Why the Firefighter Decision Is Good for Employment Lawyers
More litigation is likely to follow Monday’s U.S. Supreme Court decision on behalf of white firefighters who sued over a decision to throw out a promotional exam.
The decision in Ricci v. DeStefano “left things as muddled as ever for the nation’s employers,” the New York Times reports. The court said the city of New Haven, Conn., erred when it threw out a fire department promotional exam because no blacks got top scores.
Lars Etzkorn, a program director with the National League of Cities, told the Times that courts will have to sort out the unanswered questions. “We don’t see clear, bright-line guidance here,” he said. “This is going to be good for employment lawyers.”
A fear of a disparate-impact lawsuit is not enough to justify a race-based decision to toss a promotional exam, Justice Anthony M. Kennedy wrote for the majority in the 5-4 Ricci decision. Instead, Title VII requires employers in such cases to demonstrate “a strong basis in evidence” that they would have been liable for disparate-impact discrimination if they didn’t act.
SCOTUSblog writes that the decision has brought new standards into the “Title VII legal equation” that are not very specific or well-defined.
Katharine Parker, a lawyer with Proskauer Rose who is chairwoman of the Labor and Employment Committee of the New York City Bar Association, told the Times the decision gives employers less flexibility to change the job selection requirements after they are established. “As a result, employers will want to try to establish bulletproof selection criteria,” she said.
The decision may spur some employers to abandon written tests and opt instead for practical assessments of employee performance, lawyers told the Times.
