Oral argument: Apr. 22, 2009
Appealed from: United States Court of Appeals, Second Circuit (June 13, 2008)
REVERSE DISCRIMINATION, EQUAL PROTECTION CLAUSE, TITLE VII, DISPARATE IMPACT, CIVIL RIGHTS ACT OF 1964
Ricci v. DeStefano raises questions as to what steps employers may take where avoidance of discrimination against one group may mean discrimination against another group. The City of New Haven, Connecticut administered a civil service examination for fire department promotions. The exam produced racially disproportionate results, favoring white candidates over black candidates. As a result, New Haven ultimately did not certify the examination. Ricci and other candidates who scored higher on the examination and thus were eligible for promotion sued New Haven, claiming racial discrimination against the higher scoring candidates. The district court granted summary judgment for New Haven, and the Second Circuit affirmed. Ricci and the other petitioners claim New Haven discriminated against them on the basis of race in violation of the Equal Protection Clause and Title VII. New Haven, on the other hand, claims it was complying with Title VII in declining to certify the exam and thus did not violate either the Equal Protection Clause or Title VII.
Ricci v. DeStefano (No. 07-1428)
1. When an otherwise valid civil service selection process yields unintended racially disproportionate results, may municipalities reject the results and the successful candidates for reasons of race absent the demonstration required by 42 U.S.C. § 2000e- 2(k)?
2. Does 42 U.S.C. §2000e-2(l) which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race ... ," permit employers to refuse to act on the results of such tests for reasons of race?
3. If, citing the public interest in eradicating political patronage, racism and corruption in civil service, a state's highest court mandates strict compliance with local laws requiring race-blind competitive merit selection procedures, does 42 U.S.C. §2000e-7 permit federal courts to relieve municipalities from compliance with such laws?
Ricci v. DeStefano (No. 08-328)
1. When a content-valid civil service examination and race-neutral selection process yield unintentionally racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?
2. Does an employer violate 42 U.S.C. § 2000E-2(1), which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race," when it rejects the results of such tests because of the race of the successful candidates?
Whether city officials trying to diversify a civil service department are guilty of racial discrimination under the Equal Protection Clause or Title VII when they decide not to utilize written test results which favor one racial class over another, and whether an employer violates 42 U.S.C. § 2000E-2(1), which makes it illegal to adjust test scores or cut-off scores based on race, when he decides not to utilize test results because the successful candidates are all of one race.
In 2003, the City of New Haven, Connecticut ("New Haven") administered written examinations in an effort to fill vacant lieutenant and captain positions in its Fire Department. SeeBrief for Respondent, John DeStefano et al. at 2. The written exams were to account for sixty-percent of the ultimate assessment of a candidate's ability to successfully serve as a lieutenant or captain. SeeBrief for Petitioner, Frank Ricci et al. at 7. Forty-percent of an individual's assessment consisted of an oral exam evaluating a candidate's ability to lead others in emergency situations. See id.When New Haven officials analyzed the written test results, they found that the pass rate for black candidates was approximately half the pass rate of white candidates. SeeBrief for Respondentat 5.
New Haven's City Charter requires that the Board of Fire Commissioners use civil service examinations based on a "Rule of Three," where only the top three highest scoring candidates on each of the lieutenant and captain exams may be awarded a promotion. SeeBrief for Petitioner at 4. Under the Rule of Three, no black candidates could be awarded a promotion, since none of the top three highest scores on either test belonged to an African-American. Seeid. at 10. The highest scoring black candidate for the lieutenant position was thirteenth; the highest scoring black candidate for the captain position was fifteenth. See Brief for Respondent at 6.
City officials referred the issue of the test results to New Haven's Civil Service Board ("the Board"), which is composed of five members who are responsible for overseeing New Haven's civil service examinations and assessing test results before certifying eligible candidates for promotion. See Brief for Respondent at 6. The Board held public hearings to determine whether they would certify a list of eligible candidates. See id.at 6. The Board's certified list of eligible candidates was to consist of individuals who scored seventy-percent or higher on the written exam. SeeBrief for Petitioner at 4.
The Board heard evidence regarding the test results' disparate and adverse impact on blacks. SeeBrief for Petitioner at 13. "Disparate impact" is a "theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class." The Free Dictionary. "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." See id.
