In what could become a major showdown over the use of race as a factor in hiring, the US Supreme Court on Wednesday is set to hear a reverse-discrimination case filed by white and Hispanic firefighters who claim they were passed over for promotion because they aren't African-American.
At issue in Ricci v. DeStefano is whether city officials in New Haven, Conn., acted legally when they threw out the results of a promotion exam because no black candidates scored high enough to be considered for a management job.
Officials said they were worried that black applicants might file a discrimination lawsuit against the city if they went ahead and promoted the white and Hispanic firefighters who scored well on the exam.
Instead, the test results for all candidates were thrown out. As a result, in 2004, the high-scoring white and Hispanic firefighters sued for discrimination, claiming they would have been promoted to lieutenant and captain positions if they were African-American.
Title VII of the Civil Rights Act makes it illegal for an employer to hire, fire, or promote workers based on race or skin color. The law also authorizes victims of discrimination to sue an employer if a promotion test exerts a disparate impact on minority workers.
Members of the fire department were competing for eight openings for lieutenant and seven openings for captain. Of 41 applicants for captain, 22 passed, and of 77 applicants for lieutenant, 34 passed.
Twenty-seven of the applicants were African-American. While many passed the test, they did not score high enough to qualify under civil service rules for the 15 available jobs.
New Haven officials said they threw out all test results to avoid violating the disparate impact prohibitions in Title VII.
Lawyers for the successful test-takers said that by throwing out the test results based on the race of those who passed, the city engaged in illegal race discrimination against the white and Hispanic firefighters.
"The court has made clear that meaningful equality under the [Constitution's] equal protection clause and equal opportunity under Title VII are not achieved by discriminating against one group of individuals to benefit another group on account of race," writes New Haven lawyer Karen Lee Torre in her brief on behalf of the firefighters.
"Petitioners ask nothing more than the basic American right to be judged by who they are and what they have accomplished, not by the color of their skin," she added.
Among the white firefighters who are suing is Frank Ricci, who has been diagnosed with dyslexia. Mr. Ricci paid $1,000 for study materials and to have those materials converted to audio recordings to help overcome his dyslexia. Ricci's hard work paid off with a high score on the test.
There is no detail in the court briefs explaining specifically why individual black candidates did not score well on the test. Instead, the city's focus has been on the racial composition of the pass-fail mix in test scores. City officials say the disparity suggests there was bias in the content and format of the test.
New Haven had hired a consultant to develop the test with an eye toward eliminating any potential bias that might cause minority applicants to score lower. The consultant advised the city to validate the test results and promote those who passed. After five public hearings, the city's civil service board voted 2-2 to jettison the test results.
In his brief to the court, the city's lawyer, Christopher Meade of Washington, says the test results "reflected a severe disparate impact" against African-American applicants. He says evidence presented to the civil service board "raised further concerns that the tests had not in fact identified the most qualified candidates."
Mr. Meade says that rather than discriminating against the top scorers in the test, the city merely took action to avoid a potential violation of the disparate impact prohibition within Title VII.
"The city did not adjust test scores to benefit minority candidates, adopt affirmative-action policies, or engage in racially proportional promotions," Meade writes. "Rather, upon having its concerns reinforced by a deliberative, open process, it simply declined to use the results."