Obduskey v. McCarthy & Holthus, LLP Brief Amicus Curiae

    (Bench Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been 
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

RICCI ET AL. V. DeSTEFANO ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE SECOND CIRCUIT

No. 07-1428. Argued April 22, 2009—Decided June 29, 2009*

New Haven, Conn. (City), uses objective examinations to identify those 
firefighters best qualified for promotion. When the results of such an 
exam to fill vacant lieutenant and captain positions showed that 
white candidates had outperformed minority candidates, a rancorous 
public debate ensued. Confronted with arguments both for and 
against certifying the test results—and threats of a lawsuit either 
way—the City threw out the results based on the statistical racial 
disparity. Petitioners, white and Hispanic firefighters who passed 
the exams but were denied a chance at promotions by the City’s re­
fusal to certify the test results, sued the City and respondent officials, 
alleging that discarding the test results discriminated against them 
based on their race in violation of, inter alia, Title VII of the Civil 
Rights Act of 1964. The defendants responded that had they certified 
the test results, they could have faced Title VII liability for adopting 
a practice having a disparate impact on minority firefighters. The 
District Court granted summary judgment for the defendants, and 
the Second Circuit affirmed.

Held: The City’s action in discarding the tests violated Title VII. 
Pp. 16-34.

(a) Title VII prohibits intentional acts of employment discrimina­
tion based on race, color, religion, sex, and national origin, 42 U. S. C. 
§2000e-2(a)(l) (disparate treatment), as well as policies or practices 
that are not intended to discriminate but in fact have a dispropor­
tionately adverse effect on minorities, §2000e-2(k)(l)(A)(i) (disparate 
impact). Once a plaintiff has established a prima facie case of dispa-

* Together with No. 08-328, Ricci et al. v. DeStefano etal., also on 
certiorari to the same court.



2 RICCI v. DeSTEFANO

Syllabus

rate impact, the employer may defend by demonstrating that its 
policy or practice is “job related for the position in question and con­
sistent with business necessity.” Ibid. If the employer meets that
burden, the plaintiff may still succeed by showing that the employer 
refuses to adopt an available alternative practice that has less dispa­
rate impact and serves the employer’s legitimate needs. §§2000e- 
2(k)(l)(A)(ii) and (C). Pp. 17-19.

(b) Under Title VII, before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or remedying an 
unintentional, disparate impact, the employer must have a strong 
basis in evidence to believe it will be subject to disparate-impact li­
ability if it fails to take the race-conscious, discriminatory action. 
The Court’s analysis begins with the premise that the City’s actions 
would violate Title VII’s disparate-treatment prohibition absent some 
valid defense. All the evidence demonstrates that the City rejected 
the test results because the higher scoring candidates were white. 
Without some other justification, this express, race-based decision­
making is prohibited. The question, therefore, is whether the pur­
pose to avoid disparate-impact liability excuses what otherwise would 
be prohibited disparate-treatment discrimination. The Court has 
considered cases similar to the present litigation, but in the context 
of the Fourteenth Amendment’s Equal Protection Clause. Such cases 
can provide helpful guidance in this statutory context. See Watson v.
Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the
Court held that certain government actions to remedy past racial dis­
crimination—actions that are themselves based on race—are consti­
tutional only where there is a “strong basis in evidence” that the re­
medial actions were necessary. Richmond v. J. A. Croson Co., 488
U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267,
277. In announcing the strong-basis-in-evidence standard, the Wy­
gant plurality recognized the tension between eliminating segrega­
tion and discrimination on the one hand and doing away with all gov- 
ernmentally imposed discrimination based on race on the other. 476
U. S., at 277. It reasoned that “[e]videntiary support for the conclu­
sion that remedial action is warranted becomes crucial when the re­
medial program is challenged in court by nonminority employees.” 
Ibid. The same interests are at work in the interplay between Title
VTI’s disparate-treatment and disparate-impact provisions. Apply­
ing the strong-basis-in-evidence standard to Title VII gives effect to 
both provisions, allowing violations of one in the name of compliance 
with the other only in certain, narrow circumstances. It also allows 
the disparate-impact prohibition to work in a manner that is consis­
tent with other Title VII provisions, including the prohibition on ad­
justing employment-related test scores based on race, see §2000e-



Cite as: 557 U. S .____(2009) 3

Syllabus

2(Z), and the section that expressly protects bona fide promotional ex­
ams, see §2000e-2(h). Thus, the Court adopts the strong-basis-in­
evidence standard as a matter of statutory construction in order to 
resolve any conflict between Title VIPs disparate-treatment and dis­
parate-impact provisions. Pp. 19-26.

(c) The City’s race-based rejection of the test results cannot satisfy 
the strong-basis-in-evidence standard. Pp. 26-34.

