Ricci v. DeStefano, 557 U.S. 557 (2009) and answer the following questions:

SYLLABUS

OCTOBER TERM, 2008

RICCI V. DESTEFANO

SUPREME COURT OF THE UNITED STATES

RICCI etal.v. DeSTEFANO etal.

certiorari to the united states court of appeals for the second circuit

No. 07-1428.Argued April 22, 2009Decided 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 resultsand threats of a lawsuit either waythe 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 refusal 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 discrimination 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 disproportionately adverse effect on minorities, 2000e-2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is "job related for the position in question and consistent 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 disparate 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 liability 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 becausethe higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose 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. SeeWatsonv.Fort Worth Bank & Trust,487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discriminationactions that are themselves based on raceare constitutional only where there is a "strong basis in evidence" that the remedial actions were necessary.Richmondv.J. A. Croson Co.,488 U. S. 469, 500; see alsoWygantv.Jackson Bd. of Ed.,476 U. S. 267, 277. In announcing the strong-basis-in-evidence standard, theWygantplurality recognized 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. It reasoned that "[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial 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. Applying 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 consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see 2000e-2(l), and the section that expressly protects bona fide promotional exams, 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 disparate-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 faciecase of disparate-impact liability. The problem for respondents is that such a prima facie caseessentially, a threshold showing of a significant statistical disparity,Connecticutv.Teal,457 U. S. 440, 446, and nothing moreis 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 substantial 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 related and consistent with business necessity are blatantly contradicted 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 lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams' validity. 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, respondents 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, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory 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 assessment 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) statements 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 impermissible under Title VII, and summary judgment is appropriate for petitioners 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 opinion, in which Stevens, Souter, and Breyer, JJ., joined.

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

a. What do you think of the court's decision?

b. Why do you think the Fire Department did what it did to "fix" the situation, even though it had already had the tests validated? Explain.

c. Do you understand why the candidates that received passing scores but were not promoted challenged the Fire Department's decision? Explain.