Ultimately, the Board was deadlocked on the issue of whether to certify, based on the test results, a list of eligible candidates for promotion. SeeBrief for Petitioner at 14. Because of the deadlock, the Board did not certify any list of eligible candidates. See id.Frank Ricci and other firefighters who were among the top scorers and thus eligible for immediate promotion, sued New Haven's mayor, John DeStefano, and other city officials under Title VII of the Civil Rights Act of 1964 ("Title VII"), alleging violation of the Equal Protection Clause. SeeBrief for Petitioner at 15. The federal district court granted DeStefano summary judgment, dismissing Ricci's Title VII and equal protection claims. SeeRicci v. DeStefano, 554 F.Supp. 2d 142, 142 (D.Conn. 2006). In a 7-6 decision, the Second Circuit affirmed the district court's rulings and denied a re-hearing. SeeRicci v. DeStefano, 530 F.3d 88,88 (2d Cir. 2008). The Supreme Court granted certiorari on the consolidated cases on January 9, 2009. SeeDocs. 07-1428 and 08-328.
Ricci v. DeStefano illustrates the difficulty that employers can face in trying to achieve a diversified workforce while refraining from discrimination against traditionally advantaged groups. See Daniel Schwartz, U.S. Supreme Court Agrees to Consider New Haven Firefighters Case ("New Haven Firefighters"), The Connecticut Employment Blog (Jan. 9, 2009). In deciding not to certify the Fire Department's exam results, where the pass rate for black candidates was only half the rate for white candidates, New Haven arguably was trying to avoid Title VII liability from African-Americans who may have alleged that they had been denied promotions based on a test that had disparate impact. SeeRicci v. DeStefano, 554 F.Supp. 2d 142, 162 (D.Conn. 2006).Yet New Haven seems to have ended up in a no-win situation-while its decision not to certify a list of eligible candidates allowed it to avoid a potential lawsuit with blacks, the same decision opened it up to a lawsuit from the white candidates who, but for New Haven's decision, could have been promoted. SeeBrief of Amici Curiae Center for Individual Rights, et al. in Support of Petitionerat 7.
For employers at large, the outcome of this case may provide them with some guidance as to how to achieve racial diversity in the workplace while avoiding lawsuits. SeeBrief of Center for Individual Rights at 7. Employers who must comply with anti-discrimination statutes in relation to the Voting Rights Act, the Fair Housing Act, and even No Child Left Behind may all be affected by the court's decision, because their "race-neutral practices with race-related goals" may be "constitutionally suspect" if the Court decides in favor of Ricci. See Brief for Respondent,John DeStefano et al. at 47-48. In contrast, if the Court decides in favor of DeStefano, it may send a message to employers throughout the nation that rejecting examinations with racially disproportionate results is a permissible strategy for avoiding Title VII lawsuits. See Brief of Amici Curiae of Pacific Legal Foundation, et al. ("PLF") in Support of Petitioner at 5. Either way, the Court will clarify when employers' efforts to comply with Title VII's disparate impact provisions crosses over the impermissible line to discrimination. See Brief for Respondentat 45.
Petitioner Frank Ricci states that the Court's decision will help define the extent to which "innocent non-minorities, solely because of their race," should "shoulder the burden of advancing employment opportunities for minority candidates." Brief for Petitioner at 67. He asserts that a Court decision in favor of DeStefano will amount to a sanction of employers' abilities to discriminate against whites, as long as they assert "unfounded, good faith" fear of Title VII lawsuits from blacks. See id. at 30. This, Ricci argues, could allow employers to repeatedly administer and reject examinations until they have the desired proportionality in their test results for blacks and whites. See id. at 31-32. Furthermore, Ricci adds, a Court decision in favor of Destefano could send a message to employers that it is permissible for them to cater to lobbyists for certain racial minorities. See id. at 30-31.
On the other hand, Respondent and New Haven Mayor John DeStefano and other city officials argue that if Ricci prevails, employers' decisions to employ a race-neutral promotional exam to avoid the disparate impact of a previous exam will be subject to strict scrutiny as a racial classification. See Brief for Respondentat 47. As a result, courts would essentially be scrutinizing employers every time they made a "race-conscious" decision. See Brief of Amicus Curiae the United States Supporting Vacatur and Remand at 24. Amici the United States also believes that such a result would be unnecessary because there is a distinguishable difference between making a decision to promote or not promote an individual becauseof race, and being "race-conscious" and alert to exam results which display disparate impact. See id.The distinction, the United States explains, is that "where an employer acts in good faith in response to the disparate impact, the decision is based on the judgment that the tests themselves may have been racially discriminatory." See id. at 12.
