Race, Racism, & The Law Memorandum

Impact of Ricci regarding reverse discrimination in the workplace
INTRODUCTION
The Ricci case had earned much notoriety as a result of Justice Sotomayor’s senate confirmation hearings during the summer of 2009. Members of our legislature opposing her nomination, for whatever reasons they, continually focused on her role in this decision prior to its appeal to our nation’s highest court. I remember intently watching the confirmation hearings, hearing Justice Sotomayor being grilled from members of the senate committee solely on the topic.
It was not until I began researching this case for the purposes of this memorandum that I learned that Justice Sotomayor did not write an opinion to this case at all, but merely signed an order affirming summary judgment. Ricci v. DeStefano, 264 Fed.Appx. 106 (2d Cir. 2008). There was a very brief opinion attached to the order. The short text that was given explained that the firefighters did not have a viable Title VII claim; and the Board acted lawfully in refusing to validate the exams to satisfy Title VII requirements when faced with results with a showing of disproportionate racial impact. Id.
Subsequent to the order, an active judge of the Court requested a poll on whether to rehear the case in banc. Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008). The Second Circuit of Appeals in a 7-6 vote, withdrew their order affirming, and instead issued a per curiam order. Id. Then Judge Sotomayor concurred with Judge Katzmann and Judge Parker in their opinions to decline an en banc rehearing of Ricci.
But because of the continuous opposition against Justice Sotomayor during the confirmation hearings on this decision, in addition to the press’ nonstop reporting on this attack, my interest in the developments of Ricci was certainly incited.
Racism in American society stemming from the time of slavery still exists to a varying degree. Though slavery is of course no longer an issue; prejudice, intolerance, and bigotry continues to inject itself into culture whether those who are realize it or not. To combat this, Congress enacted The Civil Rights Act of 1964 that outlawed discrimination and ended racial segregation in America.
Contributed by: Andrew Thomas Smith


In Ricci v. DeStefano, the principle case in this memorandum, the Supreme Court particularly examines an aspect of Title VII of the Act; which prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. But interestingly enough, legislation that was passed to prevent discrimination of minorities in the workplace, has become the means to prevent discrimination of non-minorities.
Discrimination has grown to become a complex entity in itself. Reverse discrimination and affirmative action programs have become the source of much controversy in cases involving inequality in the workplace; and we see the source of ire in the principle case stems from it.
Reverse discrimination is: 1) a concept of prejudice directed; 2) against members of certain social or racial groups, as white persons; 3) thought of as being dominant or having benefited from past discrimination against minority groups who are now favored.
These are often as a result of (and most commonly associated with) affirmative action programs; the policies that take factors including “race, color, religion, sex or national origin” into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination..
LEGISLATIVE HISTORY OF THE CIVIL RIGHTS ACT OF 1964 TITLE VII
Title VII of the Civil Rights Act of 1964 has been used to both defend and oppose reverse discrimination decisions by employers. The Civil Rights Act of 1964 was the subject of the longest Congressional filibuster in history, and until this day it continues to hold that record. Crain, Kim, Selmi, Work Law: Cases and Materials 536 (2006 Lexis/Nexis). Prior to the enactment of Title VII of the Civil Rights Act, it was legal for employers to discriminate on the basis of race, sex, national origin, and religion. Id. But the bottom line principle of Title VII is found in section 703(a)(1): “It shall be an unlawful practice for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual… because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Further, it is an “unlawful practice for an employer to limit, segregate, or classify … employees or applicants for employment in any way which would deprive … any individual of employment opportunities … because of such individual’s race, color, religion, sex, or natural origin.” Id. at § 2000e-2(a)(2).
Because Title VII is pertinent to the relationship of an employer and an employee (whether current or prospective), the starting point in applying this statute is to understand exactly what an employer and an employee is under the statute. Congress describes an employer as any person who has “fifteen or more employees.” Id. at § 2000e(b). The definition of an employee is contingent upon the definition of the employer, which is “any person employed by an employer” as defined in the statute. Id. at § 2000e(f).
Title VII has been amended five times since its introduction on July 2nd, 1964; those of which occurring in 1966, 1972, 1978, 1986, and 1991.
