Human Resource & Labor News
www.agc.orgJuly 9, 2009 / Issue No. 3-09
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On the Inside
Professional Development
AGC Webinar 8/13: RIFs, Lay-Offs & Furloughs in Construction: Avoiding the Pitfalls
Registration Open for HR Professionals Conference and Training & Development Conference
U.S. Department of Labor Schedules Regional Compliance Seminars for Employers
DHS to Implement E-Verify Rule but Revoke No-Match Rule
Federal Government Makes Employers Subject of Immigration Enforcement with I-9 and E-Verify Audits
Form I-9 Valid After June 30 Expiration Date
Wages & Benefits
DOL Issues Guidance on Davis-Bacon Requirements for Stimulus-Funded Projects
Minimum Wage to Increase on July 24
Labor Relations
AGC Persuades Supreme Court to Clarify Federal Remedies For Violations of Collective Bargaining Agreements
AGC Holds First Regional Meeting with Carpenters and Operating Engineers
Equal Employment Opportunity
OFCCP to Place Special Emphasis on Construction Industry Compliance
Supreme Court Offers Guidance to Employers Faced with the Dilemma of Potential Competing Discrimination Claims
Supreme Court Offers Guidance to Employers Faced with the Dilemma of Potential Competing Discrimination Claims

Resolving a thorny issue faced by employers finding themselves threatened with a discrimination claim regardless of what action they take, the Supreme Court on June 29 held that an employer that acts in a race-conscious fashion to avoid being sued under a disparate-impact theory, must have something more than a good-faith belief that such a suit was likely – otherwise, it has violated Title VII of the 1964 Civil Rights Act.

In Ricci v. DeStefano, 17 white and one Hispanic firefighters who scored highly on a promotional exam sued the mayor of New Haven, Conn., the city and other officials who, citing a fear that minority firefighters would sue, refused to certify the test results. Both the district court and Second Circuit Court of Appeals accepted the city’s stated fears and entered summary judgment for it. But in a 5-4 ruling the Supreme Court reversed, holding that an employer’s mere good-faith belief that it will be sued if it doesn’t undertake a race-conscious move that otherwise would violate Title VII, is insufficient to shield the employer from liability. Instead, an employer facing a potential disparate-impact claim from one side (here, from minority firefighters) must show a “strong basis in evidence” that the remedial action (throwing out the test results) was necessary in order to head off that claim. Otherwise, it has violated Title VII by subjecting the harmed group (here, the white/Hispanic firefighters) to disparate treatment.

Writing for the majority, Justice Anthony Kennedy noted that requiring an employer to show a “strong basis in evidence” for its stated fear of litigation reconciles both the disparate-treatment and disparate-impact provisions of Title VII, and allows 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” with Title VII, which the Court called “essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination.” At the same time, it does not require an employer to act only when there is a “provable, actual violation” of Title VII, before it can avail itself of a defense to liability.

Ricci should be considered fully by any employer facing, as Justice Souter characterized it in the oral argument, a “damned if you do/damned if you don’t” dilemma exposing it to potential Title VII liability regardless of what it does. The majority’s opinion made clear that it is not questioning employers’ ability to broaden opportunities for all groups to apply for promotions or to participate in the promotional process. Nor does it forbid, the Court said, an employer from considering how to design a test or hiring practice to provide a fair opportunity for all individuals regardless of race – before the test is given or the practice implemented. But once such processes have been established, selection criteria announced, and tests given, employers may not invalidate them without having a “strong basis in evidence” that, had they not, they would face a disparate-impact claim.

Dissenting from the ruling, Justice Ginsburg and three colleagues would have affirmed the city’s actions as proper, or at a minimum, remand back to the lower courts for determination of whether New Haven had a “strong basis in evidence” for its fear that minority firefighters would sue.

Editor’s noteThis article was written by guest author Michael F. Smith, Shareholder, Butzel Long, and reprinted with permission.  Mr. Smith can be reached by e-mail at or by telephone at (202) 454-2860.
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