However, some amici argue that the distinction does not matter because any employment decision based on race should be suspect, whether motivated by benign or sinister intentions. SeeBrief of Amicus Curiae of Anti-Defamation League in Support of Neither Party at 6. Ricci's supporters assert that a decision in favor of DeStefano would essentially condone racial classifications as part of employment decisions, undermining state laws which prohibit discrimination based on race. See Brief of PLF at 6. DeStefano's supporters, however, contend that a decision in favor of Ricci would undermine Congress' intent to allow employers some flexibility in how they analyze and remedy discriminatory practices. See Brief of the United States at 13. Congress, they argue, perceived employers and not courts to be in the best position to determine strategies for preventing discrimination in the workplace. See id. at 12-13.
Both statutory and constitutional safeguards exist to protect individuals against racial discrimination in employment. See, e.g.,42 U.S.C. 2000e-2(a); U.S. Const. amend. XIV, §1. Here, arguments center on the Equal Protection Clause of the Constitution and Title VII. This case concerns a tension in those safeguards where an exam necessary for promotion produced racially disproportionate results: certifying the exam may mean discrimination against the group injured by the exam, while rejecting the exam may mean discrimination against the group benefited by the exam.
Title VII: Statutory protection against employment discrimination
According to Title VII, an employer may not "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 employment, because of such individual's race." 42 U.S.C. 2000e-2(a)(1). Additionally, an employer may not "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race." 42 U.S.C. 2000e-2(a)(2). Furthermore, employers may not "adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race" for promotion decisions. 42 U.S.C. 2000e-2(l).
Petitioner Frank Ricci and the other petitioners argue that New Haven violated 42 U.S.C. 2000e-2(a)(1)-(2) and 42 U.S.C. 2000e-2(l). SeeBrief for Petitioner, Frank Ricci et al. at 43, 45, 62. By refusing to certify an exam necessary for promotion because exam scores were racially disproportionate, Ricci argues New Haven denied the higher scoring candidates a promotion because of their race. See id.Respondent, Mayor John DeStefano, argues that certifying the exam could have been a Title VII violation in itself since the results of the exam favored one racial group over another. SeeBrief for Respondent, John DeStefano et al. at 15. In other words, DeStefano claims that by declining to certify an exam that would have otherwise violated Title VII, New Haven did not thereby violate Title VII. See id. DeStefano also claims that New Haven did not violate 42 U.S.C. 2000e-2(l) because the exam scores were discounted and not altered. See id. at 40.
How much evidence of a Title VII violation is needed in order to claim Title VII as a defense? Ricci claims that DeStefano needs a "strong basis in evidence" for a Title VII violation to decline to certify the exam, and that a prima facie case for a Title VII violation is an insufficient justification for denying a promotion on account of race. SeeBrief for Petitioner at 49-50. Moreover, Ricci claims that DeStefano would have a complete defense to the exam's potential violation of Title VII, as the exam was content-valid and without a sufficient alternative equivalent. See id.at 54. DeStefano, on the other hand, claims that a lower standard than "strong basis" applies here, and that a prima facie case for a Title VII violation is enough to decline to certify the exam. SeeBrief for Respondent at 22. DeStefano argues that this is true especially where there is evidence of test flaws or less-discriminatory equivalents, all of which cut against defending the exam under Title VII. Seeid.
Equal Protection: Constitutional protection against employment discrimination
According to the Equal Protection Clause, "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, §1. The issue here is whether New Haven violated the Equal Protection Clause, which requires a determination of the correct standard of review and an evaluation of the action under that standard.
