The Dead End of ‘Disparate Impact’: Redefining Affirmative Action
In 2003, the city of New Haven, Connecticut, sought to fill 15 vacancies for supervisory positions in its fire department by promoting from within. As required by law, the city administered to applicants a written and oral civil-service exam created with the help of personnel experts and fire-department officials. In all, 118 firefighters took the exam; when the test scores came back, it turned out that white applicants had passed at roughly twice the rate of black applicants. If the fire department had followed the city’s civil-service placement rules, no black applicants, and at most two Hispanic applicants, would have been promoted to fill the 15 vacancies.
To avoid this outcome, the city eventually threw out the exam results. Officials were concerned, in part, that the promotions mandated by the test results would prompt a lawsuit by minority applicants. But some of the applicants who had passed the exam protested the city’s decision, claiming they were being denied a fair chance at a promotion for which they had proved themselves qualified. Seventeen successful white test-takers and one successful Hispanic test-taker sued to have the results reinstated; in 2009, their lawsuit reached the United States Supreme Court as Ricci v. DeStefano.
At the heart of the Ricci case was the doctrine of disparate-impact discrimination, which the Supreme Court first articulated in its 1971 decision in Griggs v. Duke Power Company. At issue in Griggs was the requirement that employees hired into service jobs at the power company’s facilities had to possess a high-school diploma and achieve a minimum score on an IQ test. The plaintiffs argued that these rules disqualified too many black job applicants, thereby violating Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.