Adam Liptak of the New York Times had an interesting preview about an important employment law case scheduled to be argued before the U.S. Supreme Court this month. In Ricci v. Destafano, scheduled for oral argument on April 22, 2009, the Court is being asked to determine whether the City of New Haven’s use, and then abandonment, of a firefighter promotional exam discriminated against white firefighters.
As Liptak wrote for the Times, Frank Ricci was an 11-year veteran of New Haven Fire Department who desired to advance to lieutenant. To qualify for the promotion Ricci had to take a test that the City paid $100,000 to an independent testing company to develop. The testing company , I/O Solutions, Inc., went to extraordinary lengths to ensure that the test was free of any racial bias.
Ricci wanted the promotion so badly that when the City offered the promotional exam, Ricci "gave up a second job and studied up to 13 hours a day. Mr. Ricci, who is dyslexic, paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He made flashcards, took practice tests, worked with a study group and participated in mock interviews."
Ricci finished 6th out of the 77 candidates that took the test. However, because none of the 19 African American firefighters scored high enough to qualify for the promotion, the City threw out the test. At this point it appears that the City was concerned about being sued by the African American firefighters who scored poorly on the test claiming that the test had a disparate or adverse impact on them.
Instead, Ricci (along with eighteen other firefighters) sued the City claiming that its abandonment of the test because none of the minority candidates qualified for promotion under the test constitutes unlawful discrimination. The trial court recounted that the City’s motives for abandoning the test that included fear of public criticism, the possibility of more lawsuits from minority applicants and a desire to promote diversity and manager role models for firefighters.
The case is likely to outline the extent to which an employer can go to further its goal of increasing racial diversity in the workplace. And while most "reverse discrimination" lawsuits do not tend to do well in Court, the facts in Ricci make for an intriguing case for the Justices to consider. For more background information and "pregame" commentary on this case, the National Journal Magazine, the New Haven Independent and the Connecticut Employment Law Blog have some interesting articles. Adversity.net has the results of the test by score and race.