Very few observers can be surprised by the outcome of Ricci v. DeStefano, perhaps the most anticipated and controversial of this Term's Supreme Court decisions. It was widely predicted that the Court would rule for the white firefighter plaintiffs. There was every reason to expect that the vote would be 5-4, divided on the usual conservative-liberal lines. And history suggested that the majority opinion would be written by Justice Anthony Kennedy, who on the current Court casts the decisive vote in cases involving issues of race.
But four things about the decision are notable.
First, the Court announced what it acknowledged to be a new test to determine when Title VII allows employers to engage in avowedly racial decision-making with the aim of minimizing racial disparities in the workforce. The Court began with the premise that New Haven's action - refusal to certify civil service exam results that would have excluded all African-American candidates for promotion - "would violate the disparate-treatment prohibition of Title VII absent some valid defense" because it was "express, race-based decisionmaking." This understanding rejected the Obama Administration's argument that an employer acting with the intent to comply with Title VII's disparate impact provisions is not discriminating on the basis of race at all. The Court also rejected the government's argument that "an employer's good-faith belief that its actions are necessary to comply with Title VII's disparate-impact provision" is enough to justify race-conscious conduct. Such an approach, the Court warned, "would encourage race-based action at the slightest hint of disparate impact," "would amount to a de facto quota system," and would allow employers to discard test results (or engage in other employment practices) "with the intent of obtaining the employer's preferred racial balance."