Second Circuit Affirms Difficult Choice with Race-Conscious Effect

Via Jack Sargent comes Ricci v. DeStefano from the Second Circuit, affirming per curiam the district court. All of the details are from the district court opinion, which is reported at Civil No. 3:04cv1109 (JBA), 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006) (subscriptions required).

The New Haven Fire Department an exam as part of its promotional process, and the process was established by a collective bargaining agreement. After examining the results of the test, the city held several hearings on whether to certify the results. The results appeared to show that the test disparately impacted African American and Hispanic applicants. After extensive testimony (both lay and expert) about the fairness of the test, its job relatedness, whether the process (and which part) had a disparate impact, and why, the city in a split decision refused to certify the results.

Plaintiffs are seventeen white candidates and one Hispanic candidate who took the promotional exams, fared very well, but received no promotion because without the CSB's certification of the test results, the promotional process could not proceed. They argued that the process did not produce a disparate impact, that it accurately reflected merit, and that the refusal to certify the results was because of political pressure to promote racial diversity--in other words, that this was discrimination against the white candidates. The city argued that the decision was either required by Title VII or was at least driven by a good faith belief that Title VII mandated its action. Plaintiffs countered that a good faith belief was not a defense, and that its assertion was just a pretext for discrimination.

The court held that the process did have a disparate impact and upheld the decision not to certify the results

Here, defendants' remedy is “race conscious” at most because their actions reflected their intent not to implement a promotional process based on testing results that had an adverse impact on African-Americans and Hispanics. The remedy chosen here was decidedly less “race conscious” than the remedies in Kirkland and Bushey, because New Haven did not race-norm the scores, they simply decided to start over, to develop some new assessment mechanism with less disparate impact. Thus, while the evidence shows that race was taken into account in the decision not to certify the test results, the result was race-neutral: all the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion. Indeed, there is a total absence of any evidence of discriminatory animus towards plaintiffs-under the reasoning of [Hayden v. County of Nassau, 180 F.3d 42, 51 (2d Cir. 1999)], “nothing in our jurisprudence precludes the use of race-neutral means to improve racial and gender representation.... [T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.”

Because the defendants lacked animus against white applicants, the court further found that there was no equal protection violation.

This was a very interesting analysis of what underlies a lot of the tension in antidiscrimination law. People usually perceive that decisions that harm one racial group benefit another, and decisions that appear to benefit a racial group appear to harm another. Ultimately, decisions to not harm one group will be perceived to cause harm to another group. Deciding whether that harm really exists or is something the law needs to prevent is explicit in the affirmative action debate, but it's also always present but unspoken in the typical discrimination case.

MM