The U.S. Supreme Court today agreed to consider the case of New Haven, Connecticut firefighers who alleged reverse discrimination when the city denied them promotions despite high test scores, ostensibly out of fears that the test may have discriminated against minority applicants.  

I’ve covered the case, Ricci v. DeStefano, previously here and here, and will post more about it in the upcoming days. But you may be wondering what the specific question is that the court will consider.

The court accepted the case to decide the following question:

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

The case challenges the very notion of an employer who, ostensibly, is trying to do the "right" thing by preventing a claim of race discrimination from occurring, but by doing so, impacts white employees.  Workplace Prof blog recently discussed this conundrum that arises in this situation:

This case is a very important one, but a really difficult one, too, that goes to the heart of our notions of discrimination and the meaning of Title VII. Essentially, this brings up the usual debate about whether affirmative action is race discrimination, and if so, whether it should be illegal. But this case adds a wrinkle that brings the whole system of Title VII into doubt. Here, the City argues that it believed in good faith that the promotion process would violate Title VII by creating a disparate impact. The plaintiffs dispute that, saying that the City was motivated by politics and race, but they further argue that even if the City did in good faith believe that it was avoiding a disparate impact claim, that should be no defense to a disparate treatment claim.

So, is a decision not to create a disparate impact really race discrimination in disguise? I think the answer to that is complicated. Every decision not to use a particular criteria because it has an impact on a particular group is necessarily considering that group’s status. So in one sense, yes, there is a consideration of status in there somewhere. On the other hand, does that mean that employers must continue to use criteria that they know have a disparate impact unless that use is challenged and a court validates some other criterion? That seems an odd result.

It’s much too early to predict the outcome; we’ll have to first read the tea leaves at oral argument. But regardless, I would expect a deeply divided decision by the Court. After all, this issue caused severe fractures in the Second Circuit when it was originally decided.

The firefighters’ brief is due February 19, 2009 and the City’s response is due March 18, 2009. A decision is expected before the end of the Court’s term in June.

(H/T Workplace Prof, SCOTUSBlog)