Taking Measures To Diversify A Workforce Is Now Risky Business: The Supreme Court Rules That Correcting Discrimination Can Itself Be Discriminatory

by Sheryl L. Axelrod

In the latest of a series of controversial decisions, the Supreme Court, split 5 justices to 4, sounded an unlikely warning to employers: take measures to diversify your workforce at your peril.  Ricci v. Destefano concerns Title VII of the Civil Rights Act which prohibits employment discrimination on the basis of race, color, religion, sex or national origin.  The Act makes two types of discrimination unlawful: intentional discrimination ("disparate treatment"), and non-racially motivated behavior which disproportionately adversely impacts minorities ("disparate impact").  Ricci goes to the heart of the tension between the two types of discrimination, and leaves employers to walk a tightrope between them.
Ricci, decided on June 29, 2009, concerned New Haven, Connecticut's exam for firefighters seeking promotions.  While there was no intention to skew the results, white candidates outperformed their minority counterparts.  Both sides then threatened to sue the City under Title VII.  Minority firefighters who would be denied promotions threatened to sue if the City kept the test results.  They claimed there was an unlawful disparate impact, i.e., that the test results illegally negatively impacted them in comparison to white firefighters.  White firefighters eligible for promotions also threatened suit.  They claimed throwing out the test results would amount to disparate treatment, i.e., unlawfully denying them promotions based on their race.  Caught in the crosshairs of the two groups, the City tossed out the test results and the white firefighters sued.
The Supreme Court decided that an employer may not correct a racial disparity in those receiving promotions unless that disparity is so great there is "a strong basis in evidence" the employer would be liable for an unlawful disparate impact.  As the Supreme Court put it: "We conclude that race-based action like the City's [demotion of white firefighters] 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 Ricci ruling effectively puts employers in a catch-22 situation.  On the one hand, if non-minorities are promoted in disparate numbers, employers may be liable to minority workers for the resulting disparate impact they suffer.  On the other hand, if employers try to correct the disparity, they may be liable to non-minorities for disparate treatment.  Employers are well advised to consult with counsel if they have any concerns about the racial composition of their workforce.  Under the standard announced by the Supreme Court, it is now harder to change it, even to correct racial disparities.
Ricci also affects employees.  It will be tougher for minorities to convince employers to take corrective action to diversify those being promoted.  Employers may be loathe to risk liability for disparate treatment for doing so.