Ricci v. DeStefano

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
RICCI ET AL. v. DESTEFANO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 07–1428. Argued April 22, 2009—Decided June 29, 2009*
New Haven, Conn. (City), uses objective examinations to identify those
firefighters best qualified for promotion. When the results of such an
exam to fill vacant lieutenant and captain positions showed that
white candidates had outperformed minority candidates, a rancorous
public debate ensued. Confronted with arguments both for and
against certifying the test results—and threats of a lawsuit either
way—the City threw out the results based on the statistical racial
disparity. Petitioners, white and Hispanic firefighters who passed
the exams but were denied a chance at promotions by the City’s re
fusal to certify the test results, sued the City and respondent officials,
alleging that discarding the test results discriminated against them
based on their race in violation of, inter alia, Title VII of the Civil
Rights Act of 1964. The defendants responded that had they certified
the test results, they could have faced Title VII liability for adopting
a practice having a disparate impact on minority firefighters. The
District Court granted summary judgment for the defendants, and
the Second Circuit affirmed.
Held: The City’s action in discarding the tests violated Title VII.
Pp. 16–34.
(a) Title VII prohibits intentional acts of employment discrimina
tion based on race, color, religion, sex, and national origin, 42 U.S. C.
§2000e–2(a)(1) (disparate treatment), as well as policies or practices
that are not intended to discriminate but in fact have a dispropor
tionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate
impact). Once a plaintiff has established a prima facie case of dispa
——————
* Together with No. 08–328, Ricci et al. v. DeStefano et al., also on
certiorari to the same court.
2 RICCI v. DESTEFANO
Syllabus
rate impact, the employer may defend by demonstrating that its
policy or practice is “job related for the position in question and con
sistent with business necessity.” Ibid. If the employer meets that
burden, the plaintiff may still succeed by showing that the employer
refuses to adopt an available alternative practice that has less dispa
rate impact and serves the employer’s legitimate needs. §§2000e–
2(k)(1)(A)(ii) and (C). Pp. 17–19.
(b) 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 li
ability if it fails to take the race-conscious, discriminatory action.
The Court’s analysis begins with the premise that the City’s actions
would violate Title VII’s disparate-treatment prohibition absent some
valid defense. All the evidence demonstrates that the City rejected
the test results because the higher scoring candidates were white.
Without some other justification, this express, race-based decision
making is prohibited. The question, therefore, is whether the pur
pose to avoid disparate-impact liability excuses what otherwise would
be prohibited disparate-treatment discrimination. The Court has
considered cases similar to the present litigation, but in the context
of the Fourteenth Amendment’s Equal Protection Clause. Such cases
can provide helpful guidance in this statutory context. See Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 993. In those cases, the
Court held that certain government actions to remedy past racial dis
crimination—actions that are themselves based on race—are consti
tutional only where there is a “strong basis in evidence” that the re
medial actions were necessary. Richmond v. J. A. Croson Co., 488
U.S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U.S. 267,
277. In announcing the strong-basis-in-evidence standard, the Wy
gant plurality recognized the tension between eliminating segrega
tion and discrimination on the one hand and doing away with all gov
ernmentally imposed discrimination based on race on the other. 476
U. S., at 277. It reasoned that “[e]videntiary support for the conclu
sion that remedial action is warranted becomes crucial when the re
medial program is challenged in court by nonminority employees.”
Ibid. The same interests are at work in the interplay between Title
VII’s disparate-treatment and disparate-impact provisions. Apply
ing the strong-basis-in-evidence standard to Title VII gives effect to
both provisions, allowing violations of one in the name of compliance
with the other only in certain, narrow circumstances. It also allows
the disparate-impact prohibition to work in a manner that is consis
tent with other Title VII provisions, including the prohibition on ad
justing employment-related test scores based on race, see §2000e–
Cite as: 557 U. S. ____ (2009) 3
Syllabus
2(l), and the section that expressly protects bona fide promotional ex
ams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in
evidence standard as a matter of statutory construction in order to
resolve any conflict between Title VII’s disparate-treatment and dis
parate-impact provisions. Pp. 19–26.
(c) The City’s race-based rejection of the test results cannot satisfy
the strong-basis-in-evidence standard. Pp. 26–34.
(i) The racial adverse impact in this litigation was significant,
and petitioners do not dispute that the City was faced with a prima
facie case of disparate-impact liability. The problem for respondents
is that such a prima facie case—essentially, a threshold showing of a
significant statistical disparity, Connecticut v. Teal, 457 U.S. 440,
446, and nothing more—is far from a strong basis in evidence that
the City would have been liable under Title VII had it certified the
test results. That is because the City could be liable for disparate
impact discrimination only if the exams at issue were not job related
and consistent with business necessity, or if there existed an equally
valid, less discriminatory alternative that served the City’s needs but
that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the
record the parties developed through discovery, there is no substan
tial basis in evidence that the test was deficient in either respect.
Pp. 26–28.
(ii) The City’s assertions that the exams at issue were not job re
lated and consistent with business necessity are blatantly contra
dicted by the record, which demonstrates the detailed steps taken to
develop and administer the tests and the painstaking analyses of the
questions asked to assure their relevance to the captain and lieuten
ant positions. The testimony also shows that complaints that certain
examination questions were contradictory or did not specifically ap
ply to firefighting practices in the City were fully addressed, and that
the City turned a blind eye to evidence supporting the exams’ valid
ity. Pp. 28–29.
(iii) Respondents also lack a strong basis in evidence showing an
equally valid, less discriminatory testing alternative that the City, by
certifying the test results, would necessarily have refused to adopt.
Respondents’ three arguments to the contrary all fail. First, respon
dents refer to testimony that a different composite-score calculation
would have allowed the City to consider black candidates for then
open positions, but they have produced no evidence to show that the
candidate weighting actually used was indeed arbitrary, or that the
different weighting would be an equally valid way to determine
whether candidates are qualified for promotions. Second, respon
dents argue that the City could have adopted a different interpreta
tion of its charter provision limiting promotions to the highest scoring
4 RICCI v. DESTEFANO
Syllabus
applicants, and that the interpretation would have produced less dis
criminatory results; but respondents’ approach would have violated
Title VII’s prohibition of race-based adjustment of test results,
§2000e–2(l). Third, testimony asserting that the use of an assess
ment center to evaluate candidates’ behavior in typical job tasks
would have had less adverse impact than written exams does not aid
respondents, as it is contradicted by other statements in the record
indicating that the City could not have used assessment centers for
the exams at issue. Especially when it is noted that the strong-basis
in-evidence standard applies to this case, respondents cannot create a
genuine issue of fact based on a few stray (and contradictory) state
ments in the record. Pp. 29–33.
(iv) 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. Discarding the test results was impermis
sible under Title VII, and summary judgment is appropriate for peti
tioners on their disparate-treatment claim. If, after it certifies the
test results, the City faces a disparate-impact suit, then in light of
today’s holding the City can 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. Pp. 33–34.
530 F.3d 87, reversed and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a
concurring opinion. ALITO, J., filed a concurring opinion, in which
SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opin
ion, in which STEVENS, SOUTER, and BREYER, JJ., joined.
Cite as: 557 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–1428 and 08–328
_________________
FRANK RICCI, ET AL., PETITIONERS
07–1428 v.
JOHN DESTEFANO ET AL.
FRANK RICCI, ET AL., PETITIONERS
08–328 v.
JOHN DESTEFANO ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
JUSTICE KENNEDY delivered the opinion of the Court.
In the fire department of New Haven, Connecticut—as
in emergency-service agencies throughout the Nation—
firefighters prize their promotion to and within the officer
ranks. An agency’s officers command respect within the
department and in the whole community; and, of course,
added responsibilities command increased salary and
benefits. Aware of the intense competition for promotions,
New Haven, like many cities, relies on objective examina
tions to identify the best qualified candidates.
In 2003, 118 New Haven firefighters took examinations
to qualify for promotion to the rank of lieutenant or cap
tain. Promotion examinations in New Haven (or City)
were infrequent, so the stakes were high. 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 stud
2 RICCI v. DESTEFANO
Opinion of the Court
ied for months, at considerable personal and financial cost.
When the examination results showed that white candi
dates 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 per
formance sued the City and some of its officials. Theirs is
the suit now before us. The suit alleges that, by discard
ing the test results, the City and the named officials dis
criminated against the plaintiffs based on their race, in
violation of both Title VII of the Civil Rights Act of 1964,
78 Stat. 253, as amended, 42 U.S. C. §2000e et seq., and
the Equal Protection Clause of the Fourteenth Amend
ment. 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.
The District Court granted summary judgment for the
defendants, and the Court of Appeals affirmed.
We conclude that race-based action like the City’s in this
case is impermissible under Title VII unless the employer
can demonstrate a strong basis in evidence that, had it not
taken the action, it would have been liable under the
disparate-impact statute. The respondents, we further
determine, cannot meet that threshold standard. As a
Cite as: 557 U. S. ____ (2009) 3
Opinion of the Court
result, the City’s action in discarding the tests was a
violation of Title VII. In light of our ruling under the
statutes, we need not reach the question whether respon
dents’ actions may have violated the Equal Protection
Clause.
I
This litigation comes to us after the parties’ cross
motions for summary judgment, so we set out the facts in
some detail. As the District Court noted, although “the
parties strenuously dispute the relevance and legal import
of, and inferences to be drawn from, many aspects of this
case, the underlying facts are largely undisputed.” 554
F. Supp. 2d 142, 145 (Conn. 2006).
A
When the City of New Haven undertook to fill vacant
lieutenant and captain positions in its fire department
(Department), the promotion and hiring process was gov
erned by the city charter, in addition to federal and state
law. The 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 de
termined by job-related examinations. After each exami
nation, 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. Certified promotional lists
remain valid for two years.
The City’s contract with the New Haven firefighters’
union specifies additional requirements for the promotion
process. Under the 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
4 RICCI v. DESTEFANO
Opinion of the Court
total score. To sit for the examinations, candidates for
lieutenant needed 30 months’ experience in the Depart
ment, a high-school diploma, and certain vocational train
ing courses. Candidates for captain needed one year’s
service as a lieutenant in the Department, a high-school
diploma, and certain vocational training courses.
After reviewing bids from various consultants, 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 special
izes in designing entry-level and promotional examina
tions 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. IOS
representatives interviewed incumbent captains and
lieutenants and their supervisors. They rode with and
observed other on-duty officers. Using information from
those interviews and ride-alongs, IOS wrote job-analysis
questionnaires and administered them to most of the
incumbent battalion chiefs, captains, and lieutenants in
the Department. 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 devel
oped the written examinations to measure the candidates’
job-related knowledge. For each test, IOS compiled a list
of training manuals, Department procedures, and other
materials to use as sources for the test questions. IOS
presented the proposed sources to the New Haven fire
chief and assistant fire chief for their approval. Then,
using the approved sources, IOS drafted a multiple-choice
test for each position. Each test had 100 questions, as
Cite as: 557 U. S. ____ (2009) 5
Opinion of the Court
required by CSB rules, and was written below a 10th
grade reading level. 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, in
cluding the specific chapters from which the questions
were taken.
IOS developed the oral examinations as well. These
concentrated on job skills and abilities. Using the job
analysis information, IOS wrote hypothetical situations to
test incident-command skills, firefighting tactics, interper
sonal skills, leadership, and management ability, among
other things. Candidates would be presented with these
hypotheticals and asked to respond before a panel of three
assessors.
IOS assembled a pool of 30 assessors who were superior
in rank to the positions being tested. At the City’s insis
tence (because of controversy surrounding previous ex
aminations), all the assessors came from outside Connecti
cut. IOS submitted the assessors’ resumes to City officials
for approval. They were battalion chiefs, assistant chiefs,
and chiefs from departments of similar sizes to New Ha
ven’s throughout the country. Sixty-six percent of the
panelists were minorities, and each of the nine three
member assessment panels contained two minority mem
bers. IOS trained the panelists for several hours on the
day before it administered the examinations, teaching
them how to score the candidates’ responses consistently
using checklists of desired criteria.
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. 554 F. Supp. 2d, at 145. Eight
lieutenant positions were vacant at the time of the exami
nation. As the rule of three operated, this meant that the
top 10 candidates were eligible for an immediate promo
6 RICCI v. DESTEFANO
Opinion of the Court
tion to lieutenant. All 10 were white. Ibid. Subsequent
vacancies would have allowed at least 3 black candidates
to be considered for promotion to lieutenant.
Forty-one candidates completed the captain examina
tion—25 whites, 8 blacks, and 8 Hispanics. Of those, 22
candidates passed—16 whites, 3 blacks, and 3 Hispanics.
Ibid. 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. Ibid.
B
The City’s contract with IOS contemplated that, after
the examinations, IOS would prepare a technical report
that described the examination processes and methodolo
gies and analyzed the results. But in January 2004,
rather than requesting the technical report, City officials,
including the City’s counsel, Thomas Ude, convened a
meeting with IOS Vice President Chad Legel. (Legel was
the leader of the IOS team that developed and adminis
tered the tests.) Based on the test results, the City offi
cials expressed concern that the tests had discriminated
against minority candidates. Legel defended the examina
tions’ validity, stating that any numerical disparity be
tween white and minority candidates was likely due to
various external factors and was in line with results of the
Department’s previous promotional examinations.
Several days after the meeting, Ude sent a letter to the
CSB purporting to outline its duties with respect to the
examination results. Ude stated that under federal law,
“a statistical demonstration of disparate impact,” standing
alone, “constitutes a sufficiently serious claim of racial
discrimination to serve as a predicate for employer
initiated, voluntar[y] remedies—even . . . race-conscious
remedies.” App. to Pet. for Cert. in No. 07–1428, p. 443a;
see also 554 F. Supp. 2d, at 145 (issue of disparate impact
Cite as: 557 U. S. ____ (2009) 7
Opinion of the Court
“appears to have been raised by . . . Ude”).
1
The CSB first met to consider certifying the results on
January 22, 2004. Tina Burgett, director of the City’s
Department of Human Resources, opened the meeting by
telling the CSB that “there is a significant disparate im
pact on these two exams.” App. to Pet. for Cert. in No. 07–
1428, at 466a. She distributed lists showing the candi
dates’ races and scores (written, oral, and composite) but
not their names. Ude also described the test results as
reflecting “a very significant disparate impact,” id., at
477a, and he outlined possible grounds for the CSB’s
refusing to certify the results.
Although they did not know whether they had passed or
failed, some firefighter-candidates spoke at the first CSB
meeting in favor of certifying the test results. Michael
Blatchley stated that “[e]very one” of the questions on the
written examination “came from the [study] material. . . .
[I]f you read the materials and you studied the material,
you would have done well on the test.” App. in No. 06–
4996–cv (CA2), pp. A772–A773 (hereinafter CA2 App.).
Frank Ricci stated that the test questions were based on
the Department’s own rules and procedures and on “na
tionally recognized” materials that represented the “ac
cepted standard[s]” for firefighting. Id., at A785–A786.
Ricci stated that he had “several learning disabilities,”
including dyslexia; that he had spent more than $1,000 to
purchase the materials and pay his neighbor to read them
on tape so he could “give it [his] best shot”; and that he
had studied “8 to 13 hours a day to prepare” for the test.
Id., at A786, A789. “I don’t even know if I made it,” Ricci
told the CSB, “[b]ut the people who passed should be
promoted. When your life’s on the line, second best may
not be good enough.” Id., at A787–A788.
Other firefighters spoke against certifying the test
8 RICCI v. DESTEFANO
Opinion of the Court
results. They described the test questions as outdated or
not relevant to firefighting practices in New Haven. Gary
Tinney stated that source materials “came out of New
York. . . . Their makeup of their city and everything is
totally different than ours.” Id., at A774–A775; see also
id., at A779, A780–A781. And they criticized the test
materials, a full set of which cost about $500, for being too
expensive and too long.
2
At a second CSB meeting, on February 5, the president
of the New Haven firefighters’ union asked the CSB to
perform a validation study to determine whether the tests
were job-related. Petitioners’ counsel in this action argued
that the CSB should certify the results. A representative
of the International Association of Black Professional
Firefighters, Donald Day from neighboring Bridgeport,
Connecticut, “beseech[ed]” the CSB “to throw away that
test,” which he described as “inherently unfair” because of
the racial distribution of the results. Id., at A830–A831.
Another Bridgeport-based representative of the associa
tion, Ronald Mackey, stated that a validation study was
necessary. He suggested that the City could “adjust” the
test results to “meet the criteria of having a certain
amount of minorities get elevated to the rank of Lieuten
ant and Captain.” Id., at A838. At the end of this meet
ing, the CSB members agreed to ask IOS to send a repre
sentative to explain how it had developed and
administered the examinations. They also discussed
asking a panel of experts to review the examinations and
advise the CSB whether to certify the results.
3
At a third meeting, on February 11, Legel addressed the
CSB on behalf of IOS. Legel stated that IOS had previ
ously prepared entry-level firefighter examinations for the
Cite as: 557 U. S. ____ (2009) 9
Opinion of the Court
City but not a promotional examination. He explained
that IOS had developed examinations for departments in
communities with demographics similar to New Haven’s,
including Orange County, Florida; Lansing, Michigan; and
San Jose, California.
Legel explained the exam-development process to the
CSB. He began by describing the job analyses IOS per
formed of the captain and lieutenant positions—the inter
views, ride-alongs, and questionnaires IOS designed to
“generate a list of tasks, knowledge, skills and abilities
that are considered essential to performance” of the jobs.
Id., at A931–A932. He outlined how IOS prepared the
written and oral examinations, based on the job-analysis
results, to test most heavily those qualities that the re
sults indicated were “critica[l]” or “essentia[l].” Id., at
A931. And he noted that IOS took the material for each
test question directly from the approved source materials.
