What could an employer do to avoid the situation New Haven faced in this case?

Justice Kennedy * * * * * In 2003, 118 New Haven [Connecticut] firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. . . . The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost. When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations. Certain white and Hispanic firefighters who likely would have been promoted based on their good test performance sued the City and some of its officials. Theirs is the suit now before us. The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in violation of. . . . Title VII of the Civil Rights Act of 1964. . . . The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. candidates had performed when compared to white candidates. . . . We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. * * * * * If an employer cannot rescore a test based on the candidates’ race, then it follows . . . . that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates – absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision. . . . For the foregoing reasons, we adopt the strong-basis-inevidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII. * * * * * Title VII 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 their race. . . . 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. * * * * * C The City argues that, even under the strong-basis-in-evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect. * * * * * . . . .[T]here is no evidence—let alone the required strong basis in evidence—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 examination and qualified for promotions. The City’s discarding the test results was impermissible under Title VII. . . . 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. [Reversed and remanded.] Questions 1. a. Why did the city of New Haven reject the results of the promotion examination? b. Why did the court rule that the city had violated Title VII? c. Do you agree with the judgment of the court? 2. What could an employer do to avoid the situation New Haven faced in this case? 3. Frederick Claus, a white man with a degree in electrical engineering and 29 years of experience with Duquesne Light Company, was denied a promotion in favor of a black man who had not earned a bachelor’s degree and did not have the required seven years of experience. Only 2 of 82 managers in that division of Duquesne Light were black. Claus sued, claiming in effect that he was a victim of “reverse discrimination.” At trial, both sides conceded that the black candidate was an outstanding employee and that he was qualified to be a manager. Decide the case. Explain. See Claus v. Duquesne Light Co., 46 F.3d 1115 (1994); cert. den. 115 S.Ct. 1700 (1995) 4. In 1974, Birmingham, Alabama, was accused of unlawfully excluding blacks from management roles in its fire department. After several years of litigation, Birmingham adopted an affirmative action plan that guaranteed black firefighters one of every two available promotions. The city, the Justice Department, and others applauded the arrangement, but a group of 14 white firefighters claimed they were victims of reverse discrimination. After years of wrangling, the white firefighters’ claim reached the 11th Circuit Federal Court of Appeals. Was the affirmative action plan lawful? Explain. See In re Birmingham Reverse Discrimination Employment Litig., 20 F.3d 1525 (11th Cir. 1994) cert. den. sub nom.; Martin v. Wilks, 115 S.Ct. 1695 (1995). 5. In a later case involving the same promotional examinations at issue in Ricci, Michael Briscoe, an African American firefighter for the city of New Haven who applied to be promoted to lieutenant but was rejected brought a Title VII claim asserting that the city had created a disparate impact against African-Americans by weighing the written test more heavily than the oral examination. The city of New Haven brought a motion to dismiss in federal trial court. Decide. See Briscoe v. New Haven, 654 F.3d 200 (2nd Cir. 2011) cert. den. 132 S.Ct. 2741 (2012).

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