Expressly, race-based employment decisions are illegal, the Supreme Court ruled late last month in a closely watched discrimination case brought by white and Hispanic firefighters.

The court also said in the ruling that fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed examinations and qualified for promotions.

The court's 5-4 decision in Ricci v. DeStefano, No. 07-1428, dealt with a lawsuit filed by white and Hispanic firefighters in New Haven, Conn. They brought their action after they were denied promotion because no blacks qualified for promotion under the test results.

A ruling denying the promotions was made by the 2nd U.S. Circuit Court of Appeals, joined in by President Obama's Supreme Court nominee, Judge Sonia Sotomayor.

The ruling dealt with the question of how the Civil Rights Act deals with the issue of disparate treatment compared with disparate impact.

In this case, the majority ruled there had to be a substantial reason for New Haven to throw out the test results, and that New Haven's reason that not enough minorities would be promoted was too weak.

"Fear of litigation alone cannot justify the City's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," the majority said.

"Discarding the test results was impermissible under Title VII [of the Civil Rights Act], and summary judgment is appropriate for petitioners on their disparate-treatment claim," the majority said.

If, after it certifies the test results, "the City faces a disparate-impact suit, then in light of today's holding the City can 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."

Keith Gutstein, of Kaufman Dolowhich Voluck and Gonzo in Woodbury, N.Y., said the decision will affect private employment practice as well as municipal hiring.

His concern, he said, is that it further stresses employer decision-making during periods of economic stress when layoffs are necessary.

"This creates a 'pick your poison' situation for employers and practitioners," he said.

"If layoffs are necessary, you advise employers to pick a 'facially neutral' policy that doesn't affect one particular class or another," he said.

"It further stresses the concern an employer has in dealing with disparate impact, because it can create a situation where your action can create a potential disparate treatment claim as well," he noted.

Special Reports /

Supreme Court Rules For White Firemen In Promotion Bias Case

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