Legel told the CSB that third-party reviewers had scruti
nized the examinations to ensure that the written test was
drawn from the source material and that the oral test
accurately tested real-world situations that captains and
lieutenants would face. Legel confirmed that IOS had
selected oral-examination panelists so that each three
member assessment panel included one white, one black,
and one Hispanic member.
Near the end of his remarks, Legel “implor[ed] anyone
that had . . . concerns to review the content of the exam.
In my professional opinion, it’s facially neutral. There’s
nothing in those examinations . . . that should cause
somebody to think that one group would perform differ
ently than another group.” Id., at A961.
4
At the next meeting, on March 11, the CSB heard from
three witnesses it had selected to “tell us a little bit about
their views of the testing, the process, [and] the methodol
10 RICCI v. DESTEFANO
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ogy.” Id., at A1020. The first, Christopher Hornick, spoke
to the CSB by telephone. Hornick is an indus
trial/organizational psychologist from Texas who operates
a consulting business that “direct[ly]” competes with IOS.
Id., at A1029. Hornick, who had not “stud[ied] the test at
length or in detail” and had not “seen the job analysis
data,” told the CSB that the scores indicated a “relatively
high adverse impact.” Id., at A1028, A1030, A1043. He
stated that “[n]ormally, whites outperform ethnic minori
ties on the majority of standardized testing procedures,”
but that he was “a little surprised” by the disparity in the
candidates’ scores—although “[s]ome of it is fairly typical
of what we’ve seen in other areas of the countr[y] and
other tests.” Id., at A1028–A1029. Hornick stated that
the “adverse impact on the written exam was somewhat
higher but generally in the range that we’ve seen profes
sionally.” Id., at A1030–A1031.
When asked to explain the New Haven test results,
Hornick opined in the telephone conversation that the
collective-bargaining agreement’s requirement of using
written and oral examinations with a 60/40 composite
score might account for the statistical disparity. He also
stated that “[b]y not having anyone from within the
[D]epartment review” the tests before they were adminis
tered—a limitation the City had imposed to protect the
security of the exam questions—“you inevitably get things
in there” that are based on the source materials but are
not relevant to New Haven. Id., at A1034–A1035. Hor
nick suggested that testing candidates at an “assessment
center” rather than using written and oral examinations
“might serve [the City’s] needs better.” Id., at A1039–
A1040. Hornick stated that assessment centers, where
candidates face real-world situations and respond just as
they would in the field, allow candidates “to demonstrate
how they would address a particular problem as opposed
to just verbally saying it or identifying the correct option
Cite as: 557 U. S. ____ (2009) 11
Opinion of the Court
on a written test.” Ibid.
Hornick made clear that he was “not suggesting that
[IOS] somehow created a test that had adverse impacts
that it should not have had.” Id., at A1038. He described
the IOS examinations as “reasonably good test[s].” Id., at
A1041. He stated that the CSB’s best option might be to
“certify the list as it exists” and work to change the proc
ess for future tests, including by “[r]ewriting the Civil
Service Rules.” Ibid. Hornick concluded his telephonic
remarks by telling the CSB that “for the future,” his com
pany “certainly would like to help you if we can.” Id., at
A1046.
The second witness was Vincent Lewis, a fire program
specialist for the Department of Homeland Security and a
retired fire captain from Michigan. Lewis, who is black,
had looked “extensively” at the lieutenant exam and “a
little less extensively” at the captain exam. He stated that
the candidates “should know that material.” Id., at
A1048, A1052. In Lewis’s view, the “questions were rele
vant for both exams,” and the New Haven candidates had
an advantage because the study materials identified the
particular book chapters from which the questions were
taken. In other departments, by contrast, “you had to
know basically the . . . entire book.” Id., at A1053. Lewis
concluded that any disparate impact likely was due to a
pattern that “usually whites outperform some of the mi
norities on testing,” or that “more whites . . . take the
exam.” Id., at A1054.
The final witness was Janet Helms, a professor at Bos
ton College whose “primary area of expertise” is “not with
firefighters per se” but in “race and culture as they influ
ence performance on tests and other assessment proce
dures.” Id., at A1060. Helms expressly declined the CSB’s
offer to review the examinations. At the outset, she noted
that “regardless of what kind of written test we give in
this country . . . we can just about predict how many peo
12 RICCI v. DESTEFANO
Opinion of the Court
ple will pass who are members of under-represented
groups. And your data are not that inconsistent with
what predictions would say were the case.” Id., at A1061.
Helms nevertheless offered several “ideas about what
might be possible factors” to explain statistical differences
in the results. Id., at A1062. She concluded that because
67 percent of the respondents to the job-analysis question
naires were white, the test questions might have favored
white candidates, because “most of the literature on fire
fighters shows that the different groups perform the job
differently.” Id., at A1063. Helms closed by stating that
no matter what test the City had administered, it would
have revealed “a disparity between blacks and whites,
Hispanics and whites,” particularly on a written test. Id.,
at A1072.
5
At the final CSB meeting, on March 18, Ude (the City’s
counsel) argued against certifying the examination re
sults. Discussing the City’s obligations under federal law,
Ude advised the CSB that a finding of adverse impact “is
the beginning, not the end, of a review of testing proce
dures” to determine whether they violated the disparate
impact provision of Title VII. Ude focused the CSB on
determining “whether there are other ways to test for . . .
those positions that are equally valid with less adverse
impact.” Id., at A1101. Ude described Hornick as having
said that the written examination “had one of the most
severe adverse impacts that he had seen” and that “there
are much better alternatives to identifying [firefighting]
skills.” Ibid. Ude offered his “opinion that promotions . . .
as a result of these tests would not be consistent with
federal law, would not be consistent with the purposes of
our Civil Service Rules or our Charter[,] nor is it in the
best interests of the firefighters . . . who took the exams.”
Id., at A1103–A1104. He stated that previous Department
Cite as: 557 U. S. ____ (2009) 13
Opinion of the Court
exams “have not had this kind of result,” and that previ
ous results had not been “challenged as having adverse
impact, whereas we are assured that these will be.” Id., at
A1107, A1108.
CSB Chairman Segaloff asked Ude several questions
about the Title VII disparate-impact standard.
“CHAIRPERSON SEGALOFF: [M]y understanding
is the group . . . that is making to throw the exam out
has the burden of showing that there is out there an
exam that is reasonably probable or likely to have less
of an adverse impact. It’s not our burden to show that
there’s an exam out there that can be better. We’ve
got an exam. We’ve got a result. . . .
“MR. UDE: Mr. Chair, I point out that Dr. Hornick
said that. He said that there are other tests out there
that would have less adverse impact and that [would]
be more valid.
“CHAIRPERSON SEGALOFF: You think that’s
enough for us to throw this test upside-down . . . be
cause Dr. Hornick said it?
“MR. UDE: I think that by itself would be sufficient.
Yes. I also would point out that . . . it is the em
ployer’s burden to justify the use of the examination.”
Id., at A1108–A1109.
Karen DuBois-Walton, the City’s chief administrative
officer, spoke on behalf of Mayor John DeStefano and
argued against certifying the results. DuBois-Walton
stated that the results, when considered under the rule of
three and applied to then-existing captain and lieutenant
vacancies, created a situation in which black and Hispanic
candidates were disproportionately excluded from oppor
tunity. DuBois-Walton also relied on Hornick’s testimony,
asserting that Hornick “made it extremely clear that . . .
there are more appropriate ways to assess one’s ability to
serve” as a captain or lieutenant. Id., at A1120.
14 RICCI v. DESTEFANO
Opinion of the Court
Burgett (the human resources director) asked the CSB
to discard the examination results. She, too, relied on
Hornick’s statement to show the existence of alternative
testing methods, describing Hornick as having “started to
point out that alternative testing does exist” and as having
“begun to suggest that there are some different ways of
doing written examinations.” Id., at A1125, A1128.
Other witnesses addressed the CSB. They included the
president of the New Haven firefighters’ union, who sup
ported certification. He reminded the CSB that Hornick
“also concluded that the tests were reasonable and fair
and under the current structure to certify them.” Id., at
A1137. Firefighter Frank Ricci again argued for certifica
tion; he stated that although “assessment centers in some
cases show less adverse impact,” id., at A1140, they were
not available alternatives for the current round of promo
tions. It would take several years, Ricci explained, for the
Department to develop an assessment-center protocol and
the accompanying training materials. Id., at A1141.
Lieutenant Matthew Marcarelli, who had taken the cap
tain’s exam, spoke in favor of certification.
At the close of witness testimony, the CSB voted on a
motion to certify the examinations. With one member
recused, the CSB deadlocked 2 to 2, resulting in a decision
not to certify the results. Explaining his vote to certify the
results, Chairman Segaloff stated that “nobody convinced
me that we can feel comfortable that, in fact, there’s some
likelihood that there’s going to be an exam designed that’s
going to be less discriminatory.” Id., at A1159–A1160.
C
The CSB’s decision not to certify the examination re
sults 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 CSB refused to certify the
Cite as: 557 U. S. ____ (2009) 15
Opinion of the Court
test results. They include the named plaintiff, Frank
Ricci, who addressed the CSB at multiple meetings.
Petitioners sued the City, Mayor DeStefano, DuBois-
Walton, Ude, Burgett, and the two CSB members who
voted against certification. Petitioners also named as a
defendant Boise Kimber, a New Haven resident who
voiced strong opposition to certifying the results. Those
individuals are respondents in this Court. Petitioners
filed suit under Rev. Stat. §§1979 and 1980, 42 U.S. C.
§§1983 and 1985, alleging that respondents, by arguing or
voting against certifying the results, violated and con
spired to violate the Equal Protection Clause of the Four
teenth Amendment. Petitioners also filed timely charges
of discrimination with the Equal Employment Opportu
nity Commission (EEOC); upon the EEOC’s issuing right
to-sue letters, petitioners amended their complaint to
assert that the City violated the disparate-treatment
prohibition contained in Title VII of the Civil Rights Act of
1964, as amended. See 42 U.S. C. §§2000e–2(a).
The parties filed cross-motions for summary judgment.
Respondents asserted they had a good-faith belief that
they would have violated the disparate-impact prohibition
in Title VII, §2000e–2(k), had they certified the examina
tion results. It follows, they maintained, that they cannot
be held liable under Title VII’s disparate-treatment provi
sion for attempting to comply with Title VII’s disparate
impact bar. Petitioners countered that respondents’ good
faith belief was not a valid defense to allegations of dispa
rate treatment and unconstitutional discrimination.
The District Court granted summary judgment for
respondents. 554 F. Supp. 2d 142. It described petition
ers’ argument as “boil[ing] down to the assertion that if
[respondents] cannot prove that the disparities on the
Lieutenant and Captain exams were due to a particular
flaw inherent in those exams, then they should have
certified the results because there was no other alterna
16 RICCI v. DESTEFANO
Opinion of the Court
tive in place.” Id., at 156. The District Court concluded
that, “[n]otwithstanding the shortcomings in the evidence
on existing, effective alternatives, it is not the case that
[respondents] must certify a test where they cannot pin
point its deficiency explaining its disparate impact . . .
simply because they have not yet formulated a better
selection method.” Ibid. It also ruled that respondents’
“motivation to avoid making promotions based on a test
with a racially disparate impact . . . does not, as a matter
of law, constitute discriminatory intent” under Title VII.
Id., at 160. The District Court rejected petitioners’ equal
protection claim on the theory that respondents had not
acted because of “discriminatory animus” toward petition
ers. Id., at 162. It concluded that respondents’ actions
were not “based on race” because “all applicants took the
same test, and the result was the same for all because the
test results were discarded and nobody was promoted.”
Id., at 161.
After full briefing and argument by the parties, the
Court of Appeals affirmed in a one-paragraph, unpub
lished summary order; it later withdrew that order, issu
ing in its place a nearly identical, one-paragraph per
curiam opinion adopting the District Court’s reasoning.
530 F.3d 87 (CA2 2008). Three days later, the Court of
Appeals voted 7 to 6 to deny rehearing en banc, over writ
ten dissents by Chief Judge Jacobs and Judge Cabranes.
530 F.3d 88.
This action presents two provisions of Title VII to be
interpreted and reconciled, with few, if any, precedents in
the courts of appeals discussing the issue. Depending on
the resolution of the statutory claim, a fundamental con
stitutional question could also arise. We found it prudent
and appropriate to grant certiorari. 555 U. S. ___ (2009).
We now reverse.
Cite as: 557 U. S. ____ (2009)
17
Opinion of the Court
II
Petitioners raise a statutory claim, under the disparate
treatment prohibition of Title VII, and a constitutional
claim, under the Equal Protection Clause of the Four
teenth Amendment. A decision for petitioners on their
statutory claim would provide the relief sought, so we
consider it first. See Atkins v. Parker, 472 U.S. 115, 123
(1985); Escambia County v. McMillan, 466 U.S. 48, 51
(1984) (per curiam) (“[N]ormally the Court will not decide
a constitutional question if there is some other ground
upon which to dispose of the case”).
A
Title VII of the Civil Rights Act of 1964, 42 U.S. C.
§2000e et seq., as amended, prohibits employment dis
crimination on the basis of race, color, religion, sex, or
national origin. Title VII prohibits both intentional dis
crimination (known as “disparate treatment”) as well as,
in some cases, practices that are not intended to discrimi
nate but in fact have a disproportionately adverse effect on
minorities (known as “disparate impact”).
As enacted in 1964, Title VII’s principal nondiscrimina
tion provision held employers liable only for disparate
treatment. That section retains its original wording to
day. It makes it unlawful for an employer “to fail or refuse
to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employ
ment, because of such individual’s race, color, religion, sex,
or national origin.” §2000e–2(a)(1); see also 78 Stat. 255.
Disparate-treatment cases present “the most easily under
stood type of discrimination,” Teamsters v. United States,
431 U.S. 324, 335, n. 15 (1977), and occur where an em
ployer has “treated [a] particular person less favorably
than others because of” a protected trait. Watson v. Fort
Worth Bank & Trust, 487 U.S. 977, 985–986 (1988). A
18 RICCI v. DESTEFANO
Opinion of the Court
disparate-treatment plaintiff must establish “that the
defendant had a discriminatory intent or motive” for
taking a job-related action. Id., at 986.
The Civil Rights Act of 1964 did not include an express
prohibition on policies or practices that produce a dispa
rate impact. But in Griggs v. Duke Power Co., 401 U.S.
424 (1971), the Court interpreted the Act to prohibit, in
some cases, employers’ facially neutral practices that, in
fact, are “discriminatory in operation.” Id., at 431. The
Griggs Court stated that the “touchstone” for disparate
impact liability is the lack of “business necessity”: “If an
employment practice which operates to exclude [minori
ties] cannot be shown to be related to job performance, the
practice is prohibited.” Ibid.; see also id., at 432 (em
ployer’s burden to demonstrate that practice has “a mani
fest relationship to the employment in question”); Albe
marle Paper Co. v. Moody, 422 U.S. 405, 425 (1975).
Under those precedents, if an employer met its burden by
showing that its practice was job-related, the plaintiff was
required to show a legitimate alternative that would have
resulted in less discrimination. Ibid. (allowing complain
ing party to show “that other tests or selection devices,
without a similarly undesirable racial effect, would also
serve the employer’s legitimate interest”).
Twenty years after Griggs, the Civil Rights Act of 1991,
105 Stat. 1071, was enacted. The Act included a provision
codifying the prohibition on disparate-impact discrimina
tion. That provision is now in force along with the dispa
rate-treatment section already noted. Under the dispa
rate-impact statute, a plaintiff establishes a prima facie
violation by showing that an employer uses “a particular
employment practice that causes a disparate impact on
the basis of race, color, religion, sex, or national origin.”
42 U.S. C. §2000e–2(k)(1)(A)(i). An employer may defend
against liability by demonstrating that the practice is “job
related for the position in question and consistent with
Cite as: 557 U. S. ____ (2009) 19
Opinion of the Court
business necessity.” Ibid. Even if the employer meets
that burden, however, a plaintiff may still succeed by
showing that the employer refuses to adopt an available
alternative employment practice that has less disparate
impact and serves the employer’s legitimate needs.
§§2000e–2(k)(1)(A)(ii) and (C).
B
Petitioners allege that when the CSB 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 VII’s disparate-treatment provision.
The City counters that its decision was permissible be
cause the tests “appear[ed] to violate Title VII’s disparate
impact provisions.” Brief for Respondents 12.
Our analysis begins with this premise: The City’s ac
tions 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 exami
nation results because of the statistical disparity based on
race—i.e., how minority candidates had performed when
compared to white candidates. As the District Court put
it, the City rejected the test results because “too many
whites and not enough minorities would be promoted were
the lists to be certified.” 554 F. Supp. 2d, at 152; see also
ibid. (respondents’ “own arguments . . . show that the
City’s reasons for advocating non-certification were re
lated to the racial distribution of the results”). Without
some other justification, this express, race-based deci
sionmaking violates Title VII’s command that employers
cannot take adverse employment actions because of an
individual’s race. See §2000e–2(a)(1).
The District Court did not adhere to this principle,
however. It held that respondents’ “motivation to avoid
making promotions based on a test with a racially dispa
rate impact . . . does not, as a matter of law, constitute
20 RICCI v. DESTEFANO
Opinion of the Court
discriminatory intent.” 554 F. Supp. 2d, at 160. And the
Government makes a similar argument in this Court. It
contends that the “structure of Title VII belies any claim
that an employer’s intent to comply with Title VII’s dispa
rate-impact provisions constitutes prohibited discrimina
tion on the basis of race.” Brief for United States as
Amicus Curiae 11. But both of those statements turn
upon the City’s objective—avoiding disparate-impact
liability—while ignoring the City’s conduct in the name of
reaching that objective. Whatever the City’s ultimate
aim—however well intentioned or benevolent it might
have seemed—the City made its employment decision
because of race. The City rejected the test results solely
because the higher scoring candidates were white. The
question is not whether that conduct was discriminatory
but whether the City had a lawful justification for its race
based action.