In the 1966 amendment to the statute, a provision stating “it shall be the policy of the United States to insure equal employment opportunities for Federal employees without discrimination because of race, color, religion, sex, or national origin and directed the President to utilize his existing authority to effectuate this policy” was eliminated. Pub.L. 89-554. Originally, the statute only applied to employers with twenty-five persons under their employ; but in 1975 the statute was extended to what it is today, also including those employed in state and local governments. Pub.L. 912-261 § 2(2). Language enumerating persons excepted under the term “employee” was also added. Pub.L. 92-261, § 2(5). Amendments made to the statute in 1972, 1978, and 1986 were relatively inconsequential and only changed wording of the legislation slightly. In 1991, Congress passed the Glass Ceiling Act. Pub.L. 102-166. This statute made it known that women and minorities were being discriminated against by use of artificial barriers. Id. This was based on the Department of Labor’s initiative to raise public awareness on the issue. Id. The Glass Ceiling act was aimed to eliminate these artificial barriers. Id. Additionally, the Glass Ceiling Act would create a commission to ensure that there was promotion of “workforce diversity.” Id. This commission would study the preparedness and opportunities to advance in the workplace for women and minorities.
Further, several executive orders have been made to advance minorities in the employment world. An executive order made by President Richard Nixon in 1969 established affirmative action programs in all federal agencies; with the goal that equal opportunity for all citizens is realized by prohibiting discrimination in the workplace. Executive Order No. 11478. In 1978, President Jimmy Carter designated the Equal Employment Opportunity Commission (E.E.O.C.) as the primary enforcement agency of Title VII. Executive Order No. 12067. President Clinton signed an executive order in 2000 seeking to improve representation of Hispanics in federal employment. Executive Order No. 13171.
TEST TAKING IN THE HIRING PROCESS: WHAT IS DISPARATE IMPACT?
Title VII has a provision which allows for the use of ability tests and a seniority merit system. 42 U.S.C. § 2000e-2(h). An employer is permitted to “give and act upon the results of any professionally developed ability test” so long as the test “is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin.” Id. The statute also stipulates the burdens of proof in cases that use the statute in seeking recovery. Id. at § 2000e-2(k). Specifically, the legislation refers to disparate impact cases. Id. Under Title VII of the Civil Rights Act of 1964, an employer can be liable for unlawful discrimination under any one of three theories: pattern and practice discrimination, disparate treatment discrimination, or disparate impact discrimination. EEOC v. Joe’s Stone Crab, Inc. 220 F.3d 1263, 1273 (11th Cir. 2000).
Claims of pattern and practice discrimination or disparate treatment discrimination require a showing of discriminatory intent. See In re Employment Litig. Against the State of Ala., 198 F.3d 1305, 1310 n. 8 (11th Cir. 1999). In order to show discriminatory intent, a plaintiff must demonstrate that the employer selected or reaffirmed an action, at least in part, because of its adverse effects on an identifiable group. Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Therefore under disparate treatment discrimination theory, the plaintiff bears the burden of proving that the employment action was taken because of the identifiable group. Holifield v. Reno, 115 F.3d 1555, 1564-65 (11th Cir. 1997).
Disparate impact is the adverse effect of a facially neutral employment practice that nonetheless discriminates against persons because of their race, sex, national origin, age, or disability and that is not justified by business necessity. Black’s Law Dictionary 504 (2004). A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect. Black’s Law Dictionary 504. Disparate impact discrimination claims, unlike the other two theories, do not require a showing of intent. In re Employment Litig. Discriminatory intent is irrelevant in a disparate impact claim. Black’s Law Dictionary 504. This discrimination theory prohibits neutral employment practices which, though facially non-discriminatory, affect an adverse, disproportionate impact on a statutorily protected group. Griggs v. Duke Power Co., 91 S.Ct. 849, 853 (1971). Disparate impact theory is a “doctrinal surrogate for eliminating unprovable acts of intentional discrimination hidden innocuously behind facially-neutral policies or practices.” Joes’s Stone Crab, Inc. at 1273. In other words, some employment practices implemented without purposeful intent of discrimination may be equivalent to that of intentional discrimination.
Disparate impact theory is not codified in Title VII but exists as a creature of judicial interpretation; particularly as articulated in Griggs and McDonnell Douglas. Title VII lays out the purpose of Congress: to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered racially divided job environments to the disadvantage of minorities. Griggs at 853; see also McDonnell Douglas Corp. v. Green 93 S.Ct. 1817, 1823 (1973). The prohibition includes both overt discrimination and practices that are fair in form but discriminatory in operation. Griggs at 853. The Supreme Court goes on to explain in Griggs:
“Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Id.
