On Wednesday, the U. S. Supreme Court heard oral arguments in a case brought by 18 firefighters, 17 white and one Hispanic, who claim they were denied promotions on the basis of their race after the City of New Haven, Connecticut, threw out the results of a promotional exam on the grounds that the exam had a disproportionately negative impact on African-American firefighters.  The City Charter mandated that vacancies were to be filled by the highest-scoring applicants on the tests, but once the tests were scored, the City refused to certify the results when it became apparent that no African-Americans and only two Hispanics would be eligible for promotion into the 15 vacant positions.

Ricci v. DeStefano presents the Court with the opportunity to resolve an apparent tension within Title VII between the statute’s prohibition against practices that, while race-neutral on the surface, disparately impact a racial group and its prohibition against disparate treatment of minorities, e.g., making employment decisions based on race.  Justice Souter summed up the City’s dilemma and the conflict between the statute’s provisions as follows:  “[If] they certify the results [of the test] and go forward with it, they are inevitably facing a disparate impact lawsuit.  If they stop and say . . . we’re starting down the road toward a disparate impact lawsuit and, indeed, there may be something wrong here, they are inevitably facing a disparate treatment suit.”  Following oral argument, it is very much unclear how the Supreme Court will rule.  One thing is clear, however:  Ricci v. DeStefano gives the Court an opportunity to deliver a ruling of significant interest to employers and to draw a line between what Title VII necessarily requires – an awareness of race sufficient to avoid disparate impact – and what it prohibits – the use of race as a basis for employment decisions.