We consider, therefore, whether the purpose to avoid
disparate-impact liability excuses what otherwise would
be prohibited disparate-treatment discrimination. Courts
often confront cases in which statutes and principles point
in different directions. Our task is to provide guidance to
employers and courts for situations when these two prohi
bitions could be in conflict absent a rule to reconcile them.
In providing this guidance our decision must be consistent
with the important purpose of Title VII—that the work
place be an environment free of discrimination, where race
is not a barrier to opportunity.
With these principles in mind, we turn to the parties’
proposed means of reconciling the statutory provisions.
Petitioners take a strict approach, arguing that under
Title VII, it cannot be permissible for an employer to take
race-based adverse employment actions in order to avoid
disparate-impact liability—even if the employer knows its
practice violates the disparate-impact provision. See Brief
for Petitioners 43. Petitioners would have us hold that,
Cite as: 557 U. S. ____ (2009) 21
Opinion of the Court
under Title VII, avoiding unintentional discrimination
cannot justify intentional discrimination. That assertion,
however, ignores the fact that, by codifying the disparate
impact provision in 1991, Congress has expressly prohib
ited both types of discrimination. We must interpret the
statute to give effect to both provisions where possible.
See, e.g., United States v. Atlantic Research Corp.,
551 U.S. 128, 137 (2007) (rejecting an interpretation
that would render a statutory provision “a dead letter”).
We cannot accept petitioners’ broad and inflexible
formulation.
Petitioners next suggest that an employer in fact must
be in violation of the disparate-impact provision before it
can use compliance as a defense in a disparate-treatment
suit. Again, this is overly simplistic and too restrictive of
Title VII’s purpose. The rule petitioners offer would run
counter to what we have recognized as Congress’s intent
that “voluntary compliance” be “the preferred means of
achieving the objectives of Title VII.” Firefighters v. Cleve
land, 478 U.S. 501, 515 (1986); see also Wygant v. Jack
son Bd. of Ed., 476 U.S. 267, 290 (1986) (O’Connor, J.,
concurring in part and concurring in judgment). Forbid
ding employers to act unless they know, with certainty,
that a practice violates the disparate-impact provision
would bring compliance efforts to a near standstill. Even
in the limited situations when this restricted standard
could be met, employers likely would hesitate before tak
ing voluntary action for fear of later being proven wrong in
the course of litigation and then held to account for dispa
rate treatment.
At the opposite end of the spectrum, respondents and
the Government assert that an employer’s good-faith belief
that its actions are necessary to comply with Title VII’s
disparate-impact provision should be enough to justify
race-conscious conduct. But the original, foundational
prohibition of Title VII bars employers from taking ad
22 RICCI v. DESTEFANO
Opinion of the Court
verse action “because of . . . race.” §2000e–2(a)(1). And
when Congress codified the disparate-impact provision in
1991, it made no exception to disparate-treatment liability
for actions taken in a good-faith effort to comply with the
new, disparate-impact provision in subsection (k). Allow
ing employers to violate the disparate-treatment prohibi
tion based on a mere good-faith fear of disparate-impact
liability would encourage race-based action at the slightest
hint of disparate impact. A minimal standard could cause
employers to discard the results of lawful and beneficial
promotional examinations even where there is little if any
evidence of disparate-impact discrimination. That would
amount to a de facto quota system, in which a “focus on
statistics . . . could put undue pressure on employers to
adopt inappropriate prophylactic measures.” Watson, 487
U. S., at 992 (plurality opinion). Even worse, an employer
could discard test results (or other employment practices)
with the intent of obtaining the employer’s preferred racial
balance. That operational principle could not be justified,
for Title VII is express in disclaiming any interpretation of
its requirements as calling for outright racial balancing.
§2000e–2(j). The purpose of Title VII “is to promote hiring
on the basis of job qualifications, rather than on the basis
of race or color.” Griggs, 401 U. S., at 434.
In searching for a standard that strikes a more appro
priate balance, we note that this Court has considered
cases similar to this one, albeit in the context of the Equal
Protection Clause of the Fourteenth Amendment. The
Court has held that certain government actions to remedy
past racial discrimination—actions that are themselves
based on race—are constitutional only where there is a
“ ‘strong basis in evidence’ ” that the remedial actions were
necessary. Richmond v. J. A. Croson Co., 488 U.S. 469,
500 (1989) (quoting Wygant, supra, at 277 (plurality opin
ion)). This suit does not call on us to consider whether the
statutory constraints under Title VII must be parallel in
Cite as: 557 U. S. ____ (2009) 23
Opinion of the Court
all respects to those under the Constitution. That does not
mean the constitutional authorities are irrelevant, how
ever. Our cases discussing constitutional principles can
provide helpful guidance in this statutory context. See
Watson, supra, at 993 (plurality opinion).
Writing for a plurality in Wygant and announcing the
strong-basis-in-evidence standard, Justice Powell recog
nized the tension between eliminating segregation and
discrimination on the one hand and doing away with all
governmentally imposed discrimination based on race on
the other. 476 U. S., at 277. The plurality stated that
those “related constitutional duties are not always harmo
nious,” and that “reconciling them requires . . . employers
to act with extraordinary care.” Ibid. The plurality re
quired a strong basis in evidence because “[e]videntiary
support for the conclusion that remedial action is war
ranted becomes crucial when the remedial program is
challenged in court by nonminority employees.” Ibid. The
Court applied the same standard in Croson, observing that
“an amorphous claim that there has been past discrimina
tion . . . cannot justify the use of an unyielding racial
quota.” 488 U. S., at 499.
The same interests are at work in the interplay between
the disparate-treatment and disparate-impact provisions
of Title VII. Congress has imposed liability on employers
for unintentional discrimination in order to rid the work
place of “practices that are fair in form, but discriminatory
in operation.” Griggs, supra, at 431. But it has also pro
hibited employers from taking adverse employment ac
tions “because of” race. §2000e–2(a)(1). Applying the
strong-basis-in-evidence standard to Title VII gives effect
to both the disparate-treatment and disparate-impact
provisions, allowing violations of one in the name of com
pliance with the other only in certain, narrow circum
stances. The standard leaves ample room for employers’
voluntary compliance efforts, which are essential to the
24 RICCI v. DESTEFANO
Opinion of the Court
statutory scheme and to Congress’s efforts to eradicate
workplace discrimination. See Firefighters, supra, at 515.
And the standard appropriately constrains employers’
discretion in making race-based decisions: It limits that
discretion to cases in which there is a strong basis in
evidence of disparate-impact liability, but it is not so
restrictive that it allows employers to act only when there
is a provable, actual violation.
Resolving the statutory conflict in this way allows the
disparate-impact prohibition to work in a manner that is
consistent with other provisions of Title VII, including the
prohibition on adjusting employment-related test scores
on the basis of race. See §2000e–2(l). Examinations like
those administered by the City create legitimate expecta
tions on the part of those who took the tests. As is the
case with any promotion exam, some of the firefighters
here invested substantial time, money, and personal
commitment in preparing for the tests. Employment tests
can be an important part of a neutral selection system
that safeguards against the very racial animosities Title
VII was intended to prevent. Here, however, the firefight
ers saw their efforts invalidated by the City in sole reli
ance upon race-based statistics.
If an employer cannot rescore a test based on the candi
dates’ race, §2000e–2(l), then it follows a fortiori that it
may not take the greater step of discarding the test alto
gether 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. Restricting an employer’s ability to
discard test results (and thereby discriminate against
qualified candidates on the basis of their race) also is in
keeping with Title VII’s express protection of bona fide
promotional examinations. See §2000e–2(h) (“[N]or shall
it be an unlawful employment practice for an employer to
Cite as: 557 U. S. ____ (2009) 25
Opinion of the Court
give and to act upon the results of any professionally
developed ability test provided that such test, its admini
stration or action upon the results is not designed, in
tended or used to discriminate because of race”); cf. AT&T
Corp. v. Hulteen, 556 U.S. ___, ___ (2009) (slip op., at 8).
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.
Our statutory holding does not address the constitution
ality of the measures taken here in purported compliance
with Title VII. We also do not hold that meeting the
strong-basis-in-evidence standard would satisfy the Equal
Protection Clause in a future case. As we explain below,
because respondents have not met their burden under
Title VII, we need not decide whether a legitimate fear of
disparate impact is ever sufficient to justify discriminatory
treatment under the Constitution.
Nor do we question an employer’s affirmative efforts to
ensure that all groups have a fair opportunity to apply for
promotions and to participate in the process by which
promotions will be made. But once that process has been
established and employers have made clear their selection
criteria, they may not then invalidate the test results,
thus upsetting an employee’s legitimate expectation not to
be judged on the basis of race. Doing so, absent a strong
basis in evidence of an impermissible disparate impact,
amounts to the sort of racial preference that Congress has
disclaimed, §2000e–2(j), and is antithetical to the notion of
a workplace where individuals are guaranteed equal
opportunity regardless of race.
Title VII does not prohibit an employer from consider
ing, 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. And when,
during the test-design stage, an employer invites com
26 RICCI v. DESTEFANO
Opinion of the Court
ments to ensure the test is fair, that process can provide a
common ground for open discussions toward that end. 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 dispa
rate 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, discrimina
tory action.
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.
Even if respondents were motivated as a subjective matter
by a desire to avoid committing disparate-impact dis
crimination, the record makes clear there is no support for
the conclusion that respondents had an objective, strong
basis in evidence to find the tests inadequate, with some
consequent disparate-impact liability in violation of Title
VII.
On this basis, we conclude that petitioners have met
their obligation to demonstrate that there is “no genuine
issue as to any material fact” and that they are “entitled to
judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c).
On a motion for summary judgment, “facts must be viewed
in the light most favorable to the nonmoving party only if
there is a ‘genuine’ dispute as to those facts.” Scott v.
Harris, 550 U.S. 372, 380 (2007). “Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial.” Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (internal quotation marks
omitted). In this Court, the City’s only defense is that it
acted to comply with Title VII’s disparate-impact provi
sion. To succeed on their motion, then, petitioners must
Cite as: 557 U. S. ____ (2009) 27
Opinion of the Court
demonstrate that there can be no genuine dispute that
there was no strong basis in evidence for the City to con
clude it would face disparate-impact liability if it certified
the examination results. See Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986) (where the nonmoving party “will
bear the burden of proof at trial on a dispositive issue,” the
nonmoving party bears the burden of production under
Rule 56 to “designate specific facts showing that there is
a genuine issue for trial” (internal quotation marks
omitted)).
The racial adverse impact here was significant, and
petitioners do not dispute that the City was faced with a
prima facie case of disparate-impact liability. On the
captain exam, the pass rate for white candidates was 64
percent but was 37.5 percent for both black and Hispanic
candidates. On the lieutenant exam, the pass rate for
white candidates was 58.1 percent; for black candidates,
31.6 percent; and for Hispanic candidates, 20 percent. The
pass rates of minorities, which were approximately one
half the pass rates for white candidates, fall well below the
80-percent standard set by the EEOC to implement the
disparate-impact provision of Title VII. See 29 CFR
§1607.4(D) (2008) (selection rate that is less than 80 per
cent “of the rate for the group with the highest rate will
generally be regarded by the Federal enforcement agen
cies as evidence of adverse impact”); Watson, 487 U. S., at
995–996, n. 3 (plurality opinion) (EEOC’s 80-percent
standard is “a rule of thumb for the courts”). Based on
how the passing candidates ranked and an application of
the “rule of three,” certifying the examinations would have
meant that the City could not have considered black can
didates for any of the then-vacant lieutenant or captain
positions.
Based on the degree of adverse impact reflected in the
results, respondents were compelled to take a hard look at
the examinations to determine whether certifying the
28 RICCI v. DESTEFANO
Opinion of the Court
results would have had an impermissible disparate im
pact. The problem for respondents is that a prima facie
case of disparate-impact liability—essentially, a threshold
showing of a significant statistical disparity, Connecticut
v. Teal, 457 U.S. 440, 446 (1982), and nothing more—is
far from a strong basis in evidence that the City would
have been liable under Title VII had it certified the re
sults. That is because the City could be liable for dispa
rate-impact discrimination only if the examinations were
not job related and consistent with business necessity, or if
there existed an equally valid, less-discriminatory alterna
tive that served the City’s needs but that the City refused
to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no
strong basis in evidence to establish that the test was
deficient in either of these respects. We address each of
the two points in turn, based on the record developed by
the parties through discovery—a record that concentrates
in substantial part on the statements various witnesses
made to the CSB.
1
There is no genuine dispute that the examinations were
job-related and consistent with business necessity. The
City’s assertions to the contrary are “blatantly contra
dicted by the record.” Scott, supra, at 380. The CSB
heard statements from Chad Legel (the IOS vice presi
dent) as well as city officials outlining the detailed steps
IOS took to develop and administer the examinations.
IOS devised the written examinations, which were the
focus of the CSB’s inquiry, after painstaking analyses of
the captain and lieutenant positions—analyses in which
IOS made sure that minorities were overrepresented. And
IOS drew the questions from source material approved by
the Department. Of the outside witnesses who appeared
before the CSB, only one, Vincent Lewis, had reviewed the
examinations in any detail, and he was the only one with
Cite as: 557 U. S. ____ (2009) 29
Opinion of the Court
any firefighting experience. Lewis stated that the “ques
tions were relevant for both exams.” CA2 App. A1053.
The only other witness who had seen any part of the ex
aminations, Christopher Hornick (a competitor of IOS’s),
criticized the fact that no one within the Department had
reviewed the tests—a condition imposed by the City to
protect the integrity of the exams in light of past alleged
security breaches. But Hornick stated that the exams
“appea[r] to be . . . reasonably good” and recommended that
the CSB certify the results. Id., at A1041.
Arguing that the examinations were not job-related,
respondents note some candidates’ complaints that certain
examination questions were contradictory or did not spe
cifically apply to firefighting practices in New Haven. But
Legel told the CSB that IOS had addressed those con
cerns—that it entertained “a handful” of challenges to the
validity of particular examination questions, that it “re
viewed those challenges and provided feedback [to the
City] as to what we thought the best course of action was,”
and that he could remember at least one question IOS had
thrown out (“offer[ing] credit to everybody for that particu
lar question”). Id., at A955–A957. For his part, Hornick
said he “suspect[ed] that some of the criticisms . . . [lev
eled] by candidates” were not valid. Id., at A1035.
The City, moreover, turned a blind eye to evidence that
supported the exams’ validity. Although the City’s con
tract with IOS contemplated that IOS would prepare a
technical report consistent with EEOC guidelines for
examination-validity studies, the City made no request for
its report. After the January 2004 meeting between Legel
and some of the city-official respondents, in which Legel
defended the examinations, the City sought no further
information from IOS, save its appearance at a CSB meet
ing to explain how it developed and administered the
examinations. IOS stood ready to provide respondents
with detailed information to establish the validity of the
30 RICCI v. DESTEFANO
Opinion of the Court
exams, but respondents did not accept that offer.
2
Respondents also lacked a strong basis in evidence of an
equally valid, less-discriminatory testing alternative that
the City, by certifying the examination results, would
necessarily have refused to adopt. Respondents raise
three arguments to the contrary, but each argument fails.
First, respondents refer to testimony before the CSB that
a different composite-score calculation—weighting the
written and oral examination scores 30/70—would have
allowed the City to consider two black candidates for then
open lieutenant positions and one black candidate for
then-open captain positions. (The City used a 60/40
weighting as required by its contract with the New Haven
firefighters’ union.) But respondents have produced no
evidence to show that the 60/40 weighting was indeed
arbitrary. In fact, because that formula was the result of a
union-negotiated collective-bargaining agreement, we
presume the parties negotiated that weighting for a ra
tional reason. Nor does the record contain any evidence
that the 30/70 weighting would be an equally valid way to
determine whether candidates possess the proper mix of
job knowledge and situational skills to earn promotions.
Changing the weighting formula, moreover, could well
have violated Title VII’s prohibition of altering test scores
on the basis of race. See §2000e–2(l). On this record,
there is no basis to conclude that a 30/70 weighting was an
equally valid alternative the City could have adopted.
Second, respondents argue that the City could have
adopted a different interpretation of the “rule of three”
that would have produced less discriminatory results. The
rule, in the New Haven city charter, requires the City to
promote only from “those applicants with the three high
est scores” on a promotional examination. New Haven,
Conn., Code of Ordinances, Tit. I, Art. XXX, §160 (1992).
Cite as: 557 U. S. ____ (2009) 31
Opinion of the Court
A state court has interpreted the charter to prohibit so
called “banding”—the City’s previous practice of rounding
scores to the nearest whole number and considering all
candidates with the same whole-number score as being of
one rank. Banding allowed the City to consider three
ranks of candidates (with the possibility of multiple candi
dates filling each rank) for purposes of the rule of three.
See Kelly v. New Haven, No. CV000444614, 2004 WL
114377, *3 (Conn. Super. Ct., Jan. 9, 2004). Respondents
claim that employing banding here would have made four
black and one Hispanic candidates eligible for then-open
lieutenant and captain positions.
A state court’s prohibition of banding, as a matter of
municipal law under the charter, may not eliminate band
ing as a valid alternative under Title VII. See 42 U.S. C.
§2000e–7. We need not resolve that point, however. Here,
banding was not a valid alternative for this reason: Had
the City reviewed the exam results and then adopted
banding to make the minority test scores appear higher, it
would have violated Title VII’s prohibition of adjusting
test results on the basis of race. §2000e–2(l); see also
Chicago Firefighters Local 2 v. Chicago, 249 F.3d 649, 656
(CA7 2001) (Posner, J.) (“We have no doubt that if banding
were adopted in order to make lower black scores seem
higher, it would indeed be . . . forbidden”). As a matter of
law, banding was not an alternative available to the City
when it was considering whether to certify the examina
tion results.
