Yesterday’s Supreme Court ruling in favor of white firefighters will undoubtedly leave employers confused. The case out of New Haven, Conn. claims the white firefighters were denied promotions unfairly because of their race. To add to the confusion, the 5-4 ruling reverses a decision that Supreme Court nominee Sonia Sotomayor endorsed as a federal appeals judge.
Emily: What sort of implications will today’s ruling have on employers?
LaFratta: This opinion will have significant implications for employers. First, the court’s holding makes it more difficult for Plaintiffs to prevail on disparate impact claims. Second, the court held that the fear of litigation by one group of employees is not a valid reason to discriminate against another group of employees. This will impact employers’ handling of employment litigation threats, as they will have to be careful to resolve such threats in a manner that does not adversely affect employees in other classes. Third, the opinion demonstrates the inherent difficulties with employment examinations, as in this case the employer was in a no-win situation, facing a lawsuit regardless of how it resolved the examination controversy.
Emily: Will these implications be felt in only one sector or throughout all industries?
LaFratta: The decision will directly affect employers who utilize employment examinations, and thus primarily public sector employers. Such employers will have to be careful to construct valid tests, as they may be exposed to lawsuits depending on the results of the test. Also, employers faced with questionable test results will not simply be able to scrap the test results, as doing so would open them up to lawsuits by the successful test-takers. With respect to the court’s prohibition on using threatened litigation as a basis for discrimination, that would apply to all employers.
Emily: Would you say that this decision will change the landscape of civil rights law forever?
LaFratta: I wouldn’t go that far. Disparate impact claims (such as the one here) are not nearly as common as disparate treatment claims, so the impact of this lawsuit, although significant, is not that far reaching. I think the decision will have a bigger impact on how employers handle the use of employment tests and respond to litigation threats, which are more internal corporate matters. However, as it is a Supreme Court decision, it is “the law” until the Supreme Court reverses it or Congress tries to amend Title VII in a way to reverse it.
Thanks to Mr. LaFratta for shedding some light on the topic.
To test or not to test, employers must decide carefully.