Further, Congress sought to achieve equality of employment opportunities and remove barriers that favored an identifiable group of white employees over other employees. Id. Under the act, practices, procedures, or tests that are facially race neutral (and even including those without the intent to discriminate), “cannot be maintained if they operate to freeze the status quo” of prior discriminatory employment practices. Id.
BURDEN OF PROOF IN DISPARATE IMPACT CASES
The United States Supreme Court decision McDonnell Douglas Corporation v. Green established the framework required in determining the shifting burdens of proof in Title VII analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this structure, the plaintiff must show that she: (1) is a member of a protected class, (2) had applied and was qualified for a job for which the employer was seeking applicants, (3) despite being qualified for the position she was rejected or terminated, and (4) after being rejected either the position remained open and filled by a person from outside the protected class, or the employer continued to seek applicants from persons of the complaintants qualifications. Id.
If the plaintiff establishes a viable case, then there is a rebuttable presumption of discrimination and the burden shifts to the employer to present admissible evidence in support of a “legitimate non-discriminatory reason” for its decision. The plaintiff can then show by a preponderance of the evidence that the reason is in fact a pretext masking unlawful discrimination.
In a disparate impact case, the plaintiff carries the burden of proof that a defendant employer “uses a particular employment practice that causes a disparate impact on the basis of, race, color, religion, sex, or national origin” and that the defendant “fails to demonstrate that the challenged practice is job related and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). Essentially, the employee must show that the employer does not have a work related business necessity supporting the discriminatory practice or policy.
In order for the employee to show the defendant employer uses a disparate impact policy, the plaintiff must show that the policy causes harm, or that the policy cannot be separated. Id. at § 2000e-2(k)(1)(B)(i). Additionally, it is not enough that there is a showing of discrimination; but the employee must also show that there may have been an “alternative employment practice” which the defendant fails to utilize instead. Id. at § 2000e-2(k)(1)(A)(ii). Further, the plaintiff can build a foundation for his case with a showing that “race, color, religion, sex, or national origin was a motivating factor for any employment practice.” Id. at § 2000e-2(m).
In applying this to ability testing in the workplace, an employer will be held liable for violating Title VII if he uses a test that disadvantages one employee over another; particularly on the basis of race. Courts will assess the reasons the ability test is implemented, in addition to the plaintiff employee’s showing: 1) that the examination proffered discriminated against the employee and others in his group; 2) the employer is able to rebut the employee’s assertions by: 2a) showing there is no disparate impact, or the employer is not responsible for the disparate impact; or 2b) the employer can demonstrate that the challenged practice is job-related for the position in question and consistent with business necessity; and 3) an alternative measure is available for the employers use that has failed to be adopted.
These steps in analyzing a disparate impact claim were vital to both parties’ arguments and the Supreme Court’s decision. Essentially, the firefighter’s interest in having a valid, job related test honored versus the interest of the City of New Haven in avoiding discrimination lawsuits. The firefighters contended that the City of New Haven could rebut any prima facie case the African American firefighters may have had against the use of the tests; therefore the City could not argue it was avoiding de facto discrimination. The City of New Haven argued that it was not compelled to follow a test that could potentially open itself up to liability in disparate impact litigation; regardless on its abilities to defeat such a suit.
PRIMARY CASE IN QUESTION: Ricci v. DeStefano, 129 S.Ct. 2658 (2009)
FACTS
The petitioners were white firefighters from the City of New Haven, Connecticut. Ricci v. DeStefano, 129 S.Ct. 2658, 2667 (2009). Respondents were the mayor and various administrators of New Haven, representing the city. Id. The City of New Haven uses an objective firefighter’s examination to identify who is best qualified for promotion. Id. at 2664. Officer positions are highly sought, commanding respect within both the department and community, not to mention increased salary and benefits. Id. at 2664. In 2003, New Haven desired to fill vacancies in the lieutenant and captain positions in its fire department, and undertook arrangements to administer a knowledge, skill, and ability test. Id. 118 firefighters took the examination to qualify for the promotion. Id. Ninety applicants took the written portion of the lieutenant’s exam, with seventy-seven advancing to the oral portion. Id. at 2666. Forty-one applicants took the captain’s exam. Id.