Third, and finally, respondents refer to statements by
Hornick in his telephone interview with the CSB regard
ing alternatives to the written examinations. Hornick
stated his “belie[f]” that an “assessment center process,”
which would have evaluated candidates’ behavior in typi
cal job tasks, “would have demonstrated less adverse
impact.” CA2 App. A1039. But Hornick’s brief mention of
alternative testing methods, standing alone, does not raise
32 RICCI v. DESTEFANO
Opinion of the Court
a genuine issue of material fact that assessment centers
were available to the City at the time of the examinations
and that they would have produced less adverse impact.
Other statements to the CSB indicated that the Depart
ment could not have used assessment centers for the 2003
examinations. Supra, at 14. And although respondents
later argued to the CSB that Hornick had pushed the City
to reject the test results, supra, at 15–17, the truth is that
the essence of Hornick’s remarks supported its certifying
the test results. See Scott, 550 U. S., at 380. Hornick
stated that adverse impact in standardized testing “has
been in existence since the beginning of testing,” CA2 App.
A1037, and that the disparity in New Haven’s test results
was “somewhat higher but generally in the range that
we’ve seen professionally.” Id., at A1030–A1031. He told
the CSB he was “not suggesting” that IOS “somehow
created a test that had adverse impacts that it should not
have had.” Id., at A1038. And he suggested that the CSB
should “certify the list as it exists.” Id., at A1041.
Especially when it is noted that the strong-basis-in
evidence standard applies, respondents cannot create a
genuine issue of fact based on a few stray (and contradic
tory) statements in the record. And there is no doubt
respondents fall short of the mark by relying entirely on
isolated statements by Hornick. Hornick had not
“stud[ied] the test at length or in detail.” Id., at A1030.
And as he told the CSB, he is a “direct competitor” of
IOS’s. Id., at A1029. The remainder of his remarks
showed that Hornick’s primary concern—somewhat to the
frustration of CSB members—was marketing his services
for the future, not commenting on the results of the tests
the City had already administered. See, e.g., id., at
A1026, A1027, A1032, A1036, A1040, A1041. Hornick’s
hinting had its intended effect: The City has since hired
him as a consultant. As for the other outside witnesses
who spoke to the CSB, Vincent Lewis (the retired fire
Cite as: 557 U. S. ____ (2009) 33
Opinion of the Court
captain) thought the CSB should certify the test results.
And Janet Helms (the Boston College professor) declined
to review the examinations and told the CSB that, as a
society, “we need to develop a new way of assessing peo
ple.” Id., at A1073. That task was beyond the reach of the
CSB, which was concerned with the adequacy of the test
results before it.
3
On the record before us, there is no genuine dispute that
the City lacked a strong basis in evidence to believe it
would face disparate-impact liability if it certified the
examination results. In other words, there is no evidence
—let alone the required strong basis in evidence—that 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 examinations and qualified for
promotions. The City’s discarding the test results was
impermissible under Title VII, and summary judgment is
appropriate for petitioners on their disparate-treatment
claim.
* * *
The record in this litigation documents a process that, at
the outset, had the potential to produce a testing proce
dure that was true to the promise of Title VII: No individ
ual should face workplace discrimination based on race.
Respondents thought about promotion qualifications and
relevant experience in neutral ways. They were careful to
ensure broad racial participation in the design of the test
itself and its administration. As we have discussed at
length, the process was open and fair.
The problem, of course, is that after the tests were
completed, the raw racial results became the predominant
34 RICCI v. DESTEFANO
Opinion of the Court
rationale for the City’s refusal to certify the results. The
injury arises in part from the high, and justified, expecta
tions of the candidates who had participated in the testing
process on the terms the City had established for the
promotional process. Many of the candidates had studied
for months, at considerable personal and financial ex
pense, and thus the injury caused by the City’s reliance on
raw racial statistics at the end of the process was all the
more severe. Confronted with arguments both for and
against certifying the test results—and threats of a law
suit either way—the City was required to make a difficult
inquiry. But its hearings produced no strong evidence of a
disparate-impact violation, and the City was not entitled
to disregard the tests based solely on the racial disparity
in the results.
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.
Petitioners are entitled to summary judgment on their
Title VII claim, and we therefore need not decide the
underlying constitutional question. The judgment of the
Court of Appeals is reversed, and the cases are remanded
for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 557 U. S. ____ (2009) 1
SCALIA, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–1428 and 08–328
_________________
FRANK RICCI, ET AL., PETITIONERS
07–1428 v.
JOHN DESTEFANO ET AL.
FRANK RICCI, ET AL., PETITIONERS
08–328 v.
JOHN DESTEFANO ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
JUSTICE SCALIA, concurring.
I join the Court’s opinion in full, but write separately to
observe that its resolution of this dispute merely post
pones the evil day on which the Court will have to confront
the question: Whether, or to what extent, are the dispa
rate-impact provisions of Title VII of the Civil Rights Act
of 1964 consistent with the Constitution’s guarantee of
equal protection? The question is not an easy one. See
generally Primus, Equal Protection and Disparate Impact:
Round Three, 117 Harv. L. Rev. 493 (2003).
The difficulty is this: Whether or not Title VII’s dispa
rate-treatment provisions forbid “remedial” race-based
actions when a disparate-impact violation would not oth
erwise result—the question resolved by the Court today—
it is clear that Title VII not only permits but affirmatively
requires such actions when a disparate-impact violation
would otherwise result. See ante, at 20–21. But if the
Federal Government is prohibited from discriminating on
the basis of race, Bolling v. Sharpe, 347 U.S. 497, 500
(1954), then surely it is also prohibited from enacting laws
2 RICCI v. DESTEFANO
SCALIA, J., concurring
mandating that third parties—e.g., employers, whether
private, State, or municipal—discriminate on the basis of
race. See Buchanan v. Warley, 245 U.S. 60, 78–82 (1917).
As the facts of these cases illustrate, Title VII’s disparate
impact provisions place a racial thumb on the scales, often
requiring employers to evaluate the racial outcomes of
their policies, and to make decisions based on (because of)
those racial outcomes. That type of racial decisionmaking
is, as the Court explains, discriminatory. See ante, at 19;
Personnel Administrator of Mass. v. Feeney, 442 U.S. 256,
279 (1979).
To be sure, the disparate-impact laws do not mandate
imposition of quotas, but it is not clear why that should
provide a safe harbor. Would a private employer not be
guilty of unlawful discrimination if he refrained from
establishing a racial hiring quota but intentionally de
signed his hiring practices to achieve the same end?
Surely he would. Intentional discrimination is still occur
ring, just one step up the chain. Government compulsion
of such design would therefore seemingly violate equal
protection principles. Nor would it matter that Title VII
requires consideration of race on a wholesale, rather than
retail, level. “[T]he Government must treat citizens as
individuals, not as simply components of a racial, reli
gious, sexual or national class.” Miller v. Johnson, 515
U.S. 900, 911 (1995) (internal quotation marks omitted).
And of course the purportedly benign motive for the dispa
rate-impact provisions cannot save the statute. See Ada­
rand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995).
It might be possible to defend the law by framing it as
simply an evidentiary tool used to identify genuine, inten
tional discrimination—to “smoke out,” as it were, dispa
rate treatment. See Primus, supra, at 498–499, 520–521.
Disparate impact is sometimes (though not always, see
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992
(1988) (plurality opinion)) a signal of something illicit, so a
Cite as: 557 U. S. ____ (2009) 3
SCALIA, J., concurring
regulator might allow statistical disparities to play some
role in the evidentiary process. Cf. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802–803 (1973). But argua
bly the disparate-impact provisions sweep too broadly to
be fairly characterized in such a fashion—since they fail to
provide an affirmative defense for good-faith (i.e., nonra
cially motivated) conduct, or perhaps even for good faith
plus hiring standards that are entirely reasonable. See
post, at 15–16, and n. 1 (GINSBURG, J., dissenting) (de
scribing the demanding nature of the “business necessity”
defense). This is a question that this Court will have to
consider in due course. It is one thing to free plaintiffs
from proving an employer’s illicit intent, but quite another
to preclude the employer from proving that its motives
were pure and its actions reasonable.
The Court’s resolution of these cases makes it unneces
sary to resolve these matters today. But the war between
disparate impact and equal protection will be waged
sooner or later, and it behooves us to begin thinking about
how—and on what terms—to make peace between them.
Cite as: 557 U. S. ____ (2009) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–1428 and 08–328
_________________
FRANK RICCI, ET AL., PETITIONERS
07–1428 v.
JOHN DESTEFANO ET AL.
FRANK RICCI, ET AL., PETITIONERS
08–328 v.
JOHN DESTEFANO ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE
THOMAS join, concurring.
I join the Court’s opinion in full. I write separately only
because the dissent, while claiming that “[t]he Court’s
recitation of the facts leaves out important parts of the
story,” post, at 2 (opinion of GINSBURG, J.), provides an
incomplete description of the events that led to New Ha
ven’s decision to reject the results of its exam. The dis
sent’s omissions are important because, when all of the
evidence in the record is taken into account, it is clear
that, even if the legal analysis in Parts II and III–A of the
dissent were accepted, affirmance of the decision below is
untenable.
I
When an employer in a disparate-treatment case under
Title VII of the Civil Rights Act of 1964 claims that an
employment decision, such as the refusal to promote, was
based on a legitimate reason, two questions—one objective
and one subjective—must be decided. The first, objective
question is whether the reason given by the employer is
2 RICCI v. DESTEFANO
ALITO, J., concurring
one that is legitimate under Title VII. See St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 506–507 (1993). If
the reason provided by the employer is not legitimate on
its face, the employer is liable. Id., at 509. The second,
subjective question concerns the employer’s intent. If an
employer offers a facially legitimate reason for its decision
but it turns out that this explanation was just a pretext
for discrimination, the employer is again liable. See id., at
510–512.
The question on which the opinion of the Court and the
dissenting opinion disagree concerns the objective compo
nent of the determination that must be made when an
employer justifies an employment decision, like the one
made in this litigation, on the ground that a contrary
decision would have created a risk of disparate-impact
liability. The Court holds—and I entirely agree—that
concern about disparate-impact liability is a legitimate
reason for a decision of the type involved here only if there
was a “substantial basis in evidence to find the tests in
adequate.” Ante, at 26. The Court ably demonstrates that
in this litigation no reasonable jury could find that the city
of New Haven (City) possessed such evidence and there
fore summary judgment for petitioners is required. Be
cause the Court correctly holds that respondents cannot
satisfy this objective component, the Court has no need to
discuss the question of the respondents’ actual intent. As
the Court puts it, “[e]ven if respondents were motivated as
a subjective matter by a desire to avoid committing dispa
rate-impact discrimination, the record makes clear there
is no support for the conclusion that respondents had an
objective, substantial basis in evidence to find the tests
inadequate.” Ibid.
The dissent advocates a different objective component of
the governing standard. According to the dissent, the
objective component should be whether the evidence pro
vided “good cause” for the decision, post, at 19, and the
Cite as: 557 U. S. ____ (2009) 3
ALITO, J., concurring
dissent argues—incorrectly, in my view—that no reason
able juror could fail to find that such evidence was present
here. But even if the dissent were correct on this point, I
assume that the dissent would not countenance summary
judgment for respondents if respondents’ professed con
cern about disparate-impact litigation was simply a pre
text. Therefore, the decision below, which sustained the
entry of summary judgment for respondents, cannot be
affirmed unless no reasonable jury could find that the
City’s asserted reason for scrapping its test—concern
about disparate-impact liability—was a pretext and that
the City’s real reason was illegitimate, namely, the desire
to placate a politically important racial constituency.
II
A
As initially described by the dissent, see post, at 2–12,
the process by which the City reached the decision not to
accept the test results was open, honest, serious, and
deliberative. But even the District Court admitted 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 [Rev. Boise] Kimber and
other influential leaders of New Haven’s African-American
community.” 554 F. Supp. 2d 142, 162 (Conn. 2006),
summarily aff’d, 530 F.3d 87 (CA2 2008) (per curiam).
This admission finds ample support in the record.
Reverend Boise Kimber, to whom the District Court re
ferred, is a politically powerful New Haven pastor and a
self-professed “ ‘kingmaker.’ ” App. to Pet. for Cert. in No.
07–1428, p. 906a; see also id., at 909a. On one occasion,
“[i]n front of TV cameras, he threatened a race riot during
the murder trial of the black man arrested for killing
white Yalie Christian Prince. He continues to call whites
racist if they question his actions.” Id., at 931a.
4 RICCI v. DESTEFANO
ALITO, J., concurring
Reverend Kimber’s personal ties with seven-term New
Haven Mayor John DeStefano (Mayor) stretch back more
than a decade. In 1996, for example, Mayor DeStefano
testified for Rev. Kimber as a character witness when Rev.
Kimber—then the manager of a funeral home—was prose
cuted and convicted for stealing prepaid funeral expenses
from an elderly woman and then lying about the matter
under oath. See id., at 126a, 907a. “Reverend Kimber has
played a leadership role in all of Mayor DeStefano’s politi
cal campaigns, [and] is considered a valuable political
supporter and vote-getter.” Id., at 126a. According to the
Mayor’s former campaign manager (who is currently his
executive assistant), Rev. Kimber is an invaluable political
asset because “[h]e’s very good at organizing people and
putting together field operations, as a result of his ties to
labor, his prominence in the religious community and his
long-standing commitment to roots.” Id., at 908a (internal
quotation marks and alteration omitted).
In 2002, the Mayor picked Rev. Kimber to serve as the
Chairman of the New Haven Board of Fire Commissioners
(BFC), “despite the fact that he had no experience in the
profession, fire administration, [or] municipal manage
ment.” Id., at 127a; see also id., at 928a–929a. In that
capacity, Rev. Kimber told firefighters that certain new
recruits would not be hired because “ ‘they just have too
many vowels in their name[s].’ ” Thanawala, New Haven
Fire Panel Chairman Steps Down Over Racial Slur, Hart
ford Courant, June 13, 2002, p. B2. After protests about
this comment, Rev. Kimber stepped down as chairman of
the BFC, ibid.; see also App. to Pet. for Cert. in No. 07–
1428, at 929a, but he remained on the BFC and retained
“a direct line to the mayor,” id., at 816a.
Almost immediately after the test results were revealed
in “early January” 2004, Rev. Kimber called the City’s
Chief Administrative Officer, Karen Dubois-Walton, who
“acts ‘on behalf of the Mayor.’ ” Id., at 221a, 812a. Dubois
Cite as: 557 U. S. ____ (2009) 5
ALITO, J., concurring
Walton and Rev. Kimber met privately in her office be
cause he wanted “to express his opinion” about the test
results and “to have some influence” over the City’s re
sponse. Id., at 815a–816a. As discussed in further detail
below, Rev. Kimber adamantly opposed certification of the
test results—a fact that he or someone in the Mayor’s
office eventually conveyed to the Mayor. Id., at 229a.
B
On January 12, 2004, Tina Burgett (the director of the
City’s Department of Human Resources) sent an e-mail to
Dubois-Walton to coordinate the City’s response to the test
results. Burgett wanted to clarify that the City’s executive
officials would meet “sans the Chief, and that once we had
a better fix on the next steps we would meet with the
Mayor (possibly) and then the two Chiefs.” Id., at 446a.
The “two Chiefs” are Fire Chief William Grant (who is
white) and Assistant Fire Chief Ronald Dumas (who is
African-American). Both chiefs believed that the test
results should be certified. Id., at 228a, 817a. Petitioners
allege, and the record suggests, that the Mayor and his
staff colluded “sans the Chief[s]” because “the defendants
did not want Grant’s or Dumas’ views to be publicly
known; accordingly both men were prevented by the
Mayor and his staff from making any statements regard
ing the matter.” Id., at 228a.1
The next day, on January 13, 2004, Chad Legel, who
had designed the tests, flew from Chicago to New Haven
to meet with Dubois-Walton, Burgett, and Thomas Ude,
the City’s corporate counsel. Id., at 179a. “Legel outlined
the merits of the examination and why city officials should
be confident in the validity of the results.” Ibid. But
——————
1 Although the dissent disputes it, see post, at 33–34, n. 17, the record
certainly permits the inference that petitioners’ allegation is true. See
App. to Pet. for Cert. in No. 07–1428, pp. 846a–851a (deposition of
Dubois-Walton).
6 RICCI v. DESTEFANO
ALITO, J., concurring
according to Legel, Dubois-Walton was “argumentative”
and apparently had already made up her mind that the
tests were “ ‘discriminatory.’ ” Id., at 179a–180a. Again
according to Legel, “[a] theme” of the meeting was “the
political and racial overtones of what was going on in the
City.” Id., at 181a. “Legel came away from the January
13, 2004 meeting with the impression that defendants
were already leaning toward discarding the examination
results.” Id., at 180a.
On January 22, 2004, the Civil Service Board (CSB or
Board) convened its first public meeting. Almost immedi
ately, Rev. Kimber began to exert political pressure on the
CSB. He began a loud, minutes-long outburst that re
quired the CSB Chairman to shout him down and hold
him out of order three times. See id., at 187a, 467a–468a;
see also App. in No. 06–4996–cv (CA2), pp. A703–A705.
Reverend Kimber protested the public meeting, arguing
that he and the other fire commissioners should first be
allowed to meet with the CSB in private. App. to Pet. for
Cert. in No. 07–1428, at 188a.
Four days after the CSB’s first meeting, Mayor DeSte
fano’s executive aide sent an e-mail to Dubois-Walton,
Burgett, and Ude. Id., at 190a. The message clearly
indicated that the Mayor had made up his mind to oppose
certification of the test results (but nevertheless wanted to
conceal that fact from the public):
“I wanted to make sure we are all on the same page
for this meeting tomorrow. . . . [L]et’s remember, that
these folks are not against certification yet. So we
can’t go in and tell them that is our position; we have
to deliberate and arrive there as the fairest and most
cogent outcome.” Ibid.
