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The Employee's Perspective

By Sarah C. Crawford

In her dissenting opinion in Ricci v. DeStefano, Justice Ruth Bader Ginsburg posited that the disparate impact theory has been central to effective enforcement of Title VII for decades. Indeed, disparate impact cases have successfully challenged unnecessary barriers to equal employment opportunity for decades. Disparate impact theory has prompted employers to develop selection processes that are both fair and effective.

On June 29, 2009, the Court took a step backwards on the path toward fulfilling Title VII's promise of equal opportunity. In another 5-4 decision, the Court ruled that the City of New Haven, CT, violated Title VII when it failed to promote firefighters on the basis of tests that screened out nearly all of the minority firefighters who took them. The Court rejected evidence of flaws in the tests and alternative testing procedures that would be expected to lessen the disparate impact. With this ruling, the Court provided a powerful disincentive for employers to seek less discriminatory alternatives when a screening device proves to screen out members of a protected class disproportionately.

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