High court's retreat puts employers on notice

WASHINGTON — The Supreme Court warned employers Monday against seeking a "preferred racial balance" in their work force, ruling that white firefighters who earned top scores on a test were the victims of illegal discrimination when New Haven, Conn., tossed out the results and denied them a promotion.

The 5-4 decision could have a broad impact on hiring and promotion policies, particularly in public agencies that are required by law to use civil-service-type tests.

Since the 1970s, the court had said employers should not use hiring or promotional tests that have a "disparate impact" on minorities. But the court pulled back from that approach Monday and said employers cannot discriminate against white job seekers so as to open more opportunities to blacks and Hispanics.

"No individual should face workplace discrimination based on race," Justice Anthony Kennedy said. Once an employer has given a test that is fair and geared to the job, it is "not entitled to disregard [it] based solely on the racial disparity in the results," he added.

The high court's ruling in Ricci v. DeStefano is a clear win for the white firefighters, but it does not appear to make a sweeping change in the law. The justices did not say, for example, that it is unconstitutional for public employers to consider the racial makeup of their work force. And it does not strike down the part of the Civil Rights Act that says employers should avoid job standards and tests that have a "disparate impact" on minorities.

The ruling overturns a decision of Supreme Court nominee Sonia Sotomayor who, along with two other judges on the 2nd U.S. Circuit Court of Appeals, rejected the claims of the white firefighters. She relied on the court's past decisions.

The decision Monday highlighted the final day of the court's term — and the last day for retiring Justice David Souter. He agreed with the liberal dissenters who said the city of New Haven was justified in setting aside a test that would have kept any blacks from being promoted.

The new standards announced by the court will make it much harder for employers to discard results of hiring and promotion tests once they are administered, even if they have a disproportionately negative impact on members of a given racial group.

Public employers that use civil-service examinations and similar tests will be affected most directly, but the principle announced by the court applies to all employers and all sorts of procedures used to rank and sort potential and current employees.

For decades, the court has been closely split over whether race can or should play a role in who is hired or promoted. In the Civil Rights Act of 1964, Congress said employers may not discriminate against anyone because of race, gender or ethnicity. In the 1970s, however, the court said employers sometimes may give an edge to minorities to make up for a history of discrimination.

This conflict since has played out in many cities in long-running legal battles involving the fire and police departments.

On the one side, blacks and Hispanics have sued and claimed the paper-and-pencil tests unfairly discriminate against them. On the other side, lawyers for whites have sued when city officials fail to strictly follow the test results in awarding jobs.

When New Haven backed away from using the results from its 2003 promotional test, firefighter Frank Ricci and 19 others sued Mayor John DeStefano for racial discrimination.

Kennedy said New Haven officials were wrong to rely "on raw racial statistics" as a reason for setting aside its 2003 test for the firefighters. In all, 118 firefighters took the exam, hoping for one of 15 promotions to lieutenant or captain.

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito agreed.

Because the ruling interpreted Title VII of the Civil Rights Act, it applies to all employers, private as well as public.

Civil-rights lawyers criticized the decision but said it could force needed changes in testing. "This means more work on the front end. They need to make sure a test doesn't have a disparate impact," said John Payton, president of NAACP Legal Defense Fund.

In reading her dissent, Justice Ruth Bader Ginsburg appeared to tweak her conservative colleagues by citing a word used by President Obama.

"Mr. Ricci and his fellow petitioners understandably attract the court's empathy," she began.

Senate Republicans repeatedly have faulted Obama for having said he wanted judges who can show "empathy" for those who are vulnerable.

She went on to fault the court's majority for ignoring the history of discrimination against blacks and Hispanics in the New Haven Fire Department. Besides Souter, Justices John Paul Stevens and Stephen Breyer joined her dissent.

In a poignant moment in the courtroom, Chief Justice Roberts said he and his colleagues were sad to see Souter retire after nearly 20 years on the court, but added he understood his wish to "trade white marble for White Mountains," a reference to his native New Hampshire. Souter said he was "touched more than I can say" by the kind send-off from his eight colleagues.