On February 5, 2004, the CSB convened its second
public meeting. Reverend Kimber again testified and
threatened the CSB with political recriminations if they
Cite as: 557 U. S. ____ (2009) 7
ALITO, J., concurring
voted to certify the test results:
“I look at this [Board] tonight. I look at three whites
and one Hispanic and no blacks. . . . I would hope that
you would not put yourself in this type of position, a
political ramification that may come back upon you as
you sit on this [Board] and decide the future of a
department and the future of those who are being
promoted.
. . . . .
“(APPLAUSE).” Id., at 492a (emphasis added).
One of the CSB members “t[ook] great offense” because he
believed that Rev. Kimber “consider[ed] [him] a bigot
because [his] face is white.” Id., at 496a. The offended
CSB member eventually voted not to certify the test re
sults. Id., at 586a–587a.
One of Rev. Kimber’s “friends and allies,” Lieutenant
Gary Tinney, also exacerbated racial tensions before the
CSB. Id., at 129a. After some firefighters applauded in
support of certifying the test results, “Lt. Tinney ex
claimed, ‘Listen to the Klansmen behind us.’ ” Id., at 225a.
Tinney also has strong ties to the Mayor’s office. See,
e.g., id., at 129a–130a, 816a–817a. After learning that he
had not scored well enough on the captain’s exam to earn
a promotion, Tinney called Dubois-Walton and arranged a
meeting in her office. Id., at 830a–831a, 836a. Tinney
alleged that the white firefighters had cheated on their
exams—an accusation that Dubois-Walton conveyed to the
Board without first conducting an investigation into its
veracity. Id., at 837a–838a; see also App. 164 (statement
of CSB Chairman, noting the allegations of cheating). The
allegation turned out to be baseless. App. to Pet. for Cert.
in No. 07–1428, at 836a.
Dubois-Walton never retracted the cheating allegation,
but she and other executive officials testified several times
before the CSB. In accordance with directions from the
8 RICCI v. DESTEFANO
ALITO, J., concurring
Mayor’s office to make the CSB meetings appear delibera
tive, see id., at 190a, executive officials remained publicly
uncommitted about certification—while simultaneously
“work[ing] as a team” behind closed doors with the secre
tary of the CSB to devise a political message that would
convince the CSB to vote against certification, see id., at
447a. At the public CSB meeting on March 11, 2004, for
example, Corporation Counsel Ude bristled at one board
member’s suggestion that City officials were recommend
ing against certifying the test results. See id., at 215a
(“Attorney Ude took offense, stating, ‘Frankly, because I
would never make a recommendation—I would not have
made a recommendation like that’ ”). But within days of
making that public statement, Ude privately told other
members of the Mayor’s team “the ONLY way we get to a
decision not to certify is” to focus on something other than
“a big discussion re: adverse impact” law. Id., at 458a–
459a.
As part of its effort to deflect attention from the specifics
of the test, the City relied heavily on the testimony of Dr.
Christopher Hornick, who is one of Chad Legel’s competi
tors in the test-development business. Hornick never
“stud[ied] the test [that Legel developed] at length or in
detail,” id., at 549a; see also id., at 203a, 553a, but Hor
nick did review and rely upon literature sent to him by
Burgett to criticize Legel’s test. For example, Hornick
“noted in the literature that [Burgett] sent that the test
was not customized to the New Haven Fire Department.”
Id., at 551a. The Chairman of the CSB immediately cor
rected Hornick. Id., at 552a (“Actually, it was, Dr. Hor
nick”). Hornick also relied on newspaper accounts—again,
sent to him by Burgett—pertaining to the controversy
surrounding the certification decision. See id., at 204a,
557a. Although Hornick again admitted that he had no
knowledge about the actual test that Legel had developed
and that the City had administered, see id., at 560a–561a,
Cite as: 557 U. S. ____ (2009) 9
ALITO, J., concurring
the City repeatedly relied upon Hornick as a testing
“guru” and, in the CSB Chairman’s words, “the City ke[pt]
quoting him as a person that we should rely upon more
than anybody else [to conclude that there] is a better
way—a better mousetrap.”2 App. in No. 06–4996–cv
(CA2), at A1128. Dubois-Walton later admitted that the
City rewarded Hornick for his testimony by hiring him to
develop and administer an alternative test. App. to Pet.
for Cert. in No. 07–1428, at 854a; see also id., at 562a–
563a (Hornick’s plea for future business from the City on
the basis of his criticisms of Legel’s tests).
At some point prior to the CSB’s public meeting on
March 18, 2004, the Mayor decided to use his executive
authority to disregard the test results—even if the CSB
ultimately voted to certify them. Id., at 819a–820a. Ac
cordingly, on the evening of March 17th, Dubois-Walton
sent an e-mail to the Mayor, the Mayor’s executive assis
tant, Burgett, and attorney Ude, attaching two alternative
press releases. Id., at 457a. The first would be issued if
the CSB voted not to certify the test results; the second
would be issued (and would explain the Mayor’s invocation
of his executive authority) if the CSB voted to certify the
test results. Id., at 217a–218a, 590a–591a, 819a–820a.
Half an hour after Dubois-Walton circulated the alterna
tive drafts, Burgett replied: “[W]ell, that seems to say it
all. Let’s hope draft #2 hits the shredder tomorrow nite.”
Id., at 457a.
——————
2 The City’s heavy reliance on Hornick’s testimony makes the two
chiefs’ silence all the more striking. See supra, at 5. While Hornick
knew little or nothing about the tests he criticized, the two chiefs were
involved “during the lengthy process that led to the devising of the
administration of these exams,” App. to Pet. for Cert. in No. 07–1428,
at 847a, including “collaborating with City officials on the extensive job
analyses that were done,” “selection of the oral panelists,” and selection
of “the proper content and subject matter of the exams,” id., at 847a–
848a.
10 RICCI v. DESTEFANO
ALITO, J., concurring
Soon after the CSB voted against certification, Mayor
DeStefano appeared at a dinner event and “took credit for
the scu[tt]ling of the examination results.” Id., at 230a.
C
Taking into account all the evidence in the summary
judgment record, a reasonable jury could find the follow
ing. Almost as soon as the City disclosed the racial
makeup of the list of firefighters who scored the highest on
the exam, the City administration was lobbied by an
influential community leader to scrap the test results, and
the City administration decided on that course of action
before making any real assessment of the possibility of a
disparate-impact violation. To achieve that end, the City
administration concealed its internal decision but
worked—as things turned out, successfully—to persuade
the CSB that acceptance of the test results would be ille
gal and would expose the City to disparate-impact liabil
ity. But in the event that the CSB was not persuaded, the
Mayor, wielding ultimate decisionmaking authority, was
prepared to overrule the CSB immediately. Taking this
view of the evidence, a reasonable jury could easily find
that the City’s real reason for scrapping the test results
was not a concern about violating the disparate-impact
provision of Title VII but a simple desire to please a politi
cally important racial constituency. It is noteworthy that
the Solicitor General—whose position on the principal
legal issue in this case is largely aligned with the dis
sent—concludes that “[n]either the district court nor the
court of appeals . . . adequately considered whether, view
ing the evidence in the light most favorable to petitioners,
a genuine issue of material fact remained whether respon
dents’ claimed purpose to comply with Title VII was a
pretext for intentional racial discrimination . . . .” Brief
for United States as Amicus Curiae 6; see also id., at 32–
33.
Cite as: 557 U. S. ____ (2009) 11
ALITO, J., concurring
III
I will not comment at length on the dissent’s criticism of
my analysis, but two points require a response.
The first concerns the dissent’s statement that I
“equat[e] political considerations with unlawful discrimi
nation.” Post, at 36. The dissent misrepresents my posi
tion: I draw no such equation. Of course “there are many
ways in which a politician can attempt to win over a con
stituency—including a racial constituency—without en
gaging in unlawful discrimination.” Post, at 36–37. But—
as I assume the dissent would agree—there are some
things that a public official cannot do, and one of those is
engaging in intentional racial discrimination when mak
ing employment decisions.
The second point concerns the dissent’s main argu
ment—that efforts by the Mayor and his staff to scuttle
the test results are irrelevant because the ultimate deci
sion was made by the CSB. According to the dissent,
“[t]he relevant decision was made by the CSB,” post, at 34,
and there is “scant cause to suspect” that anything done
by the opponents of certification, including the Mayor and
his staff, “prevented the CSB from evenhandedly assess
ing the reliability of the exams and rendering an inde
pendent, good-faith decision on certification,” post, at 36.
Adoption of the dissent’s argument would implicitly
decide an important question of Title VII law that this
Court has never resolved—the circumstances in which an
employer may be held liable based on the discriminatory
intent of subordinate employees who influence but do not
make the ultimate employment decision. There is a large
body of court of appeals case law on this issue, and these
cases disagree about the proper standard. See EEOC v.
BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476,
484–488 (CA10 2006) (citing cases and describing the
approaches taken in different Circuits). One standard is
whether the subordinate “exerted influenc[e] over the
12 RICCI v. DESTEFANO
ALITO, J., concurring
titular decisionmaker.” Russell v. McKinney Hosp. Ven
ture, 235 F.3d 219, 227 (CA5 2000); see also Poland v.
Chertoff, 494 F.3d 1174, 1182 (CA9 2007) (A subordinate’s
bias is imputed to the employer where the subordinate
“influenced or was involved in the decision or decision
making process”). Another is whether the discriminatory
input “caused the adverse employment action.” See BCI
Coca-Cola Bottling Co. of Los Angeles, supra, at 487.
In the present cases, a reasonable jury could certainly
find that these standards were met. The dissent makes
much of the fact that members of the CSB swore under
oath that their votes were based on the good-faith belief
that certification of the results would have violated federal
law. See post, at 34. But the good faith of the CSB mem
bers would not preclude a finding that the presentations
engineered by the Mayor and his staff influenced or
caused the CSB decision.
The least employee-friendly standard asks only whether
“the actual decisionmaker” acted with discriminatory
intent, see Hill v. Lockheed Martin Logistics Management,
Inc., 354 F.3d 277, 291 (CA4 2004) (en banc), and it is
telling that, even under this standard, summary judgment
for respondents would not be proper. This is so because a
reasonable jury could certainly find that in New Haven,
the Mayor—not the CSB—wielded the final decisionmak
ing power. After all, the Mayor claimed that authority
and was poised to use it in the event that the CSB decided
to accept the test results. See supra, at 9. If the Mayor
had the authority to overrule a CSB decision accepting the
test results, the Mayor also presumably had the authority
to overrule the CSB’s decision rejecting the test results. In
light of the Mayor’s conduct, it would be quite wrong to
throw out petitioners’ case on the ground that the CSB
was the ultimate decisionmaker.
Cite as: 557 U. S. ____ (2009) 13
ALITO, J., concurring
* * *
Petitioners are firefighters who seek only a fair chance
to move up the ranks in their chosen profession. In order
to qualify for promotion, they made personal sacrifices.
Petitioner Frank Ricci, who is dyslexic, found it necessary
to “hir[e] someone, at considerable expense, to read onto
audiotape the content of the books and study materials.”
App. to Pet. for Cert. in No. 07–1428, at 169a. He “studied
an average of eight to thirteen hours a day . . . , even
listening to audio tapes while driving his car.” Ibid.
Petitioner Benjamin Vargas, who is Hispanic, had to “give
up a part-time job,” and his wife had to “take leave from
her own job in order to take care of their three young
children while Vargas studied.” Id., at 176a. “Vargas
devoted countless hours to study . . . , missed two of his
children’s birthdays and over two weeks of vacation time,”
and “incurred significant financial expense” during the
three-month study period. Id., at 176a–177a.
Petitioners were denied promotions for which they
qualified because of the race and ethnicity of the firefight
ers who achieved the highest scores on the City’s exam.
The District Court threw out their case on summary
judgment, even though that court all but conceded that a
jury could find that the City’s asserted justification was
pretextual. The Court of Appeals then summarily af
firmed that decision.
The dissent grants that petitioners’ situation is “unfor
tunate” and that they “understandably attract this Court’s
sympathy.” Post, at 1, 39. But “sympathy” is not what
petitioners have a right to demand. What they have a
right to demand is evenhanded enforcement of the law—of
Title VII’s prohibition against discrimination based on
race. And that is what, until today’s decision, has been
denied them.
Cite as: 557 U. S. ____ (2009) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 07–1428 and 08–328
_________________
FRANK RICCI, ET AL., PETITIONERS
07–1428 v.
JOHN DESTEFANO ET AL.
FRANK RICCI, ET AL., PETITIONERS
08–328 v.
JOHN DESTEFANO ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 29, 2009]
JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUS-
TICE SOUTER, and JUSTICE BREYER join, dissenting.
In assessing claims of race discrimination, “[c]ontext
matters.” Grutter v. Bollinger, 539 U.S. 306, 327 (2003).
In 1972, Congress extended Title VII of the Civil Rights
Act of 1964 to cover public employment. At that time,
municipal fire departments across the country, including
New Haven’s, pervasively discriminated against minori
ties. The extension of Title VII to cover jobs in firefighting
effected no overnight change. It took decades of persistent
effort, advanced by Title VII litigation, to open firefighting
posts to members of racial minorities.
The white firefighters who scored high on New Haven’s
promotional exams understandably attract this Court’s
sympathy. But they had no vested right to promotion.
Nor have other persons received promotions in preference
to them. New Haven maintains that it refused to certify
the test results because it believed, for good cause, that it
would be vulnerable to a Title VII disparate-impact suit if
it relied on those results. The Court today holds that New
2 RICCI v. DESTEFANO
GINSBURG, J., dissenting
Haven has not demonstrated “a strong basis in evidence”
for its plea. Ante, at 2. In so holding, the Court pretends
that “[t]he City rejected the test results solely because the
higher scoring candidates were white.” Ante, at 20. That
pretension, essential to the Court’s disposition, ignores
substantial evidence of multiple flaws in the tests New
Haven used. The Court similarly fails to acknowledge the
better tests used in other cities, which have yielded less
racially skewed outcomes.1
By order of this Court, New Haven, a city in which
African-Americans and Hispanics account for nearly 60
percent of the population, must today be served—as it was
in the days of undisguised discrimination—by a fire de
partment in which members of racial and ethnic minori
ties are rarely seen in command positions. In arriving at
its order, the Court barely acknowledges the pathmarking
decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971),
which explained the centrality of the disparate-impact
concept to effective enforcement of Title VII. The Court’s
order and opinion, I anticipate, will not have staying
power.
I
A
The Court’s recitation of the facts leaves out important
parts of the story. Firefighting is a profession in which the
legacy of racial discrimination casts an especially long
shadow. In extending Title VII to state and local govern
ment employers in 1972, Congress took note of a U. S.
——————
1 Never
mind the flawed tests New Haven used and the better selec
tion 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 4–9. 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 dispropor
tionate results?
Cite as: 557 U. S. ____ (2009) 3
GINSBURG, J., dissenting
Commission on Civil Rights (USCCR) report finding racial
discrimination in municipal employment even “more
pervasive than in the private sector.” H. R. Rep. No. 92–
238, p. 17 (1971). According to the report, overt racism
was partly to blame, but so too was a failure on the part of
municipal employers to apply merit-based employment
principles. In making hiring and promotion decisions,
public employers often “rel[ied] on criteria unrelated to job
performance,” including nepotism or political patronage.
118 Cong. Rec. 1817 (1972). Such flawed selection meth
ods served to entrench preexisting racial hierarchies. The
USCCR report singled out police and fire departments for
having “[b]arriers to equal employment . . . greater . . .
than in any other area of State or local government,” with
African-Americans “hold[ing] almost no positions in the
officer ranks.” Ibid. See also National Commission on
Fire Prevention and Control, America Burning 5 (1973)
(“Racial minorities are under-represented in the fire de
partments in nearly every community in which they
live.”).
The city of New Haven (City) was no exception. In the
early 1970’s, African-Americans and Hispanics composed
30 percent of New Haven’s population, but only 3.6 per
cent of the City’s 502 firefighters. The racial disparity in
the officer ranks was even more pronounced: “[O]f the 107
officers in the Department only one was black, and he held
the lowest rank above private.” Firebird Soc. of New
Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D.
457, 460 (Conn. 1975).
Following a lawsuit and settlement agreement, see ibid.,
the City initiated efforts to increase minority representa
tion in the New Haven Fire Department (Department).
Those litigation-induced efforts produced some positive
change. New Haven’s population includes a greater pro
portion of minorities today than it did in the 1970’s:
Nearly 40 percent of the City’s residents are African
4 RICCI v. DESTEFANO
GINSBURG, J., dissenting
American and more than 20 percent are Hispanic. Among
entry-level firefighters, minorities are still underrepre
sented, but not starkly so. As of 2003, African-Americans
and Hispanics constituted 30 percent and 16 percent of the
City’s firefighters, respectively. In supervisory positions,
however, significant disparities remain. Overall, the
senior officer ranks (captain and higher) are nine percent
African-American and nine percent Hispanic. Only one of
the Department’s 21 fire captains is African-American.
See App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter
CA2 App.). It is against this backdrop of entrenched
inequality that the promotion process at issue in this
litigation should be assessed.
B
By order of its charter, New Haven must use competi
tive examinations to fill vacancies in fire officer and other
civil-service positions. Such examinations, the City’s civil
service rules specify, “shall be practical in nature, shall
relate to matters which fairly measure the relative fitness
and capacity of the applicants to discharge the duties of
the position which they seek, and shall take into account
character, training, experience, physical and mental fit
ness.” Id., at A331. The City may choose among a variety
of testing methods, including written and oral exams and
“[p]erformance tests to demonstrate skill and ability in
performing actual work.” Id., at A332.