Applicant firefighters were screened using written and oral exams; each accounting for sixty percent and forty percent, respectively. Id. at 2665. The City’s charter called for test-takers who score over seventy percent to be ranked by score, and got the Civil Service Board to certify this list of candidates. Id. Then, under a “rule of three,” job vacancies are filled by selecting one of the top three candidates on the list. Id. The rule of three was implemented to curtail favoritism, racism, and patronage. Id. Promotions were few and far between, making the process very selective and highly competitive. Id. at 2664. Firefighters spent many weeks and money in preparation for the exam. Id. All applicants were given an equal amount of time, three months, to study and prepare for the test. Id. at 2666. The main plaintiff in this case, Ricci, spent in excess of a thousand dollars preparing for this exam; and studied anywhere between eight and thirteen hours a day. Id.
Because of previous with racial disparities in the results of such tests within the fire
department, the City of New Haven hired an independent third-party company to create and administer the examinations. Id. at 2665. Industrial/Organizational Solutions, Inc. (IOC), a professional testing firm familiar with such tests having administered them to police and other fire departments, developed a race neutral merit test that reflected the test taker’s knowledge, skill, and ability. Id.
IOC went to great lengths to ensure the test was as objective as possible, so that it would be equally fair to each applicant regardless of race or background. Id. IOC followed the Equal Employment Opportunity Commission’s (EEOC) recommended practices, including but not limited to: consultants participating in ride-alongs to ensure the test reflected the fire fighter’s skill and abilities; follow up interviews with the fire fighters; and wrote tests below a tenth-grade reading level. Id. To further prevent favoritism, evaluators for the oral portion of the exam were fire chiefs from outside of Connective but similar to those from the City of New Haven’s fire departments. Id. Also, three assessors in each evaluation room were from a different race; one Caucasian, one African-American, and one Hispanic evaluator. Id. This represented the three most common races in the City of New Haven. Id. Evaluators were trained on how to objectively asses each examination, and applicants were given most commonly tested chapters in the required text in order to ensure no test-taker would be surprised by any of the questions. Id.
Results were sorted by race in order to expose racial disparities in pass rates and scoring. Id. at 2666. Of those who passed the lieutenant’s exam, twenty five were Caucasian, six were African-American, and three were Hispanic. Id. Those passing the captain’s exam included sixteen Caucasians, three African-Americans, and three Hispanics. Id. Although candidates of all races passed the exam, the top scores eligible for immediate promotion were mostly Caucasian, with a few Hispanics. Id. No African-American candidates qualified for immediate promotion. Id.
The City of New Haven concluded that based on the racial disparity in the test results, if the test was used to fill vacancies in the fire department, litigation alleging disparate impact would ensue. Id. No one who took the exam was promoted, and the positions were left vacant. Id. This disparate treatment lawsuit by candidates who passed the abilities test soon followed.
THE FIREFIGHTERS
The petitioners in this suit all passed the test but were denied promotion as consequence to the City of New Haven’s refusal to honor the exam. All petitioners were Caucasian with the exception of one who was Hispanic. The firefighters argued that in refusing to validate the test, the City of New Haven violated Title VII by discriminating based on race, and violated the Equal Protection Clause of the Fourteenth Amendment. Essentially, the crux of their argument was that the City of New Haven’s actions were racially prompted, and they were not justified in doing so.
Simply put, the firefighters argued that the City of New Haven intentionally discriminated against them on the basis of race by failing to certify the list of test results because white applicants scored higher on the test. They assert that in denying honoring the test results for the chance to be promoted, they were treated less favorably than African-American applicants that did not pass the exam (and as a consequence, would not be promoted). This was de jure discrimination, and the City of New Haven could not intentional discriminated against one class in order to avoid unintentional discrimination against another.
Further, the firefighters argued that even if there would have been a claim of disparate impact arising from the use of the tests, it would fail because of the procedures used to ensure objectiveness in the test. The firefighters went on to argue that the only way to disregard the test was if the test not only created a statistical disparity, but also if there was an equally available option to use that with less disparate treatment. There was none in this case, and thus the test could not be disregarded.
THE CITY OF NEW HAVEN
The City of New Haven argued that in situations where an employer fears potential disparate impact litigation, the employer is entitled to disregard the results from the test. And even if the City of New Haven needed a strong basis to believe its action would violate the statute before opting to ignore the test results (which they contended was not required); the City contended it had a strong basis because of the severe racial disparity of the results, in addition to whether the test actually identified the best candidates for promotion.