(i) The racial adverse impact in this litigation was significant, 
and petitioners do not dispute that the City was faced with a prima 
facie case of disparate-impact liability. The problem for respondents 
is that such a prima facie case—essentially, a threshold showing of a 
significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 
446, and nothing more—is far from a strong basis in evidence that 
the City would have been liable under Title VII had it certified the 
test results. That is because the City could be liable for disparate- 
impact discrimination only if the exams at issue were not job related 
and consistent with business necessity, or if there existed an equally 
valid, less discriminatory alternative that served the City’s needs but 
that the City refused to adopt. §§2000e-2(k)(l)(A), (C). Based on the 
record the parties developed through discovery, there is no substan­
tial basis in evidence that the test was deficient in either respect. 
Pp. 26-28.

(ii) The City’s assertions that the exams at issue were not job re­
lated and consistent with business necessity are blatantly contra­
dicted by the record, which demonstrates the detailed steps taken to 
develop and administer the tests and the painstaking analyses of the 
questions asked to assure their relevance to the captain and lieuten­
ant positions. The testimony also shows that complaints that certain 
examination questions were contradictory or did not specifically ap­
ply to firefighting practices in the City were fully addressed, and that 
the City turned a blind eye to evidence supporting the exams’ valid­
ity. Pp. 28-29.

(iii) Respondents also lack a strong basis in evidence showing an 
equally valid, less discriminatory testing alternative that the City, by 
certifying the test results, would necessarily have refused to adopt. 
Respondents’ three arguments to the contrary all fail. First, respon­
dents refer to testimony that a different composite-score calculation 
would have allowed the City to consider black candidates for then- 
open positions, but they have produced no evidence to show that the 
candidate weighting actually used was indeed arbitrary, or that the 
different weighting would be an equally valid way to determine 
whether candidates are qualified for promotions. Second, respon­
dents argue that the City could have adopted a different interpreta­
tion of its charter provision limiting promotions to the highest scoring



4 RICCI v. DeSTEFANO

Syllabus

applicants, and that the interpretation would have produced less dis­
criminatory results; but respondents’ approach would have violated 
Title VII's prohibition of race-based adjustment of test results, 
§2000e-2(Z). Third, testimony asserting that the use of an assess­
ment center to evaluate candidates’ behavior in typical job tasks 
would have had less adverse impact than written exams does not aid 
respondents, as it is contradicted by other statements in the record 
indicating that the City could not have used assessment centers for 
the exams at issue. Especially when it is noted that the strong-basis- 
in-evidence standard applies to this case, respondents cannot create a 
genuine issue of fact based on a few stray (and contradictory) state­
ments in the record. Pp. 29-33.

(iv) Fear of litigation alone cannot justify the City’s reliance on 
race to the detriment of individuals who passed the examinations and 
qualified for promotions. Discarding the test results was impermis­
sible under Title VII, and summary judgment is appropriate for peti­
tioners on their disparate-treatment claim. If, after it certifies the 
test results, the City faces a disparate-impact suit, then in light of 
today’s holding the City can avoid disparate-impact liability based on 
the strong basis in evidence that, had it not certified the results, it 
would have been subject to disparate-treatment liability. Pp. 33-34. 

530 F. 3d 87, reversed and remanded.

K e n n e d y , J., delivered the opinion of the Court, in which R o b e r t s , 
C.J., and SCALIA, T h o m a s , and A l it o , JJ., joined. S c a l ia , J., filed a 
concurring opinion. A lito , J., filed a concurring opinion, in which 
SCALIA and T h o m a s , JJ., joined. G in sb u r G, J., filed a dissenting opin­
ion, in which STEVENS, SOUTER, and BREYER, JJ., joined.



Cite as: 557 U. S .____(2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

Nos. 07-1428 and 08-328

FRANK RICCI, ET AL., PETITIONERS
07- 1428 v.

JOHN DeSTEFANO ET AL.

FRANK RICCI, ET AL., PETITIONERS
08- 328 v.

JOHN DeSTEFANO ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SECOND CIRCUIT

[June 29, 2009]

JUSTICE Kennedy  delivered the opinion of the Court.
In the fire department of New Haven, Connecticut—as 

in emergency-service agencies throughout the Nation— 
firefighters prize their promotion to and within the officer 
ranks. An agency’s officers command respect within the 
department and in the whole community; and, of course, 
added responsibilities command increased salary and 
benefits. Aware of the intense competition for promotions, 
New Haven, like many cities, relies on objective examina­
tions to identify the best qualified candidates.

In 2003, 118 New Haven firefighters took examinations 
to qualify for promotion to the rank of lieutenant or cap­
tain. Promotion examinations in New Haven (or City) 
were infrequent, so the stakes were high. The results 
would determine which firefighters would be considered 
for promotions during the next two years, and the order in 
which they would be considered. Many firefighters stud-



2 RICCI v. DeSTEFANO

Opinion of the Court

ied for months, at considerable personal and financial cost.
When the examination results showed that white candi­

dates had outperformed minority candidates, the mayor 
and other local politicians opened a public debate that 
turned rancorous. Some firefighters argued the tests 
should be discarded because the results showed the tests 
to be discriminatory. They threatened a discrimination 
lawsuit if the City made promotions based on the tests. 
Other firefighters said the exams were neutral and fair. 
And they, in turn, threatened a discrimination lawsuit if 
the City, relying on the statistical racial disparity, ignored 
the test results and denied promotions to the candidates 
who had performed well. In the end the City took the side 
of those who protested the test results. It threw out the 
examinations.