New Haven, the record indicates, did not closely con
sider what sort of “practical” examination would “fairly
measure the relative fitness and capacity of the applicants
to discharge the duties” of a fire officer. Instead, the City
simply adhered to the testing regime outlined in its two
decades-old contract with the local firefighters’ union: a
written exam, which would account for 60 percent of an
applicant’s total score, and an oral exam, which would
account for the remaining 40 percent. Id., at A1045. In
Cite as: 557 U. S. ____ (2009) 5
GINSBURG, J., dissenting
soliciting bids from exam development companies, New
Haven made clear that it would entertain only “proposals
that include a written component that will be weighted at
60%, and an oral component that will be weighted at
40%.” Id., at A342. Chad Legel, a representative of the
winning bidder, Industrial/Organizational Solutions, Inc.
(IOS), testified during his deposition that the City never
asked whether alternative methods might better measure
the qualities of a successful fire officer, including leader
ship skills and command presence. See id., at A522 (“I
was under contract and had responsibility only to create
the oral interview and the written exam.”).
Pursuant to New Haven’s specifications, IOS developed
and administered the oral and written exams. The results
showed significant racial disparities. On the lieutenant
exam, the pass rate for African-American candidates was
about one-half the rate for Caucasian candidates; the pass
rate for Hispanic candidates was even lower. On the
captain exam, both African-American and Hispanic candi
dates passed at about half the rate of their Caucasian
counterparts. See App. 225–226. More striking still,
although nearly half of the 77 lieutenant candidates were
African-American or Hispanic, none would have been
eligible for promotion to the eight positions then vacant.
The highest scoring African-American candidate ranked
13th; the top Hispanic candidate was 26th. As for the
seven then-vacant captain positions, two Hispanic candi
dates would have been eligible, but no African-Americans.
The highest scoring African-American candidate ranked
15th. See id., at 218–219.
These stark disparities, the Court acknowledges, suf
ficed to state a prima facie case under Title VII’s dispa
rate-impact provision. See ante, at 27 (“The pass rates of
minorities . . . f[e]ll well below the 80-percent standard set
by the [Equal Employment Opportunity Commission
(EEOC)] to implement the disparate-impact provision of
6 RICCI v. DESTEFANO
GINSBURG, J., dissenting
Title VII.”). New Haven thus had cause for concern about
the prospect of Title VII litigation and liability. City
officials referred the matter to the New Haven Civil Ser
vice Board (CSB), the entity responsible for certifying the
results of employment exams.
Between January and March 2004, the CSB held five
public meetings to consider the proper course. At the first
meeting, New Haven’s Corporation Counsel, Thomas Ude,
described the legal standard governing Title VII disparate
impact claims. Statistical imbalances alone, Ude correctly
recognized, do not give rise to liability. Instead, presented
with a disparity, an employer “has the opportunity and the
burden of proving that the test is job-related and consis
tent with business necessity.” CA2 App. A724. A Title VII
plaintiff may attempt to rebut an employer’s showing of
job-relatedness and necessity by identifying alternative
selection methods that would have been at least as valid
but with “less of an adverse or disparate or discriminatory
effect.” Ibid. See also id., at A738. Accordingly, the CSB
Commissioners understood, their principal task was to
decide whether they were confident about the reliability of
the exams: Had the exams fairly measured the qualities of
a successful fire officer despite their disparate results?
Might an alternative examination process have identified
the most qualified candidates without creating such sig
nificant racial imbalances?
Seeking a range of input on these questions, the CSB
heard from test takers, the test designer, subject-matter
experts, City officials, union leaders, and community
members. Several candidates for promotion, who did not
yet know their exam results, spoke at the CSB’s first two
meetings. Some candidates favored certification. The
exams, they emphasized, had closely tracked the assigned
study materials. Having invested substantial time and
money to prepare themselves for the test, they felt it
would be unfair to scrap the results. See, e.g., id., at
Cite as: 557 U. S. ____ (2009) 7
GINSBURG, J., dissenting
A772–A773, A785–A789.
Other firefighters had a different view. A number of the
exam questions, they pointed out, were not germane to
New Haven’s practices and procedures. See, e.g., id., at
A774–A784. At least two candidates opposed to certifica
tion noted unequal access to study materials. Some indi
viduals, they asserted, had the necessary books even
before the syllabus was issued. Others had to invest
substantial sums to purchase the materials and “wait a
month and a half for some of the books because they were
on back-order.” Id., at A858. These disparities, it was
suggested, fell at least in part along racial lines. While
many Caucasian applicants could obtain materials and
assistance from relatives in the fire service, the over
whelming majority of minority applicants were “first
generation firefighters” without such support networks.
See id., at A857–A861, A886–A887.
A representative of the Northeast Region of the Interna
tional Association of Black Professional Firefighters,
Donald Day, also spoke at the second meeting. Statistical
disparities, he told the CSB, had been present in the
Department’s previous promotional exams. On earlier
tests, however, a few minority candidates had fared well
enough to earn promotions. Id., at A828. See also App.
218–219. Day contrasted New Haven’s experience with
that of nearby Bridgeport, where minority firefighters held
one-third of lieutenant and captain positions. Bridgeport,
Day observed, had once used a testing process similar to
New Haven’s, with a written exam accounting for 70
percent of an applicant’s score, an oral exam for 25 per
cent, and seniority for the remaining five percent. CA2
App. A830. Bridgeport recognized, however, that the oral
component, more so than the written component, ad
dressed the sort of “real-life scenarios” fire officers encoun
ter on the job. Id., at A832. Accordingly, that city
“changed the relative weights” to give primacy to the oral
8 RICCI v. DESTEFANO
GINSBURG, J., dissenting
exam. Ibid. Since that time, Day reported, Bridgeport
had seen minorities “fairly represented” in its exam re
sults. Ibid.
The CSB’s third meeting featured IOS representative
Legel, the leader of the team that had designed and ad
ministered the exams for New Haven. Several City offi
cials also participated in the discussion. Legel described
the exam development process in detail. The City, he
recounted, had set the “parameters” for the exams, specifi
cally, the requirement of written and oral components
with a 60/40 weighting. Id., at A923, A974. For security
reasons, Department officials had not been permitted to
check the content of the questions prior to their admini
stration. Instead, IOS retained a senior fire officer from
Georgia to review the exams “for content and fidelity to
the source material.” Id., at A936. Legel defended the
exams as “facially neutral,” and stated that he “would
stand by the[ir] validity.” Id., at A962. City officials did
not dispute the neutrality of IOS’s work. But, they cau
tioned, even if individual exam questions had no intrinsic
bias, the selection process as a whole may nevertheless
have been deficient. The officials urged the CSB to consult
with experts about the “larger picture.” Id., at A1012.
At its fourth meeting, CSB solicited the views of three
individuals with testing-related expertise. Dr. Christo
pher Hornick, an industrial/organizational psychology
consultant with 25 years’ experience with police and fire
fighter testing, described the exam results as having
“relatively high adverse impact.” Id., at A1028. Most of
the tests he had developed, Hornick stated, exhibited
“significantly and dramatically less adverse impact.” Id.,
at A1029. Hornick downplayed the notion of “facial neu
trality.” It was more important, he advised the CSB, to
consider “the broader issue of how your procedures and
your rules and the types of tests that you are using are
contributing to the adverse impact.” Id., at A1038.
Cite as: 557 U. S. ____ (2009) 9
GINSBURG, J., dissenting
Specifically, Hornick questioned New Haven’s union
prompted 60/40 written/oral examination structure, noting
the availability of “different types of testing procedures
that are much more valid in terms of identifying the best
potential supervisors in [the] fire department.” Id., at
A1032. He suggested, for example, “an assessment center
process, which is essentially an opportunity for candidates
. . . to demonstrate how they would address a particular
problem as opposed to just verbally saying it or identifying
the correct option on a written test.” Id., at A1039–A1040.
Such selection processes, Hornick said, better “identif[y]
the best possible people” and “demonstrate dramatically
less adverse impacts.” Ibid. Hornick added:
“I’ve spoken to at least 10,000, maybe 15,000 fire
fighters in group settings in my consulting practice
and I have never one time ever had anyone in the fire
service say to me, ‘Well, the person who answers—
gets the highest score on a written job knowledge,
multiple-guess test makes the best company officer.’
We know that it’s not as valid as other procedures
that exist.” Id., at A1033.
See also id., at A1042–A1043 (“I think a person’s leader
ship skills, their command presence, their interpersonal
skills, their management skills, their tactical skills could
have been identified and evaluated in a much more appro
priate way.”).
Hornick described the written test itself as “reasonably
good,” id., at A1041, but he criticized the decision not to
allow Department officials to check the content. According
to Hornick, this “inevitably” led to “test[ing] for processes
and procedures that don’t necessarily match up into the
department.” Id., at A1034–A1035. He preferred “experts
from within the department who have signed confidential
ity agreements . . . to make sure that the terminology and
equipment that’s being identified from standardized read
10 RICCI v. DESTEFANO
GINSBURG, J., dissenting
ing sources apply to the department.” Id., at A1035.
Asked whether he thought the City should certify the
results, Hornick hedged: “There is adverse impact in the
test. That will be identified in any proceeding that you
have. You will have industrial psychology experts, if it
goes to court, on both sides. And it will not be a pretty or
comfortable position for anyone to be in.” Id., at A1040–
A1041. Perhaps, he suggested, New Haven might certify
the results but immediately begin exploring “alternative
ways to deal with these issues” in the future. Id., at
A1041.
The two other witnesses made relatively brief appear
ances. Vincent Lewis, a specialist with the Department of
Homeland Security and former fire officer in Michigan,
believed the exams had generally tested relevant material,
although he noted a relatively heavy emphasis on ques
tions pertaining to being an “apparatus driver.” He sug
gested that this may have disadvantaged test takers “who
had not had the training or had not had an opportunity to
drive the apparatus.” Id., at A1051. He also urged the
CSB to consider whether candidates had, in fact, enjoyed
equal access to the study materials. Ibid. Cf. supra, at 7.
Janet Helms, a professor of counseling psychology at
Boston College, observed that two-thirds of the incumbent
fire officers who submitted job analyses to IOS during the
exam design phase were Caucasian. Members of different
racial groups, Helms told the CSB, sometimes do their jobs
in different ways, “often because the experiences that are
open to white male firefighters are not open to members of
these other under-represented groups.” CA2 App. A1063–
A1064. The heavy reliance on job analyses from white
firefighters, she suggested, may thus have introduced an
element of bias. Id., at A1063.
The CSB’s fifth and final meeting began with state
ments from City officials recommending against certifica
tion. Ude, New Haven’s counsel, repeated the applicable
Cite as: 557 U. S. ____ (2009) 11
GINSBURG, J., dissenting
disparate-impact standard:
“[A] finding of adverse impact is the beginning, not
the end, of a review of testing procedures. Where a
procedure demonstrates adverse impact, you look to
how closely it is related to the job that you’re looking
to fill and you also look at whether there are other
ways to test for those qualities, those traits, those po
sitions that are equally valid with less adverse im
pact.” Id., at A1100–A1101.
New Haven, Ude and other officials asserted, would be
vulnerable to Title VII liability under this standard. Even
if the exams were “facially neutral,” significant doubts had
been raised about whether they properly assessed the key
attributes of a successful fire officer. Id., at A1103. See
also id., at A1125 (“Upon close reading of the exams, the
questions themselves would appear to test a candidate’s
ability to memorize textbooks but not necessarily to iden
tify solutions to real problems on the fire ground.”). More
over, City officials reminded the CSB, Hornick and others
had identified better, less discriminatory selection meth
ods–such as assessment centers or exams with a more
heavily weighted oral component. Id., at A1108–A1109,
A1129–A1130.
After giving members of the public a final chance to
weigh in, the CSB voted on certification, dividing 2 to 2.
By rule, the result was noncertification. Voting no, Com
missioner Webber stated, “I originally was going to vote to
certify. . . . But I’ve heard enough testimony here to give
me great doubts about the test itself and . . . some of the
procedures. And I believe we can do better.” Id., at
A1157. Commissioner Tirado likewise concluded that the
“flawed” testing process counseled against certification.
Id., at A1158. Chairman Segaloff and Commissioner
Caplan voted to certify. According to Segaloff, the testi
mony had not “compelled [him] to say this exam was not
12 RICCI v. DESTEFANO
GINSBURG, J., dissenting
job-related,” and he was unconvinced that alternative
selection processes would be “less discriminatory.” Id., at
A1159–A1160. Both Segalhoff and Caplan, however,
urged the City to undertake civil service reform. Id., at
A1150–A1154.
C
Following the CSB’s vote, petitioners—17 white fire
fighters and one Hispanic firefighter, all of whom had high
marks on the exams—filed suit in the United States Dis
trict Court for the District of Connecticut. They named as
defendants—respondents here—the City, several City
officials, a local political activist, and the two CSB mem
bers who voted against certifying the results. By opposing
certification, petitioners alleged, respondents had dis
criminated against them in violation of Title VII’s dispa
rate-treatment provision and the Fourteenth Amend
ment’s Equal Protection Clause. The decision not to
certify, respondents answered, was a lawful effort to com
ply with Title VII’s disparate-impact provision and thus
could not have run afoul of Title VII’s prohibition of dispa
rate treatment. Characterizing respondents’ stated ra
tionale as a mere pretext, petitioners insisted that New
Haven would have had a solid defense to any disparate
impact suit.
In a decision summarily affirmed by the Court of Ap
peals, the District Court granted summary judgment for
respondents. 554 F. Supp. 2d 142 (Conn. 2006), aff’d, 530
F.3d 87 (CA2 2008) (per curiam). Under Second Circuit
precedent, the District Court explained, “the intent to
remedy the disparate impact” of a promotional exam “is
not equivalent to an intent to discriminate against non
minority applicants.” 554 F. Supp. 2d, at 157 (quoting
Hayden v. County of Nassau, 180 F.3d 42, 51 (CA2 1999)).
Rejecting petitioners’ pretext argument, the court ob
served that the exam results were sufficiently skewed “to
Cite as: 557 U. S. ____ (2009) 13
GINSBURG, J., dissenting
make out a prima facie case of discrimination” under Title
VII’s disparate-impact provision. 554 F. Supp. 2d, at 158.
Had New Haven gone forward with certification and been
sued by aggrieved minority test takers, the City would
have been forced to defend tests that were presumptively
invalid. And, as the CSB testimony of Hornick and others
indicated, overcoming that presumption would have been
no easy task. Id., at 153–156. Given Title VII’s preference
for voluntary compliance, the court held, New Haven could
lawfully discard the disputed exams even if the City had
not definitively “pinpoint[ed]” the source of the disparity
and “ha[d] not yet formulated a better selection method.”
Id., at 156.
Respondents were no doubt conscious of race during
their decisionmaking process, the court acknowledged, but
this did not mean they had engaged in racially disparate
treatment. The conclusion they had reached and the
action thereupon taken were race-neutral in this sense:
“[A]ll the test results were discarded, no one was pro
moted, and firefighters of every race will have to partici
pate in another selection process to be considered for
promotion.” Id., at 158. New Haven’s action, which gave
no individual a preference, “was ‘simply not analogous to a
quota system or a minority set-aside where candidates, on
the basis of their race, are not treated uniformly.’ ” Id., at
157 (quoting Hayden, 180 F. 3d, at 50). For these and
other reasons, the court also rejected petitioners’ equal
protection claim.
II
A
Title VII became effective in July 1965. Employers
responded to the law by eliminating rules and practices
that explicitly barred racial minorities from “white” jobs.
But removing overtly race-based job classifications did not
usher in genuinely equal opportunity. More subtle—and
14 RICCI v. DESTEFANO
GINSBURG, J., dissenting
sometimes unconscious—forms of discrimination replaced
once undisguised restrictions.
In Griggs v. Duke Power Co., 401 U.S. 424 (1971), this
Court responded to that reality and supplied important
guidance on Title VII’s mission and scope. Congress, the
landmark decision recognized, aimed beyond “disparate
treatment”; it targeted “disparate impact” as well. Title
VII’s original text, it was plain to the Court, “proscribe[d]
not only overt discrimination but also practices that are
fair in form, but discriminatory in operation.” Id., at 431.2
Only by ignoring Griggs could one maintain that inten
tionally disparate treatment alone was Title VII’s “origi
nal, foundational prohibition,” and disparate impact a
mere afterthought. Cf. ante, at 21.
Griggs addressed Duke Power Company’s policy that
applicants for positions, save in the company’s labor de
partment, be high school graduates and score satisfacto
rily on two professionally prepared aptitude tests.
“[T]here was no showing of a discriminatory purpose in
the adoption of the diploma and test requirements.” 401
U. S., at 428. The policy, however, “operated to render
ineligible a markedly disproportionate number of [African-
Americans].” Id., at 429. At the time of the litigation, in
——————
2 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 other
wise adversely affect his status as an employee, because of such indi
vidual’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 discrimi
nate 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 ed.)). See also 401 U. S., at 433–
436 (explaining that §703(h) authorizes only tests that are “demonstra
bly a reasonable measure of job performance”).
Cite as: 557 U. S. ____ (2009) 15
GINSBURG, J., dissenting
North Carolina, where the Duke Power plant was located,
34 percent of white males, but only 12 percent of African-
American males, had high school diplomas. Id., at 430,
n. 6. African-Americans also failed the aptitude tests at a
significantly higher rate than whites. Ibid. Neither re
quirement had been “shown to bear a demonstrable rela
tionship to successful performance of the jobs for which it
was used.” Id., at 431.
The Court unanimously held that the company’s di
ploma and test requirements violated Title VII. “[T]o
achieve equality of employment opportunities,” the Court
comprehended, Congress “directed the thrust of the Act to
the consequences of employment practices, not simply the
motivation.” Id., at 429, 432. That meant “unnecessary
barriers to employment” must fall, even if “neutral on
their face” and “neutral in terms of intent.” Id., at 430,
431. “The touchstone” for determining whether a test or
qualification meets Title VII’s measure, the Court said, is
not “good intent or the absence of discriminatory intent”; it
is “business necessity.” Id., at 431, 432. Matching proce
dure to substance, the Griggs Court observed, Congress
“placed on the employer the burden of showing that any
given requirement . . . ha[s] a manifest relationship to the
employment in question.” Id., at 432.