The City of New Haven also perceived the firefighter’s view of the Title VII as being one that required the employer to use test results whether or not it results in disparate impact liability. The City contended that this was an incorrect reading of the statutory language, and it forced the employer to risk liability.
Moreover, the City of New Haven viewed their actions justifiable based on the potential they perceived as a violation of Title VII.
HOLDING & RATIONALE
In a 5-4 decision, the Supreme Court ruled in favor of the petitioner firefighters on their Title VII disparate-treatment assertions, and that the case should be reversed and remanded consistent with their opinion. The majority led by Justice Kennedy (joined by Chief Justice Roberts and Justices Alito, Scalia, Thomas) held that the City of New Haven violated the disparate impact provisions of Title VII because their failure to honor the test results were made on the basis of race. In order to abandon the examination results, the employer must have a “strong basis in evidence,” beyond the results, that the using the test would result in disparate impact liability. Thus, the only way the test can be discarded is if the test itself was flawed, not job-related, or inconsistent with business-necessity, or if there were other less discriminatory testing method available.
The Supreme Court begins with an assumption that the City’s actions violate the disparate treatment theory “absent some valid defense.” Id. at 2673. The Court holds here that the City did not certify the test because not enough minorities would be promoted. Id. Employers are not allowed to do such action. Id. Additionally, the Court holds that Title VII prohibits both intentional and unintentional disparate impact discrimination. Id. at 2674.
The Court did not concern themselves with the City of New Haven’s ultimate aim – whether it was “well intentioned or benevolent” or based on political concerns. Instead, the Court observed the basis of the City’s actions, and found that the City made its employment decision because of race. The City disapproved the examination results because the higher scoring examinees were white.
The City cannot rely on a good-faith belief that they would be sued. Id. at 2675. “Allowing employers to violate the disparate-treatment prohibitions based on a mere good-faith fear of disparate impact liability would encourage race-based action at the slightest hint of disparate impact.” Id. The Court feared that a good faith standard would result in a “de facto quota system” where employers would focus on statistics, and discard test results in an effort to reach results consistent with their desires. Under this system, it would be difficult to prove the employer did not act in good faith where there was a statistical disparity.
The city or any employer would have to have more than a good-faith belief that they would be sued. Id. Relying on Wgynant and Croson, the majority applies a “strong-basis-in-evidence standard.” Id. The employer has to prove that the decision to avoid litigation was based on enough evidence that indicates they could have been sued by the other party. Id. Here, the city had to show through the strong-basis-in-evidence standard, that the ability test was deficient in evaluating firefighters’ promotions. Id. By setting up the criterion for promotion, giving time for adequate study, and giving access to all members to testing information, the City cannot then discard the results based on race and say that their test was deficient. Id. at 2677. A showing of racial statistics of the test did not overcome the burden of showing that there was a strong basis in evidence that the City would have been liable for certifying the results. Id. at 2678.
CONCURRENCE
Justice Scalia’s concurrence predicted towards a coming conflict between disparate impact and equal protection. Essentially, he argued that there would be an eventual ruling that Title VII’s disparate impact provisions would be unconstitutional because of the Equal Protection Clause. Id. at 2682. Because the Equal Protection Clause of the Fourteenth Amendment prohibits the government from discriminating based on race, Scalia stated that “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.” Id.
Justice Alito’s concurrence (to which was joined by Justices Scalia and Thomas) offers more facts to the background of the case, contending that the majority left out some important facts in deciding this case. Id. at 2683. Justice Alito focused on the racial and political circumstances existing in New Haven, as well as implying that the Mayor’s pressure on the Board to not certify the results was due to the Mayor DeStefano’s close relationship with a politically influential African-American minister. Id. at 2684. The minister apparently met privately with the mayor’s Chief Admin Officer to have some influence over the non certification of the results of the test. Id. at 2685.
Alito’s concurrence addressed the arguments posed by the dissent, and argued that even if the dissent did not agree with the standard presented, that it could agree that a reversal for a trial on the firefighters” merits would be warranted.
DISSENT
Justice Ginsberg (joined by Justices Stevens, Souter, and Breyer) began her dissent by noting the disparity in promotions and racial compositions of years past to point out that there was a history of discrimination in the City that the City had to address when making its decision to not certify the ability test. Id. at 2690.