Ricci argues that New Haven's actions must be reviewed under "strict scrutiny." SeeBrief for Petitioner at 21-23. According to Ricci, race-based government actions trigger strict scrutiny, requiring the government to show both a compelling state interest and that the action was narrowly tailored to meet that interest. See id.Here, Ricci argues, the decision not to certify the exam was based on race-New Haven relied on "raw racial labels and distributions" to reach its decision not to certify and thus deny promotion. See id.at 23-24. On the other hand, DeStefano counters that New Haven's actionwas race-neutral because the decision not to certify the exam applied to all candidates, regardless of race. SeeBrief for Respondent at 14, 42. Moreover, DeStefano argues that given the evidence that the exam violated Title VII, white candidates should not have received disproportionately higher scores. See id. at 42-43. Thus, DeStefano contends, the disparate impact on white candidates as a result of not certifying the exam is irrelevant. See id.
Ricci argues that, even if the decision not to certify was facially race-neutral, a racial motivation may trigger strict scrutiny. SeeBrief for Petitioner at 24-25. Thus, according to Ricci, the decision not to certify because the higher scoring candidates were not black is a racial motivation which triggers strict scrutiny. See id.However, DeStefano argues that New Haven's motivation was to comply with Title VII, and thus Ricci's focus on the underlying racial distribution is misplaced. SeeBrief for Respondent at 48-49. Moreover, according to DeStefano, allowing attempted compliance with Title VII disparate impact provisions to trigger race-related strict scrutiny would cast doubt on attempts to comply with other laws such as Title VII, the Voting Rights Act, and the Fair Housing Act. See id. at 45-48.
Assuming that strict scrutiny applies, however, Ricci argues that New Haven fails this review because New Haven lacks a compelling state interest in declining to certify the exam and denying promotions to the higher scoring candidates. SeeBrief for Petitioner at 27. Ricci contends that "avoiding unintentional racial disparities" cannot provide a compelling state interest for discounting the exam. See id.at 28. In contrast, DeStefano claims that while the Equal Protection Clause might not provide an interest in avoiding unintentional racial discrimination, compliance with Title VII's disparate impact provisions is a compelling interest. SeeBrief for Respondent at 49-52. DeStefano also points out that Title VII is a federal statute which the states are required to enforce under the Supremacy Clause. Seeid.
However, Ricci claims that, if statutory compliance is a compelling state interest, then New Haven needs to establish a strong basis for believing that the exam did not comply with Title VII. SeeBrief for Petitioner at 33-36. Ricci claims that New Haven lacked a strong basis, or perhaps any basis, to believe that it had violated Title VII, because the exam was content-valid and without equivalent alternatives. See id. DeStefano, however, claims that the prima facie violation of Title VII, coupled with evidence of testing flaws and availability of alternative equivalents, is enough to establish its basis. SeeBrief for Respondent at 53-55.
Lastly, Ricci argues that even if DeStefano could show a compelling state interest in rejecting the exam results, the rejection was not narrowly tailored to meet the compelling interest as required under strict scrutiny. SeeBrief for Petitioner at 40-42. According to Ricci, New Haven failed to try other measures, such as alternative testing or study aids. See id. Moreover, Ricci contends New Haven chose a blunt instrument by completely disregarding the results of a carefully designed race neutral exam. See id.On the other hand, DeStefano claims that certifying the exam would violate Title VII, and thus the decision not to certify the exam is narrowly tailored to meet its compelling interest of complying with Title VII. SeeBrief for Respondent at 55-56. As to the narrower alternatives proposed by Ricci, DeStefano argues that it could do nothing narrower than strike out the test once the Title VII concerns became apparent in the results. See id.
The Court's decision in this case will have far-reaching effects on disparate impact jurisprudence. It will clarify for employers the steps they may take in efforts to create a more diverse workplace, while avoiding Title VII lawsuits alleging "reverse discrimination," i.e., discrimination against traditionally advantaged groups.
Prepared by: James McConnell and Lucienne Pierre
Edited by: Hana Bae
United States Supreme Court
RICCI ET AL.v. DESTEFANO ET AL., (2009)
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 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. 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 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; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in-evidence standard, the Wygant plurality 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 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 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.
FRANK RICCI, et al., PETITIONERS
JOHN DeSTEFANO et al.
FRANK RICCI, et al., PETITIONERS
JOHN DeSTEFANO et al.
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 examinations to identify the best qualified candidates.
In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. 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 studied for months, at considerable personal and financial cost.
