Whatever Happened to Ricci?

Last year, in a much-discussed case, the Supreme Court ruled that white firefighters in New Haven, Connecticut were the victims of discrimination when they were denied promotions because of their race. Ricci v. DeStefano, No. 07-1428 (June 29, 2009). Ever wonder what happened to the plaintiffs' case after it went back to the lower court for final resolution? Here you go . . . The Latest According to this AP report, Ricci and the other plaintiffs are now getting their money. Twenty firefighters will get a total of approximately $5 million, including about $3 million to pay their attorneys' fees and $2 million in damages, including back pay, pension benefits and interest. Forgotten what the Supremes' ruling in Ricci was all about? Here you go . . . The Background The Court found that New Haven unlawfully threw out a promotion test when the city found that only two Hispanics and no African-Americans who passed were eligible for promotion. The city admitted that it did so out of fear of a "disparate impact" lawsuit from minority employees. The firefighters sued, claiming that the decision was discriminatory. The Court agreed. The Court emphasized the clear aim of Title VII, stating: "No individual should face workplace discrimination based on race." It also stated: "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 Court ruled that an employer needs a "strong basis in evidence" to believe it will face liability in a disparate impact suit. The Court found that the city lacked such evidence because: the test was "job-related and consistent with business necessity"; the city "turned a blind eye to evidence that supported the test's validity"; the city failed to request validation of the test, even though it was available under the contract with the test's provider; and the city failed to consider possible modifications to the test or other alternatives, such as assigning different weights to oral and written portions. What Does This Mean for Employers? The Court didn't exactly give employers a bright-line standard. The old test was a "good-faith basis" for throwing out a test. The new one is a "strong basis of evidence." The Court's ruling makes it tougher for employers to change a selection process once it's in place. As such, employers have even more incentive to make the process – and any tests in particular – as valid, job-related and fair as possible up front. As a result, some employers have scrapped tests altogether. Others are turning to outside experts to validate and/or conduct assessments to reduce potential liability. The Bottom Line As we discussed in our webinar, there's really no such thing as "reverse" discrimination. Discrimination is discrimination is discrimination. Title VII makes it clear that any decision based on any protected class characteristic (e.g., race) is subject to challenge in court. For more on this topic, check out our latest webinar here.

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