This June, in Ricci v. DeStefano, the Supreme Court held that the city of New Haven discriminated against white firefighters when it rejected the results of a promotion exam that eliminated almost all of the minority candidates. Frank Ricci and other white firefighters, as well as one Latino, claimed that the city intentionally discriminated against them on the basis of race, in violation of Title VII of the Civil Rights Act, by rejecting the exam simply because too many of the highest scorers were white and thus denying them promotions.* New Haven’s defense was that it rejected the exam because using it would have violated another part of Title VII that prohibits tests that have a disparate impact on minorities—meaning any test that needlessly screens out a disproportionate number of minorities. During oral argument, Justice Souter worried that Ricci’s lawsuit put New Haven in a “damned if you do, damned if you don’t situation”: liable for disparate-impact discrimination against blacks if it used the test and liable for intentional discrimination against whites if it didn’t use it.
Sure enough, last week, just as New Haven prepared to promote a group consisting almost entirely of white fire captains and lieutenants based on the exam results, a black New Haven firefighter, Michael Briscoe, filed a disparate-impact lawsuit against the city.