Today's ruling in Ricci v. DeStefano should prod New Haven and every other employer-public as well as private-to place a premium on carefully developing practices for hiring and promoting employees. Most municipal employers use a better approach to evaluate job candidates than New Haven did here. According to a 1996 study cited by Justice Ginsburg in her dissent, nearly two-thirds of surveyed municipalities used assessment centers, which provide a simulation of the real-world work experiences. This movement away from written, multiple-choice tests makes sense especially for firefighting jobs. As Justice Ginsburg notes, "‘there is a difference between memorizing . . . fire fighting terminology and being a good fire fighter. If the Boston Red Sox recruited players on the basis of their knowledge of baseball history and vocabulary, the team might acquire [players] who could not bat, pitch, or catch.'" Slip Op. at 28, n. 12 (quoting Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1023 (1st Cir. 1974)).
It is likely that the Justices in the majority would not have objected if New Haven had decided from the outset to follow most other fire departments and use an assessment center to select firefighters for promotion to lieutenant and captain. As Justice Kennedy's majority opinion explains, our nation's core equal employment opportunity law, Title VII of the Civil Rights Act of 1964, "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 race." Slip Op. at 25.
What separated the majority and dissenting justices was their conflicting views about what legal standard should apply after an employment practice has been put in place and a municipality takes action to remedy its flaws. The majority's newly created "strong basis in evidence" standard will make it harder-but not impossible-for employers to abandon discriminatory employment practices after they have decided to use them. For this reason, this new standard is contrary to Congress's intent in enacting Title VII and completely neglects the long history of racial exclusion and discrimination especially in fire departments nationwide.
It is also significant that today's ruling does not change the legal standard that applies if and when minorities or women sue a city like New Haven for using an employment practice that perpetuates discrimination in the workplace. Under Title VII's disparate impact provisions, the fire department would be liable if an employment practice causes a significant adverse impact on minority or female employees unless the fire department could show that the practice was job-related and consistent with business necessity. Even if the employer makes such a showing, it would still be liable if the plaintiffs could establish a less discriminatory alternative.
While the Court's majority did not believe there was sufficient evidence in the record to establish that a less discriminatory alternative existed, in other cases plaintiffs should be able to make a persuasive case that there are, in fact, ways to design fairer and more effective promotional tests. Thus, civil rights advocates, as well as employers, must take up Ricci's challenge and defend equal employment opportunity.