Putting Out the Fire Created by Ricci

In Ricci, the city employer refused to certify the results of a promotional exam for its firefighters because of fear that doing so would result in disparate impact discrimination and liability. The African-American pass rate was half that of white test takers. The city received political pressure and threats of litigation if it certified the results. Consequently, the city decided not to promote anyone, including the white and hispanic employees who otherwise would have been promoted as a result of the exam. The employer argued it acted in good-faith compliance with Title VII. The Supreme Court recognized that the employer's objective was to avoid disparate impact discrimination (and liability), nevertheless, the Court concluded “whatever the city's ultimate aim ' however, well intentioned and benevolent it might have seemed ' the city made its employment decision because of race.” Id. at 2674.

The Court recognized the conflict an employer may face when its decision results in a significant statistical disparity adversely affecting a particular race. Nevertheless, the Court held that an employer may not make a decision based on race in order to avoid disparate impact liability without running afoul of Title VII's disparate treatment prohibition. The Court concluded that a mere good faith fear of disparate impact liability is not a defense to claims of disparate treatment discrimination. An employer can only take advantage of such a defense if there is a strong basis in evidence of disparate impact liability.