disparate treatment race discrimination against white firefighters when it decided not to certify test results showing a disparate impact on certain firefighters of color.1 In making its decision, the CSB considered evidence that the selection process may not have been job-related and consistent with business necessity and that an alternative employment practice having less of a disparate impact and serving its legitimate business needs could have been utilized.

Because establishing the aforementioned factors would be critical to CSB's ability to fend off a future disparate impact claim by minority firefighters and there was apparent concern about CSB's ability to do so, it elected not to use the examination results. The U.S. Supreme Court held that CSB's evidence was insufficient to support its concerns about potential disparate impact liability and, consequently, the test results should have been certified.

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