When the examination results showed that white candidates 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 performance sued the City and some of its officials. Theirs is the suit now before us. The suit alleges that, by discarding the test results, the City and the named officials discriminated 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 Amendment. 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 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 respondents' actions may have violated the Equal Protection Clause.
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).
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 governed 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 determined by job-related examinations. After each examination, 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 total score. To sit for the examinations, candidates for lieutenant needed 30 months' experience in the Department, a high-school diploma, and certain vocational training 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 specializes in designing entry-level and promotional examinations 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 developed 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 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, including 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, interpersonal 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 insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. 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 Haven's throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. 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 examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion 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 examination--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.
The City's contract with IOS contemplated that, after the examinations, IOS would prepare a technical report that described the examination processes and methodologies 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 administered the tests.) Based on the test results, the City officials expressed concern that the tests had discriminated against minority candidates. Legel defended the examinations' validity, stating that any numerical disparity between 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 "appears to have been raised by ... Ude").
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 impact on these two exams." App. to Pet. for Cert. in No. 07-1428, at 466a. She distributed lists showing the candidates' 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 "nationally recognized" materials that represented the "accepted 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 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.
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 association, 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 Lieutenant and Captain." Id., at A838. At the end of this meeting, the CSB members agreed to ask IOS to send a representative 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.
At a third meeting, on February 11, Legel addressed the CSB on behalf of IOS. Legel stated that IOS had previously prepared entry-level firefighter examinations for the 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 performed of the captain and lieutenant positions--the interviews, 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 results 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 scrutinized 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 differently than another group." Id., at A961.
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 methodology." Id., at A1020. The first, Christopher Hornick, spoke to the CSB by telephone. Hornick is an industrial/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 minorities 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 professionally." 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 administered--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. Hornick 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 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 process 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 company "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 relevant 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 minorities on testing," or that "more whites ... take the exam." Id., at A1054.
The final witness was Janet Helms, a professor at Boston College whose "primary area of expertise" is "not with firefighters per se" but in "race and culture as they influence performance on tests and other assessment procedures." 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 people 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 questionnaires were white, the test questions might have favored white candidates, because "most of the literature on firefighters 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.
At the final CSB meeting, on March 18, Ude (the City's counsel) argued against certifying the examination results. 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 procedures" 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 exams "have not had this kind of result," and that previous 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 ... because Dr. Hornick said it?
"MR. UDE: I think that by itself would be sufficient. Yes. I also would point out that ... it is the employer'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 opportunity. 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.
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 supported 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 certification; 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 promotions. 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 captain'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.
The CSB's decision not to certify the examination results 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 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 conspired to violate the Equal Protection Clause of the Fourteenth Amendment. Petitioners also filed timely charges of discrimination with the Equal Employment Opportunity 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 examination results. It follows, they maintained, that they cannot be held liable under Title VII's disparate-treatment provision 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 disparate treatment and unconstitutional discrimination.
The District Court granted summary judgment for respondents. 554 F. Supp. 2d 142. It described petitioners' 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 alternative 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 pinpoint 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 petitioners. 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, unpublished summary order; it later withdrew that order, issuing 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 written 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 constitutional question could also arise. We found it prudent and appropriate to grant certiorari. 555 U. S. ___ (2009). We now reverse.
Petitioners raise a statutory claim, under the disparate-treatment prohibition of Title VII, and a constitutional claim, under the Equal Protection Clause of the Fourteenth 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) ("571ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case").
Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as "disparate treatment") as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as "disparate impact").
As enacted in 1964, Title VII's principal nondiscrimination provision held employers liable only for disparate treatment. That section retains its original wording today. 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 employment, 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 understood type of discrimination," Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977), and occur where an employer 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 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 disparate 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 [minorities] cannot be shown to be related to job performance, the practice is prohibited." Ibid.; see also id., at 432 (employer's burden to demonstrate that practice has "a manifest relationship to the employment in question"); Albemarle 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 complaining 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 discrimination. That provision is now in force along with the disparate-treatment section already noted. Under the disparate-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 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).
