Section I related the history of the case. Section II-A reiterated the doctrines underlying a disparate-treatment claim.
, and explained that the Court would not consider the Equal Protection Clause claim, since it would decide the Title VII disparate-treatment claim in favor of the petitioners. [1]
Kennedy first rejected the arguments that the City did not discriminate. In choosing not to certify the examination results because of the statistical disparity based on race—"i.e., how minority candidates had performed when compared to white candidates" -- it engaged in "express, race-based decisionmaking" (i.e. disparate treatment/intentional discrimination). The District Court was wrong to argue that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.” [2] "That argument turns upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective."
Second, Kennedy sought to determine whether, under the statutory framework of Title VII, this disparate treatment--which threatens Title VII’s disparate-treatment provision [3] (commanding that employers cannot take adverse employment actions because of an individual’s race)--is provided any lawful justifications in the disparate impact (unintentional discrimination) provision (which would be threatened if the City certified the results).
Instead, he looked to analogous Equal Protection cases [8] for the statutory construction that, in instances of conflict between the disparate-treatment and disparate-impact provisions, permissible justifications for disparate treatment must be grounded in the strong-basis-in-evidence standard.
He concluded that "once [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race." [14] "We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action."
Next, Kennedy inquired whether the city's justifications for its disparate-treatment discrimination met this strong basis in evidence standard. He concluded that they did not: "Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII." "There is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."
The racial adverse impact here was significant, and petitioners do not dispute that the test results confronted the City with a prima facie case of disparate-impact liability. Based on the degree of adverse impact reflected in the results, respondents were compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact. The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, [15] and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C).
There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” Scott, supra, at 380.
Respondents also lacked a strong basis in evidence of an equally valid, less-discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt. Respondents raise three arguments to the contrary, but each argument fails.
The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a law-suit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
Section I related the history of the case. Section II-A reiterated the doctrines underlying a disparate-treatment claim.
, and explained that the Court would not consider the Equal Protection Clause claim, since it would decide the Title VII disparate-treatment claim in favor of the petitioners. [1]
Kennedy first rejected the arguments that the City did not discriminate. In choosing not to certify the examination results because of the statistical disparity based on race—"i.e., how minority candidates had performed when compared to white candidates" -- it engaged in "express, race-based decisionmaking" (i.e. disparate treatment/intentional discrimination). The District Court was wrong to argue that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.” [2] "That argument turns upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective."
Second, Kennedy sought to determine whether, under the statutory framework of Title VII, this disparate treatment--which threatens Title VII’s disparate-treatment provision [3] (commanding that employers cannot take adverse employment actions because of an individual’s race)--is provided any lawful justifications in the disparate impact (unintentional discrimination) provision (which would be threatened if the City certified the results).
Instead, he looked to analogous Equal Protection cases [8] for the statutory construction that, in instances of conflict between the disparate-treatment and disparate-impact provisions, permissible justifications for disparate treatment must be grounded in the strong-basis-in-evidence standard.
He concluded that "once [a] process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race." [14] "We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action."
Next, Kennedy inquired whether the city's justifications for its disparate-treatment discrimination met this strong basis in evidence standard. He concluded that they did not: "Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII." "There is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."
The racial adverse impact here was significant, and petitioners do not dispute that the test results confronted the City with a prima facie case of disparate-impact liability. Based on the degree of adverse impact reflected in the results, respondents were compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact. The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, [15] and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C).
There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” Scott, supra, at 380.
Respondents also lacked a strong basis in evidence of an equally valid, less-discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt. Respondents raise three arguments to the contrary, but each argument fails.
The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a law-suit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.