557 U.S. 557 (2009)
In 2003, the City of New Haven hired Industrial/Organizational Solutions, Inc. to develop and administer promotional examinations for lieutenant and captain positions in its fire department pursuant to a collective-bargaining agreement that required a written component weighted at 60 percent and an oral component weighted at 40 percent.1
IOS performed job analyses that deliberately oversampled minority firefighters to avoid unintentional bias favoring white candidates.2 The examinations were administered in November and December 2003.3
Seventy-seven candidates completed the lieutenant examination.4 Forty-one candidates completed the captain examination.5 The results showed pass rates of 58.1 percent for white candidates, 31.6 percent for Hispanic candidates, and 31.6 percent for black candidates on the lieutenant exam.6 Pass rates on the captain exam were 64.3 percent for white candidates, 37.5 percent for Hispanic candidates, and 0 percent for black candidates.7
Under the rule of three, the top ten candidates eligible for lieutenant promotion were all white.8 The top nine candidates eligible for captain promotion were seven whites and two Hispanics.9 After the results were released, the City held five public hearings before its Civil Service Board between January and March 2004.10
At those hearings, IOS vice president Chad Legel described the test-development process.11 Testing consultant Christopher Hornick criticized the 60/40 weighting and recommended assessment centers.12 Retired fire captain Vincent Lewis reviewed the content.13 Boston College professor Janet Helms discussed possible cultural bias in the job-analysis questionnaires.14 City officials including corporation counsel Thomas Ude and human-resources director Tina Burgett urged non-certification on the ground that the statistical disparity would expose the City to liability.15 Several candidates who had passed the exams urged certification.16 The Board deadlocked 2-2 and declined to certify the results.17
Seventeen white firefighters and one Hispanic firefighter who had passed the examinations sued the City, Mayor John DeStefano, and other officials in the United States District Court for the District of Connecticut, alleging violations of Title VII and the Equal Protection Clause.18 The District Court granted summary judgment for the defendants.19 The Court of Appeals for the Second Circuit affirmed in a per curiam opinion.20 The Supreme Court granted certiorari.21
Whether the City of New Haven violated Title VII's disparate-treatment provision by discarding the results of promotional examinations for lieutenant and captain positions because of the statistical racial disparity in those results?22
Title VII's disparate-treatment provision, 42 U.S.C. §2000e–2(a)(1), prohibits employers from taking adverse employment actions because of an individual's race.23
To reconcile this prohibition with the disparate-impact provision in §2000e–2(k), an employer may engage in race-based action only if it has a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the action.24
This standard is drawn from equal-protection precedents such as Richmond v. J. A. Croson Co.25
It requires more than a mere good-faith fear of litigation.26
Yes. The City discarded the examination results solely because of the statistical racial disparity.27
White candidates passed the lieutenant examination at a 58.1 percent rate while black and Hispanic candidates passed at 31.6 percent each.28 The captain examination produced similar imbalances.29
Under the rule of three, the top nine candidates for captain were seven whites and two Hispanics.30
The City's action constituted intentional discrimination under the disparate-treatment provision because it rejected the results explicitly on account of the race of the successful candidates.31
The examinations had been developed through job analyses that oversampled minority firefighters, source materials approved by department officials, and validation processes conducted by IOS.32
Yet the City turned a blind eye to this evidence of job-relatedness and business necessity.33
The City also failed to identify an equally valid, less-discriminatory alternative that it had refused to adopt.34
Suggestions such as assessment centers or altered weighting lacked supporting evidence of equal validity and availability at the time of the decision.35
Because the City lacked the required strong basis in evidence, its race-based rejection of the results violated Title VII.36
The City violated Title VII's disparate-treatment provision by discarding the examination results.37
Related opinions on this issue
Justice Scalia joined the Court's opinion in full.38
He wrote separately to observe that the decision merely postpones the question whether Title VII's disparate-impact provisions are consistent with the Constitution's guarantee of equal protection.
Scalia noted that the disparate-impact provisions may require employers to engage in race-based decisionmaking that the Equal Protection Clause forbids.39
He explained that Title VII not only permits but affirmatively requires race-based actions when a disparate-impact violation would otherwise result.40
Scalia concluded that the war between disparate impact and equal protection will be waged sooner or later and that it behooves the Court to begin thinking about how to make peace between them.41
Joined by Justice Scalia
Justice Alito joined the Court's opinion in full.
He wrote separately to emphasize that the City's decision was driven by political pressure from a vocal minority within the fire department and the community rather than a genuine assessment of Title VII compliance.42
He detailed how Reverend Boise Kimber and other influential leaders lobbied the mayor's office and how the City concealed its internal decision while working to persuade the Board.43
Alito concluded that a reasonable jury could find the City's asserted reason for scrapping the test results was a pretext for racial discrimination.44
Joined by Justices Stevens, Souter, And Breyer
Justice Ginsburg dissented.45
She contended that the City had good cause to fear disparate-impact liability because the examinations were not shown to be job-related and consistent with business necessity.46
Ginsburg argued that the City reasonably concluded the tests were vulnerable to challenge because they overemphasized written components and failed to account for cultural differences in job performance, consistent with Griggs v. Duke Power Co.47
She maintained that discarding the results was a permissible effort to comply with Title VII's mandate to eliminate unnecessary barriers to minority advancement.48
Ginsburg criticized the majority's strong-basis-in-evidence standard as a new and unwarranted limitation that will make it difficult for employers to take voluntary action to avoid disparate-impact liability.49
Whether the City had a strong basis in evidence to believe it would face disparate-impact liability under Title VII if it certified the examination results?50
Under the strong-basis-in-evidence standard, an employer must demonstrate a strong basis in evidence either that the employment practice was not job related and consistent with business necessity or that an equally valid, less-discriminatory alternative existed that the employer refused to adopt.51
A prima facie statistical disparity alone is insufficient.52
The employer must show that the tests would not survive scrutiny under the disparate-impact provision.53
No. Although the pass rates created a prima facie case of disparate impact, the City lacked a strong basis in evidence that the examinations were not job related.54
IOS had performed job analyses oversampling minorities, compiled approved source materials, and subjected the tests to third-party review confirming their relevance to lieutenant and captain duties.55
The City also lacked evidence of an equally valid, less-discriminatory alternative.56
Testimony regarding assessment centers and different weighting was contradicted by other record evidence showing such methods were not available or equally valid for the 2003 examinations.57
The City had not requested the technical validation report from IOS.58
Fear of litigation alone cannot supply the required strong basis.59
The City's decision to certify captain results but not lieutenant results further undermined any claim of consistent concern about disparate-impact liability.60
The City did not have a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results.61
Related opinions on this issue
Joined by Justices Stevens, Souter, And Breyer
Justice Ginsburg dissented from the majority's application of the strong-basis-in-evidence standard.62
She argued that the City reasonably concluded the tests were vulnerable to challenge because they overemphasized written components and failed to account for cultural differences in job performance, consistent with Griggs v. Duke Power Co.63
Ginsburg maintained that the majority's new standard will encourage employers to certify test results that have a disparate impact even when the employer has reason to believe the test is not job-related.64
She would have affirmed the judgment of the Court of Appeals.65