Further, the four dissenting Justices supported a “good cause” standard, as opposed to the “strong basis in evidence” standard. Justice Ginsburg, writing for the dissent, stated: “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.” Further the dissent criticized the Court for granting summary judgment in favor of the white firefighters instead of following the Court’s usual procedure when it adopts a new legal rule to “remand and allow the lower courts to apply the rule” in the first instance.
The dissent relies on two questions in determining whether ability examinations measured the skill necessary despite the negative impact on minorities, and whether alternative exams that mitigate the impact on minorities. Id. at 269. On the first question, the dissent scrutinizes the flaws of the test. Id. On the second, the dissent furthers the notion that other tests can fulfill the same objective without being racial in nature. Id. The dissent would have affirmed the Second Circuit’s decision. The dissent suggested that there were grave concerns with the testing procedure, and these problems warranted a new test. The dissent pointed to the problems with the content of the test, the problems with the review of the test, and the existence of alternative. To support the contention that alternative tests would have been better suited for this situation, Justice Ginsburg stated that relying on written tests was “questionable to say the least” given the nature of the firefighters’ work
FUTURE AFTER RICCI
Following the Supreme Court’s decision in Ricci, when the City of New Haven utilized the test scores, African-American firefighters sued.
Michael Briscoe, a New Haven firefighter, sued on the basis that the City’s examination violated the disparate-impact provisions of Title VII of the 1964 Civil Rights Act. Briscoe v. City of New Haven, 2010 U.S. Dist. LEXIS 41861 (2010). Briscoe alleged that the City violated Title VII when it weighed the written portion of the firefighters exam as sixty percent of the total score and the oral portion as forty percent. Apparently, Briscoe scored the highest of all seventy-seven applicants on the oral exam; however, due to his score on the written portion, he was ranked twenty-fourth overall. Id. He asserted that the City could not put forth a justifiable business necessity for weighing the exam as it did when, according to his complaint, the prevailing practice among public safety agencies is to weigh the oral component as seventy-percent, and the written as thirty percent, of the total score. Id. Under this standard, Briscoe asserted, three of the top twelve scorers would have been African-American, including himself. Id. The court entered an order dismissing the case.
Additionally, the Ricci decision may have impacted other municipalities to which they enlist the use of testing procedures. Shortly after the Ricci decision was reported, the Chicago Police Department indicated that it was considering eliminating the police entrance exam in an effort to “bolster minority hiring, save millions on test preparation and avert costly legal battles that have dogged the exam process for decades.” F. Spielman and F. Main, Chicago Police May Scrap Entrance Exam, Chicago Sun-Times, January 6, 2010. The CPD would open the hiring process to anyone who meets the education and residency requirements and passes the background and psychiatric tests. Id.
Because of the Ricci decision, employers who have testing procedures that are clearly job-related and consistent with a business necessity can be more confident in their testing, even if there is a statistical racial disparity in results. The Supreme Court’s decision assures employers that a statistical disparity is not enough to result in violating Title VII’s disparate impact provisions, as it is an insufficient reason to discard results. While Ricci has surely caused some employers to re-examine their testing criteria in order to ensure that there is a connection between the skills the test measures and actual performance, it probably will not cause employers to abandon testing as a means for evaluating employees.
Justice O’Connor in the majority opinion of Grutter, noted that she expects sometime in the future, perhaps twenty-five years, racial affirmative action would no longer be necessary in order to promote diversity. Grutter v. Bollinger, 123 S.Ct. 2325, 2330 (2003). Twenty-five years was, of course, a mere estimation rather than a determination of when affirmative action procedures would cease to exist. And certainly, one of (if not the) main purpose of affirmative action programs is the advancement of minorities in the workplace and the achieving of societal equality. The difference in time between the decision made in Grutter (2003) and that of Ricci (2009) is six years, far removed from Justice O’Connor’s twenty-five year projection. But the direction that Ricci moves the legal community in some respect significantly shortens the twenty-five year time horizon mentioned in Grutter; or is at least indicative that in a span of six years the legal system is already moving towards this prediction. This prediction by Justice O’Connor in Grutter may be consistent with the prediction made by Justice Scalia in his concurring opinion in the instant case to which the disparate-impact provisions in Title VII may be phased out because of the Equal Protection clause.