In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975),
the Court, again without dissent, elaborated on Griggs.
When an employment test “select[s] applicants for hire or
promotion in a racial pattern significantly different from
the pool of applicants,” the Court reiterated, the employer
must demonstrate a “manifest relationship” between test
and job. 422 U. S., at 425. Such a showing, the Court
cautioned, does not necessarily mean the employer pre
vails: “[I]t remains open to the complaining party to show
that other tests or selection devices, without a similarly
undesirable racial effect, would also serve the employer’s
legitimate interest in ‘efficient and trustworthy workman
16 RICCI v. DESTEFANO
GINSBURG, J., dissenting
ship.’ ” Ibid.
Federal trial and appellate courts applied Griggs and
Albemarle to disallow a host of hiring and promotion
practices that “operate[d] as ‘built in headwinds’ for mi
nority groups.” Griggs, 401 U. S., at 432. Practices dis
criminatory in effect, courts repeatedly emphasized, could
be maintained only upon an employer’s showing of “an
overriding and compelling business purpose.” Chrisner v.
Complete Auto Transit, Inc., 645 F.2d 1251, 1261, n. 9
(CA6 1981).3 That a practice served “legitimate manage
ment functions” did not, it was generally understood,
suffice to establish business necessity. Williams v. Colo­
rado Springs, Colo., School Dist., 641 F.2d 835, 840–841
(CA10 1981) (internal quotation marks omitted). Among
selection methods cast aside for lack of a “manifest rela
tionship” to job performance were a number of written
——————
3 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 chal
lenged 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” (internal 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.”).
Cite as: 557 U. S. ____ (2009) 17
GINSBURG, J., dissenting
hiring and promotional examinations for firefighters.4
Moving in a different direction, in Wards Cove Packing
Co. v. Atonio, 490 U.S. 642 (1989), a bare majority of this
Court significantly modified the Griggs-Albemarle delinea
tion of Title VII’s disparate-impact proscription. As to
business necessity for a practice that disproportionately
excludes members of minority groups, Wards Cove held,
the employer bears only the burden of production, not the
burden of persuasion. 490 U. S., at 659–660. And in place
of the instruction that the challenged practice “must have
a manifest relationship to the employment in question,”
Griggs, 401 U. S., at 432, Wards Cove said that the prac
tice would be permissible as long as it “serve[d], in a sig
nificant way, the legitimate employment goals of the
employer.” 490 U. S., at 659.
In response to Wards Cove and “a number of [other]
recent decisions by the United States Supreme Court that
sharply cut back on the scope and effectiveness of [civil
rights] laws,” Congress enacted the Civil Rights Act of
1991. H. R. Rep. No. 102–40, pt. 2, p. 2 (1991). Among the
1991 alterations, Congress formally codified the disparate
impact component of Title VII. In so amending the stat
ute, Congress made plain its intention to restore “the
concepts of ‘business necessity’ and ‘job related’ enunciated
by the Supreme Court in Griggs v. Duke Power Co. . . .
and in other Supreme Court decisions prior to Wards Cove
Packing Co. v. Atonio.” §3(2), 105 Stat. 1071. Once a
complaining party demonstrates that an employment
——————
4 See,e.g., Nash v. Jacksonville, 837 F.2d 1534 (CA11 1988), vacated,
490 U.S. 1103 (1989), opinion reinstated, 905 F.2d 355 (CA11 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 v.
Beecher, 504 F.2d 1017 (CA1 1974).
18 RICCI v. DESTEFANO
GINSBURG, J., dissenting
practice causes a disparate impact, amended Title VII
states, the burden is on the employer “to demonstrate that
the challenged practice is job related for the position in
question and consistent with business necessity.” 42
U.S. C. §2000e–2(k)(1)(A)(i). If the employer carries that
substantial burden, the complainant may respond by
identifying “an alternative employment practice” which
the employer “refuses to adopt.” §2000e–2(k)(1)(A)(ii), (C).
B
Neither Congress’ enactments nor this Court’s Title VII
precedents (including the now-discredited decision in
Wards Cove) offer even a hint of “conflict” between an
employer’s obligations under the statute’s disparate
treatment and disparate-impact provisions. Cf. ante, at
20. Standing on an equal footing, these twin pillars of
Title VII advance the same objectives: ending workplace
discrimination and promoting genuinely equal opportu
nity. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 800 (1973).
Yet the Court today sets at odds the statute’s core direc
tives. When an employer changes an employment practice
in an effort to comply with Title VII’s disparate-impact
provision, the Court reasons, it acts “because of race”—
something Title VII’s disparate-treatment provision, see
§2000e–2(a)(1), generally forbids. Ante, at 20. This char
acterization of an employer’s compliance-directed action
shows little attention to Congress’ design or to the Griggs
line of cases Congress recognized as pathmarking.
“[O]ur task in interpreting separate provisions of a
single Act is to give the Act the most harmonious, compre
hensive meaning possible in light of the legislative policy
and purpose.” Weinberger v. Hynson, Westcott & Dunning,
Inc., 412 U.S. 609, 631–632 (1973) (internal quotation
marks omitted). A particular phrase need not “extend to
the outer limits of its definitional possibilities” if an incon
Cite as: 557 U. S. ____ (2009) 19
GINSBURG, J., dissenting
gruity would result. Dolan v. Postal Service, 546 U.S.
481, 486 (2006). Here, Title VII’s disparate-treatment
and disparate-impact proscriptions must be read as
complementary.
In codifying the Griggs and Albemarle instructions,
Congress declared unambiguously that selection criteria
operating to the disadvantage of minority group members
can be retained only if justified by business necessity.5 In
keeping with Congress’ design, employers who reject such
criteria due to reasonable doubts about their reliability
can hardly be held to have engaged in discrimination
“because of” race. A reasonable endeavor to comply with
the law and to ensure that qualified candidates of all races
have a fair opportunity to compete is simply not what
Congress meant to interdict. I would therefore hold that
an employer who jettisons a selection device when its
disproportionate racial impact becomes apparent does not
violate Title VII’s disparate-treatment bar automatically
or at all, subject to this key condition: The employer must
have good cause to believe the device would not withstand
examination for business necessity. Cf. Faragher v. Boca
Raton, 524 U.S. 775, 806 (1998) (observing that it accords
with “clear statutory policy” for employers “to prevent
violations” and “make reasonable efforts to discharge their
duty” under Title VII).
EEOC’s interpretative guidelines are corroborative.
“[B]y the enactment of title VII,” the guidelines state,
“Congress did not intend to expose those who comply with
the Act to charges that they are violating the very statute
they are seeking to implement.” 29 CFR §1608.1(a)
(2008). Recognizing EEOC’s “enforcement responsibility”
——————
5 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 4–
5, 7–8, under that standard? Neither the Court nor the concurring
opinions attempt to defend the ratio.
20 RICCI v. DESTEFANO
GINSBURG, J., dissenting
under Title VII, we have previously accorded the Commis
sion’s position respectful consideration. See, e.g., Albe­
marle, 422 U. S., at 431; Griggs, 401 U. S., at 434. Yet the
Court today does not so much as mention EEOC’s counsel.
Our precedents defining the contours of Title VII’s
disparate-treatment prohibition further confirm the ab
sence of any intra-statutory discord. In Johnson v. Trans­
portation Agency, Santa Clara Cty., 480 U.S. 616 (1987),
we upheld a municipal employer’s voluntary affirmative
action plan against a disparate-treatment challenge.
Pursuant to the plan, the employer selected a woman for a
road-dispatcher position, a job category traditionally
regarded as “male.” A male applicant who had a slightly
higher interview score brought suit under Title VII. This
Court rejected his claim and approved the plan, which
allowed consideration of gender as “one of numerous fac
tors.” Id., at 638. Such consideration, we said, is “fully
consistent with Title VII” because plans of that order can
aid “in eliminating the vestiges of discrimination in the
workplace.” Id., at 642.
This litigation does not involve affirmative action. But
if the voluntary affirmative action at issue in Johnson
does not discriminate within the meaning of Title VII,
neither does an employer’s reasonable effort to comply
with Title VII’s disparate-impact provision by refrain-
ing from action of doubtful consistency with business
necessity.
C
To “reconcile” the supposed “conflict” between disparate
treatment and disparate impact, the Court offers an enig
matic standard. Ante, at 20. Employers may attempt to
comply with Title VII’s disparate-impact provision, the
Court declares, only where there is a “strong basis in
evidence” documenting the necessity of their action. Ante,
at 22. The Court’s standard, drawn from inapposite equal
Cite as: 557 U. S. ____ (2009) 21
GINSBURG, J., dissenting
protection precedents, is not elaborated. One is left to
wonder what cases would meet the standard and why the
Court is so sure this case does not.
1
In construing Title VII, I note preliminarily, equal
protection doctrine is of limited utility. The Equal Protec
tion Clause, this Court has held, prohibits only intentional
discrimination; it does not have a disparate-impact com
ponent. 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 to eliminate
all forms of employment discrimination, unintentional as
well as deliberate. Until today, cf. ante, at 25; ante, p. 1
(SCALIA, J., concurring), this Court has never questioned
the constitutionality of the disparate-impact component of
Title VII, and for good reason. By instructing employers
to avoid needlessly exclusionary selection processes, Title
VII’s disparate-impact provision calls for a “race-neutral
means to increase minority . . . participation”—something
this Court’s equal protection precedents also 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 very radicalism of holding dispa
rate impact doctrine unconstitutional as a matter of equal
protection,” moreover, “suggests that only a very uncom
promising court would issue such a decision.” Primus,
Equal Protection and Disparate Impact: Round Three, 117
Harv. L. Rev. 493, 585 (2003).
The cases from which the Court draws its strong-basis
in-evidence standard are particularly inapt; they concern
the constitutionality of absolute racial preferences. See
Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 277 (1986)
(plurality opinion) (invalidating a school district’s plan to
lay off nonminority teachers while retaining minority
teachers with less seniority); Croson, 488 U. S., at 499–500
22 RICCI v. DESTEFANO
GINSBURG, J., dissenting
(rejecting a set-aside program for minority contractors
that operated as “an unyielding racial quota”). An em
ployer’s effort to avoid Title VII liability by repudiating a
suspect selection method scarcely resembles those cases.
Race was not merely a relevant consideration in Wygant
and Croson; it was the decisive factor. Observance of Title
VII’s disparate-impact provision, in contrast, calls for no
racial preference, absolute or otherwise. The very purpose
of the provision is to ensure that individuals are hired and
promoted based on qualifications manifestly necessary to
successful performance of the job in question, qualifica
tions that do not screen out members of any race.6
2
The Court’s decision in this litigation underplays a
dominant Title VII theme. This Court has repeatedly
emphasized that the statute “should not be read to
thwart” efforts at voluntary compliance. Johnson, 480
U. S., at 630. Such compliance, we have explained, is “the
preferred means of achieving [Title VII’s] objectives.”
Firefighters v. Cleveland, 478 U.S. 501, 515 (1986). See
also Kolstad v. American Dental Assn., 527 U.S. 526, 545
(1999) (“Dissuading employers from [taking voluntary
action] to prevent discrimination in the workplace is di
rectly contrary to the purposes underlying Title VII.”); 29
——————
6 Even in Title VII cases involving race-conscious (or gender
conscious) affirmative-action plans, the Court has never proposed a
strong-basis-in-evidence 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.”).
Cite as: 557 U. S. ____ (2009) 23
GINSBURG, J., dissenting
CFR §1608.1(c). The strong-basis-in-evidence standard,
however, as barely described in general, and cavalierly
applied in this case, makes voluntary compliance a haz
ardous venture.
As a result of today’s decision, an employer who discards
a dubious selection process can anticipate costly disparate
treatment litigation in which its chances for success—even
for surviving a summary-judgment motion—are highly
problematic. Concern about exposure to disparate-impact
liability, however well grounded, is insufficient to insulate
an employer from attack. Instead, the employer must
make a “strong” showing that (1) its selection method was
“not job related and consistent with business necessity,” or
(2) that it refused to adopt “an equally valid, less
discriminatory alternative.” Ante, at 28. It is hard to see
how these requirements differ from demanding that an
employer establish “a provable, actual violation” against
itself. Cf. ante, at 24. There is indeed a sharp conflict
here, but it is not the false one the Court describes be
tween Title VII’s core provisions. It is, instead, the discor
dance of the Court’s opinion with the voluntary compli
ance ideal. Cf. Wygant, 476 U. S., at 290 (O’Connor, J.,
concurring in part and concurring in judgment) (“The
imposition of a requirement that public employers make
findings that they have engaged in illegal discrimina-
tion before they [act] would severely undermine public
employers’ incentive to meet voluntarily their civil rights
obligations.”).7
——————
7 Notably,prior decisions applying a strong-basis-in-evidence stan
dard 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 had offered “nothing approaching a prima facie case.” Rich­
mond v. J. A. Croson Co., 488 U.S. 469, 500 (1989). The Court did not
suggest that anything beyond a prima facie case would have been
required. In the context of race-based electoral districting, the Court
has indicated that a “strong basis” exists when the “threshold condi
24 RICCI v. DESTEFANO
GINSBURG, J., dissenting
3
The Court’s additional justifications for announcing a
strong-basis-in-evidence standard are unimpressive.
First, discarding the results of tests, the Court suggests,
calls for a heightened standard because it “upset[s] an
employee’s legitimate expectation.” Ante, at 25. This
rationale puts the cart before the horse. The legitimacy of
an employee’s expectation depends on the legitimacy of the
selection method. If an employer reasonably concludes
that an exam fails to identify the most qualified individu
als and needlessly shuts out a segment of the applicant
pool, Title VII surely does not compel the employer to hire
or promote based on the test, however unreliable it may
be. Indeed, the statute’s prime objective is to prevent
exclusionary practices from “operat[ing] to ‘freeze’ the
status quo.” Griggs, 401 U. S., at 430.
Second, the Court suggests, anything less than a strong
basis-in-evidence standard risks creating “a de facto quota
system, in which . . . an employer could discard test re
sults . . . with the intent of obtaining the employer’s pre
ferred racial balance.” Ante, at 22. Under a reasonable
ness standard, however, an employer could not cast aside
a selection method based on a statistical disparity alone.8
The employer must have good cause to believe that the
method screens out qualified applicants and would be
difficult to justify as grounded in business necessity.
——————
tions” for liability are present. Bush v. Vera, 517 U.S. 952, 978 (1996)
(plurality opinion).
8 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 24. See also ante, at 20, 27–28. But as the part of the story the
Court leaves out, see supra, at 2–12, 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.
Cite as: 557 U. S. ____ (2009) 25
GINSBURG, J., dissenting
Should an employer repeatedly reject test results, it would
be fair, I agree, to infer that the employer is simply seek
ing a racially balanced outcome and is not genuinely
endeavoring to comply with Title VII.
D
The Court stacks the deck further by denying respon
dents any chance to satisfy the newly announced strong
basis-in-evidence standard. When this Court formulates a
new legal rule, the ordinary course is to remand and allow
the lower courts to apply the rule in the first instance.
See, e.g., Johnson v. California, 543 U.S. 499, 515 (2005);
Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982). I
see no good reason why the Court fails to follow that
course in this case. Indeed, the sole basis for the Court’s
peremptory ruling is the demonstrably false pretension
that respondents showed “nothing more” than “a signifi
cant statistical disparity.” Ante, at 27–28; see supra, at
24, n. 8. 9
——————
9 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 em
ployment 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 author
ity 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 poten
tial adverse impact.” §1608.3(a). If “affirmative action” is in order, so
is the lesser step of discarding a dubious selection device.
26 RICCI v. DESTEFANO
GINSBURG, J., dissenting
III
A
Applying what I view as the proper standard to the
record thus far made, I would hold that New Haven had
ample cause to believe its selection process was flawed and
not justified by business necessity. Judged by that stan
dard, petitioners have not shown that New Haven’s failure
to certify the exam results violated Title VII’s disparate
treatment provision.10
The City, all agree, “was faced with a prima facie case of
disparate-impact liability,” ante, at 27: The pass rate for
minority candidates was half the rate for nonminority
candidates, and virtually no minority candidates would
have been eligible for promotion had the exam results
been certified. Alerted to this stark disparity, the CSB
heard expert and lay testimony, presented at public hear
ings, in an endeavor to ascertain whether the exams were
fair and consistent with business necessity. Its investiga
tion revealed grave cause for concern about the exam
process itself and the City’s failure to consider alternative
selection devices.
Chief among the City’s problems was the very nature of
the tests for promotion. In choosing to use written and
oral exams with a 60/40 weighting, the City simply ad
hered to the union’s preference and apparently gave no
consideration to whether the weighting was likely to
identify the most qualified fire-officer candidates.11 There
——————
10 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.
11 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 7. Under the
Cite as: 557 U. S. ____ (2009) 27
GINSBURG, J., dissenting
is strong reason to think it was not.
Relying heavily on written tests to select fire officers is a
questionable practice, to say the least. Successful fire
officers, the City’s description of the position makes clear,
must have the “[a]bility to lead personnel effectively,
maintain discipline, promote harmony, exercise sound
judgment, and cooperate with other officials.” CA2 App.
A432. These qualities are not well measured by written
tests. Testifying before the CSB, Christopher Hornick, an
exam-design expert with more than two decades of rele
vant experience, was emphatic on this point: Leadership
skills, command presence, and the like “could have been
identified and evaluated in a much more appropriate
way.” Id., at A1042–A1043.