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 because 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 actions 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 examination 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 related to the racial distribution of the results"). Without some other justification, this express, race-based decisionmaking 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 disparate impact ... does not, as a matter of law, constitute 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 disparate-impact provisions constitutes prohibited discrimination 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 becausethe 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 prohibitions 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 workplace 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, 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 prohibited 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. Cleveland, 478 U. S. 501, 515 (1986); see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 290 (1986) (O'Connor, J., concurring in part and concurring in judgment). Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a nearstandstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate 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 adverse 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). Allowing employers to violate the disparate-treatment prohibition 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 appropriate 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 opinion)). This suit does not call on us to consider whether the statutory constraints under Title VII must be parallel in all respects to those under the Constitution. That does not mean the constitutional authorities are irrelevant, however. 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 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. The plurality stated that those "related constitutional duties are not always harmonious," and that "reconciling them requires ... employers to act with extraordinary care." Ibid. The plurality required a strong basis in evidence because "[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 Court applied the same standard in Croson, observing that "an amorphous claim that there has been past discrimination ... 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 workplace of "practices that are fair in form, but discriminatory in operation." Griggs, supra, at 431. But it has also prohibited employers from taking adverse employment actions "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 compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers' voluntary compliance efforts, which are essential to the 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 expectations 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 firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.
If an employer cannot rescore a test based on the candidates' race, §2000e-2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether 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) ("571or shall it be an unlawful employment practice for an employer to give and 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 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 constitutionality 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 considering, 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 comments 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 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 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 discrimination, 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 provision. To succeed on their motion, then, petitioners must demonstrate that there can be no genuine dispute that there was no strong basis in evidence for the City to conclude 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 percent "of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies 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 candidates 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 results would have had an impermissible disparate impact. 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 results. That is because the City could be liable for disparate-impact discrimination only if the examinations 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). 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.
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 contradicted by the record." Scott, supra, at 380. The CSB heard statements from Chad Legel (the IOS vice president) 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 any firefighting experience. Lewis stated that the "questions were relevant for both exams." CA2 App. A1053. The only other witness who had seen any part of the examinations, 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 specifically apply to firefighting practices in New Haven. But Legel told the CSB that IOS had addressed those concerns--that it entertained "a handful" of challenges to the validity of particular examination questions, that it "reviewed 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 particular question"). Id., at A955-A957. For his part, Hornick said he "suspect[ed] that some of the criticisms ... [leveled] 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 contract 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 meeting to explain how it developed and administered the examinations. IOS stood ready to provide respondents with detailed information to establish the validity of the exams, but respondents did not accept that offer.
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 rational 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 highest scores" on a promotional examination. New Haven, Conn., Code of Ordinances, Tit. I, Art. XXX, §160 (1992). 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 candidates 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 banding 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 examination results.
Third, and finally, respondents refer to statements by Hornick in his telephone interview with the CSB regarding alternatives to the written examinations. Hornick stated his "belie[f]" that an "assessment center process," which would have evaluated candidates' behavior in typical 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 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 Department 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 contradictory) 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 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 people." Id., at A1073. That task was beyond the reach of the CSB, which was concerned with the adequacy of the test results before it.
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 procedure that was true to the promise of Title VII: No individual 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 rationale for the City's refusal to certify the results. The injury arises in part from the high, and justified, expectations 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 expense, 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 lawsuit 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.
FRANK RICCI, et al., PETITIONERS
JOHN DeSTEFANO et al.
FRANK RICCI, et al., PETITIONERS
JOHN DeSTEFANO et al.
Justice Scalia, concurring.
I join the Court's opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-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 disparate-treatment provisions forbid "remedial" race-based actions when a disparate-impact violation would not otherwise 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 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 designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, 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, religious, 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 disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. v. Peńa, 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, intentional discrimination--to "smoke out," as it were, disparate 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 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 arguably 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., nonracially 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) (describing 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 unnecessary 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.
FRANK RICCI, et al., PETITIONERS
JOHN DeSTEFANO et al.
FRANK RICCI, et al., PETITIONERS
JOHN DeSTEFANO et al.
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 Haven's decision to reject the results of its exam. The dissent'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.
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 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 component 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 inadequate." 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 therefore summary judgment for petitioners is required. Because 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 disparate-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 provided "good cause" for the decision, post, at 19, and the dissent argues--incorrectly, in my view--that no reasonable 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 concern about disparate-impact litigation was simply a pretext. 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.
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 referred, 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.
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 prosecuted 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 political campaigns, [and] is considered a valuable political supporter and vote-getter." Id.