Hornick’s commonsense observation is mirrored in case
law and in Title VII’s administrative guidelines. Courts
have long criticized written firefighter promotion exams
for being “more probative of the test-taker’s ability to
recall what a particular text stated on a given topic than
of his firefighting or supervisory knowledge and abilities.”
——————
Uniform 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) (“be
fore 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 “pre
sume” that the two-decades-old 60/40 formula was adopted for a “ra
tional reason” because it “was the result of a union-negotiated collective
bargaining agreement.” Cf. ante, at 30. 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”).
28 RICCI v. DESTEFANO
GINSBURG, J., dissenting
Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv.,
625 F. Supp. 527, 539 (NJ 1985). A fire officer’s job, courts
have observed, “involves complex behaviors, good inter
personal skills, the ability to make decisions under tre
mendous pressure, and a host of other abilities—none of
which is easily measured by a written, multiple choice
test.” Firefighters Inst. for Racial Equality v. St. Louis,
616 F.2d 350, 359 (CA8 1980).12 Interpreting the Uniform
Guidelines, EEOC and other federal agencies responsible
for enforcing equal opportunity employment laws have
similarly recognized that, as measures of “interpersonal
relations” or “ability to function under danger (e.g., fire
fighters),” “[p]encil-and-paper tests . . . generally are not
close enough approximations of work behaviors to show
content validity.” 44 Fed. Reg. 12007 (1979). See also 29
CFR §1607.15(C)(4).13
Given these unfavorable appraisals, it is unsurprising
that most municipal employers do not evaluate their fire
——————
12 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.”).
13 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 I-O Psychologists Brief).
Cite as: 557 U. S. ____ (2009) 29
GINSBURG, J., dissenting
officer candidates as New Haven does. Although compre
hensive statistics are scarce, a 1996 study found that
nearly two-thirds of surveyed municipalities used assess
ment centers (“simulations of the real world of work”) as
part of their promotion processes. P. Lowry, A Survey of
the Assessment Center Process in the Public Sector, 25
Public Personnel Management 307, 315 (1996). That
figure represented a marked increase over the previous
decade, see ibid., so the percentage today may well be even
higher. Among municipalities still relying in part on
written exams, the median weight assigned to them was
30 percent—half the weight given to New Haven’s written
exam. Id., at 309.
Testimony before the CSB indicated that these alterna
tive methods were both more reliable and notably less
discriminatory in operation. According to Donald Day of
the International Association of Black Professional Fire
fighters, nearby Bridgeport saw less skewed results after
switching to a selection process that placed primary
weight on an oral exam. CA2 App. A830–A832; see supra,
at 7–8. And Hornick described assessment centers as
“demonstrat[ing] dramatically less adverse impacts” than
written exams. CA2 App. A1040.14 Considering the
prevalence of these proven alternatives, New Haven was
poorly positioned to argue that promotions based on its
outmoded and exclusionary selection process qualified as a
business necessity. Cf. Robinson v. Lorillard Corp., 444
——————
14 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 partici
pants.”); W. Cascio & H. Aguinis, Applied Psychology in Human Re
source 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 Equal­
ity, 549 F. 2d, at 513 (recommending assessment centers as an alterna
tive to written exams).
30 RICCI v. DESTEFANO
GINSBURG, J., dissenting
F. 2d 791, 798, n. 7 (CA4 1971) (“It should go without
saying that a practice is hardly ‘necessary’ if an alterna
tive practice better effectuates its intended purpose or is
equally effective but less discriminatory.”).15
Ignoring the conceptual and other defects in New Ha
ven’s selection process, the Court describes the exams as
“painstaking[ly]” developed to test “relevant” material and
on that basis finds no substantial risk of disparate-impact
liability. See ante, at 28. Perhaps such reasoning would
have sufficed under Wards Cove, which permitted exclu
sionary practices as long as they advanced an employer’s
“legitimate” goals. 490 U. S., at 659. But Congress repu
diated Wards Cove and reinstated the “business necessity”
rule attended by a “manifest relationship” requirement.
See Griggs, 401 U. S., at 431–432. See also supra, at 17.
Like the chess player who tries to win by sweeping the
opponent’s pieces off the table, the Court simply shuts
from its sight the formidable obstacles New Haven would
have faced in defending against a disparate-impact suit.
——————
15 Finding the evidence concerning these alternatives insufficiently
developed to “create a genuine issue of fact,” ante, at 32, the Court
effectively confirms that an employer cannot prevail under its strong
basis-in-evidence standard unless the employer decisively proves a
disparate-impact violation against itself. The Court’s specific argu
ments are unavailing. First, the Court suggests, changing the
oral/written weighting may have violated Title VII’s prohibition on
altering test scores. Ante, at 31. 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 31–32. The Court comes up with only
a single statement on this subject—an offhand remark made by peti
tioner Ricci, who hardly qualifies as an expert in testing methods. See
ante, at 14. 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.
Cite as: 557 U. S. ____ (2009) 31
GINSBURG, J., dissenting
See Lanning v. Southeastern Pa. Transp. Auth., 181 F.3d
478, 489 (CA3 1999) (“Judicial application of a standard
focusing solely on whether the qualities measured by an
. . . exam bear some relationship to the job in question
would impermissibly write out the business necessity
prong of the Act’s chosen standard.”).
That IOS representative Chad Legel and his team may
have been diligent in designing the exams says little about
the exams’ suitability for selecting fire officers. IOS
worked within the City’s constraints. Legel never dis
cussed with the City the propriety of the 60/40 weighting
and “was not asked to consider the possibility of an as
sessment center.” CA2 App. A522. See also id., at A467.
The IOS exams, Legel admitted, had not even attempted
to assess “command presence”: “[Y]ou would probably be
better off with an assessment center if you cared to meas
ure that.” Id., at A521. Cf. Boston Chapter, NAACP v.
Beecher, 504 F.2d 1017, 1021–1022 (CA1 1974) (“A test
fashioned from materials pertaining to the job . . . superfi
cially may seem job-related. But what is at issue is
whether it demonstrably selects people who will perform
better the required on-the-job behaviors.”).
In addition to the highly questionable character of the
exams and the neglect of available alternatives, the City
had other reasons to worry about its vulnerability to dis
parate-impact liability. Under the City’s ground rules,
IOS was not allowed to show the exams to anyone in the
New Haven Fire Department prior to their administra
tion. This “precluded [IOS] from being able to engage in
[its] normal subject matter expert review process”—
something Legel described as “very critical.” CA2 App.
A477, A506. As a result, some of the exam questions were
confusing or irrelevant, and the exams may have over
tested some subject-matter areas while missing others.
See, e.g., id., at A1034–A1035, A1051. Testimony before
the CSB also raised questions concerning unequal access
32 RICCI v. DESTEFANO
GINSBURG, J., dissenting
to study materials, see id., at A857–A861, and the poten
tial bias introduced by relying principally on job analyses
from nonminority fire officers to develop the exams, see
id., at A1063–A1064.16 See also supra, at 7, 10.
The Court criticizes New Haven for failing to obtain a
“technical report” from IOS, which, the Court maintains,
would have provided “detailed information to establish the
validity of the exams.” Ante, at 29. The record does not
substantiate this assertion. As Legel testified during his
deposition, the technical report merely summarized “the
steps that [IOS] took methodologically speaking,” and
would not have established the exams’ reliability. CA2
App. A461. See also id., at A462 (the report “doesn’t say
anything that other documents that already existed
wouldn’t say”).
In sum, the record solidly establishes that the City had
good cause to fear disparate-impact liability. Moreover,
the Court supplies no tenable explanation why the evi
dence of the tests’ multiple deficiencies does not create at
least a triable issue under a strong-basis-in-evidence
standard.
——————
16 The I-O Psychologists Brief identifies still other, more technical
flaws in the exams that may well have precluded the City from prevail
ing in a disparate-impact 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. Relat
edly, it appears that the line between a passing and failing score did
not accurately differentiate between qualified and unqualified candi
dates. A number of fire-officer promotional exams have been invali
dated 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.”).
Cite as: 557 U. S. ____ (2009) 33
GINSBURG, J., dissenting
B
Concurring in the Court’s opinion, JUSTICE ALITO as
serts that summary judgment for respondents would be
improper even if the City had good cause for its noncertifi
cation decision. A reasonable jury, he maintains, could
have found that respondents were not actually motivated
by concern about disparate-impact litigation, but instead
sought only “to placate a politically important [African-
American] constituency.” Ante, at 3. As earlier noted, I
would not oppose a remand for further proceedings fair to
both sides. See supra, at 26, n. 10. It is the Court that
has chosen to short-circuit this litigation based on its
pretension that the City has shown, and can show, noth
ing more than a statistical disparity. See supra, at 24,
n. 8, 25. JUSTICE ALITO compounds the Court’s error.
Offering a truncated synopsis of the many hours of
deliberations undertaken by the CSB, JUSTICE ALITO finds
evidence suggesting that respondents’ stated desire to
comply with Title VII was insincere, a mere “pretext” for
discrimination against white firefighters. Ante, at 2–3. In
support of his assertion, JUSTICE ALITO recounts at length
the alleged machinations of Rev. Boise Kimber (a local
political activist), Mayor John DeStefano, and certain
members of the mayor’s staff. See ante, at 3–10.
Most of the allegations JUSTICE ALITO repeats are
drawn from petitioners’ statement of facts they deem
undisputed, a statement displaying an adversarial zeal
not uncommonly found in such presentations.17 What
——————
17 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 cite, however, “suggests” that this proposition is accurate.
Cf. ante, at 5. In her deposition testimony, City official Karen Dubois-
Walton specifically denied that she or her colleagues directed the chief
34 RICCI v. DESTEFANO
GINSBURG, J., dissenting
cannot credibly be denied, however, is that the decision
against certification of the exams was made neither by
Kimber nor by the mayor and his staff. The relevant
decision was made by the CSB, an unelected, politically
insulated body. It is striking that JUSTICE ALITO’s concur
rence says hardly a word about the CSB itself, perhaps
because there is scant evidence that its motivation was
anything other than to comply with Title VII’s disparate
impact provision. Notably, petitioners did not even seek to
take depositions of the two commissioners who voted
against certification. Both submitted uncontested affida
vits declaring unequivocally that their votes were “based
solely on [their] good faith belief that certification” would
have discriminated against minority candidates in viola
tion of federal law. CA2 App. A1605, A1611.
JUSTICE ALITO discounts these sworn statements, sug
gesting that the CSB’s deliberations were tainted by the
preferences of Kimber and City officials, whether or not
the CSB itself was aware of the taint. Kimber and City
officials, JUSTICE ALITO speculates, decided early on to
oppose certification and then “engineered” a skewed pres
entation to the CSB to achieve their preferred outcome.
Ante, at 12.
——————
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 7–8.
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 8 (quoting App.
to Pet. for Cert. in No. 07–1428, p. 458a). This is a misleading abbre
viation 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.
Cite as: 557 U. S. ____ (2009) 35
GINSBURG, J., dissenting
As an initial matter, JUSTICE ALITO exaggerates the
influence of these actors. The CSB, the record reveals,
designed and conducted an inclusive decisionmaking
process, in which it heard from numerous individuals on
both sides of the certification question. See, e.g., CA2 App.
A1090. Kimber and others no doubt used strong words to
urge the CSB not to certify the exam results, but the CSB
received “pressure” from supporters of certification as well
as opponents. Cf. ante, at 6. Petitioners, for example,
engaged counsel to speak on their behalf before the CSB.
Their counsel did not mince words: “[I]f you discard these
results,” she warned, “you will get sued. You will force the
taxpayers of the city of New Haven into protracted litiga
tion.” CA2 App. A816. See also id., at A788.
The local firefighters union—an organization required
by law to represent all the City’s firefighters—was simi
larly outspoken in favor of certification. Discarding the
test results, the union’s president told the CSB, would be
“totally ridiculous.” Id., at A806. He insisted, inaccu
rately, that the City was not at risk of disparate-impact
liability because the exams were administered pursuant to
“a collective bargaining agreement.” Id., at A1137. Cf.
supra, at 26–27, n. 11. Never mentioned by JUSTICE
ALITO in his attempt to show testing expert Christopher
Hornick’s alliance with the City, ante, at 8–9, the CSB
solicited Hornick’s testimony at the union’s suggestion, not
the City’s. CA2 App. A1128. Hornick’s cogent testimony
raised substantial doubts about the exams’ reliability. See
supra, at 8–10.18
——————
18 City officials, JUSTICE ALITO reports, sent Hornick newspaper ac
counts and other material about the exams prior to his testimony.
Ante, at 8. 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 Hornick’s analy
sis focused on the 60/40 weighting of the written and oral exams,
36 RICCI v. DESTEFANO
GINSBURG, J., dissenting
There is scant cause to suspect that maneuvering or
overheated rhetoric, from either side, prevented the CSB
from evenhandedly assessing the reliability of the exams
and rendering an independent, good-faith decision on
certification. JUSTICE ALITO acknowledges that the CSB
had little patience for Kimber’s antics. Ante, at 6–7.19 As
to petitioners, Chairman Segaloff—who voted to certify
the exam results—dismissed the threats made by their
counsel as unhelpful and needlessly “inflammatory.” CA2
App. A821. Regarding the views expressed by City offi
cials, the CSB made clear that they were entitled to no
special weight. Id., at A1080.20
In any event, JUSTICE ALITO’s analysis contains a more
fundamental flaw: It equates political considerations with
unlawful discrimination. As JUSTICE ALITO sees it, if the
mayor and his staff were motivated by their desire “to
placate a . . . racial constituency,” ante, at 3, then they
engaged in unlawful discrimination against petitioners.
But JUSTICE ALITO fails to ask a vital question: “[P]lacate”
how? That political officials would have politics in mind is
hardly extraordinary, and there are many ways in which a
politician can attempt to win over a constituency—
——————
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.
Ante, at 9.
19 To be clear, the Board of Fire Commissioners on which Kimber
served is an entity separate from the CSB. Kimber was not a member
of the CSB. Kimber, JUSTICE ALITO states, requested a private meeting
with the CSB. Ante, at 6. There is not a shred of evidence that a
private meeting with Kimber or anyone else took place.
20 JUSTICE ALITO 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 9. If anything, this evidence reinforces the conclusion that the
CSB—which made the noncertification decision—remained independ
ent and above the political fray. The mayor and his staff needed a
contingency plan precisely because they did not control the CSB.
Cite as: 557 U. S. ____ (2009) 37
GINSBURG, J., dissenting
including a racial constituency—without engaging in
unlawful discrimination. As courts have recognized,
“[p]oliticians routinely respond to bad press . . . , but it is
not a violation of Title VII to take advantage of a situation
to gain political favor.” Henry v. Jones, 507 F.3d 558, 567
(CA7 2007).
The real issue, then, is not whether the mayor and his
staff were politically motivated; it is whether their at
tempt to score political points was legitimate (i.e., nondis
criminatory). Were they seeking to exclude white fire
fighters from promotion (unlikely, as a fair test would
undoubtedly result in the addition of white firefighters to
the officer ranks), or did they realize, at least belatedly,
that their tests could be toppled in a disparate-impact
suit? In the latter case, there is no disparate-treatment
violation. JUSTICE ALITO, I recognize, would disagree. In
his view, an employer’s action to avoid Title VII disparate
impact liability qualifies as a presumptively improper
race-based employment decision. See ante, at 2. I reject
that construction of Title VII. See supra, at 18–20. As I
see it, when employers endeavor to avoid exposure to
disparate-impact liability, they do not thereby encounter
liability for disparate treatment.
Applying this understanding of Title VII, supported by
Griggs and the long line of decisions following Griggs, see
supra, at 16–17, and nn. 3–4, the District Court found no
genuine dispute of material fact. That court noted, par
ticularly, the guidance furnished by Second Circuit prece
dent. See supra, at 12. Petitioners’ allegations that City
officials took account of politics, the District Court deter
mined, simply “d[id] not suffice” to create an inference of
unlawful discrimination. 554 F. Supp. 2d, at 160, n. 12.
The noncertification decision, even if undertaken “in a
political context,” reflected a legitimate “intent not to
implement a promotional process based on testing results
that had an adverse impact.” Id., at 158, 160. Indeed, the
38 RICCI v. DESTEFANO
GINSBURG, J., dissenting
District Court perceived “a total absence of any evidence of
discriminatory animus towards [petitioners].” Id., at 158.
See also id., at 162 (“Nothing in the record in this case
suggests that the City defendants or CSB acted ‘because
of’ discriminatory animus toward [petitioners] or other
non-minority applicants for promotion.”). Perhaps the
District Court could have been more expansive in its
discussion of these issues, but its conclusions appear
entirely consistent with the record before it.21
It is indeed regrettable that the City’s noncertification
decision would have required all candidates to go through
another selection process. But it would have been more
regrettable to rely on flawed exams to shut out candidates
who may well have the command presence and other
qualities needed to excel as fire officers. Yet that is the
choice the Court makes today. It is a choice that breaks
the promise of Griggs that groups long denied equal oppor
tunity would not be held back by tests “fair in form, but
discriminatory in operation.” 401 U. S., at 431.
——————
21 The District Court, JUSTICE ALITO writes, “all but conceded that a
jury could find that the City’s asserted justification was pretextual” by
“admitt[ing] 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 [Rev. Boise] Kimber and other influential leaders of New
Haven’s African-American community.’ ” Ante, at 3, 13 (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 Amend
ment 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. ___,
___ (2009) (slip op., at 18) (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).
Cite as: 557 U. S. ____ (2009) 39
GINSBURG, J., dissenting
* * *
This case presents an unfortunate situation, one New
Haven might well have avoided had it utilized a better
selection process in the first place. But what this case
does not present is race-based discrimination in violation
of Title VII. I dissent from the Court’s judgment, which
rests on the false premise that respondents showed “a
significant statistical disparity,” but “nothing more.” See
ante, at 27–28.