Certain white and Hispanic firefighters who likely 
would have been promoted based on their good test per­
formance sued the City and some of its officials. Theirs is 
the suit now before us. The suit alleges that, by discard­
ing the test results, the City and the named officials dis­
criminated against the plaintiffs based on their race, in 
violation of both Title VII of the Civil Rights Act of 1964, 
78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and 
the Equal Protection Clause of the Fourteenth Amend­
ment. The City and the officials defended their actions, 
arguing that if they had certified the results, they could 
have faced liability under Title VII for adopting a practice 
that had a disparate impact on the minority firefighters. 
The District Court granted summary judgment for the 
defendants, and the Court of Appeals affirmed.

We conclude that race-based action like the City’s in this 
case is impermissible under Title VII unless the employer 
can demonstrate a strong basis in evidence that, had it not 
taken the action, it would have been liable under the 
disparate-impact statute. The respondents, we further 
•determine, cannot meet that threshold standard. As a



Cite as: 557 U. S .____(2009) 3

Opinion of the Court

result, the City’s action in discarding the tests was a 
violation of Title VII. In light of our ruling under the 
statutes, we need not reach the question whether respon­
dents’ actions may have violated the Equal Protection 
Clause.

I
This litigation comes to us after the parties’ cross­

motions for summary judgment, so we set out the facts in 
some detail. As the District Court noted, although “the 
parties strenuously dispute the relevance and legal import 
of, and inferences to be drawn from, many aspects of this 
case, the underlying facts are largely undisputed.” 554 
F. Supp. 2d 142, 145 (Conn. 2006).

A
When the City of New Haven undertook to fill vacant 

lieutenant and captain positions in its fire department 
(Department), the promotion and hiring process was gov­
erned by the city charter, in addition to federal and state 
law. The charter establishes a merit system. That system 
requires the City to fill vacancies in the classified civil- 
service ranks with the most qualified individuals, as de­
termined by job-related examinations. After each exami­
nation, the New Haven Civil Service Board (CSB) certifies 
a ranked fist of applicants who passed the test. Under the 
charter’s “rule of three,” the relevant hiring authority 
must fill each vacancy by choosing one candidate from the 
top three scorers on the fist. Certified promotional fists 
remain valid for two years.

The City’s contract with the New Haven firefighters’ 
union specifies additional requirements for the promotion 
process. Under the contract, applicants for lieutenant and 
captain positions were to be screened using written and 
oral examinations, with the written exam accounting for 
60 percent and the oral exam 40 percent of an applicant’s



4 RICCI v. DeSTEFANO

Opinion of the Court

total score. To sit for the examinations, candidates for 
lieutenant needed 30 months’ experience in the Depart­
ment, a high-school diploma, and certain vocational train­
ing courses. Candidates for captain needed one year’s 
service as a lieutenant in the Department, a high-school 
diploma, and certain vocational training courses.

After reviewing bids from various consultants, the City 
hired Industrial/Organizational Solutions, Inc. (IOS) to 
develop and administer the examinations, at a cost to the 
City of $100,000. IOS is an Illinois company that special­
izes in designing entry-level and promotional examina­
tions for fire and police departments. In order to fit the 
examinations to the New Haven Department, IOS began 
the test-design process by performing job analyses to 
identify the tasks, knowledge, skills, and abilities that are 
essential for the lieutenant and captain positions. IOS 
representatives interviewed incumbent captains and 
lieutenants and their supervisors. They rode with and 
observed other on-duty officers. Using information from 
those interviews and ride-alongs, IOS wrote job-analysis 
questionnaires and administered them to most of the 
incumbent battalion chiefs, captains, and lieutenants in 
the Department. At every stage of the job analyses, IOS, 
by deliberate choice, oversampled minority firefighters to 
ensure that the results—which IOS would use to develop 
the examinations—would not unintentionally favor white 
candidates.

With the job-analysis information in hand, IOS devel­
oped the written examinations to measure the candidates’ 
job-related knowledge. For each test, IOS compiled a fist 
of training manuals, Department procedures, and other 
materials to use as sources for the test questions. IOS 
presented the proposed sources to the New Haven fire 
chief and assistant fire chief for their approval. Then, 
using the approved sources, IOS drafted a multiple-choice 
test for each position. Each test had 100 questions, as



Cite as: 557 U. S .____(2009) 5

Opinion of the Court

required by CSB rules, and was written below a 10th- 
grade reading level. After IOS prepared the tests, the City 
opened a 3-month study period. It gave candidates a list 
that identified the source material for the questions, in­
cluding the specific chapters from which the questions 
were taken.

IOS developed the oral examinations as well. These 
concentrated on job skills and abilities. Using the job- 
analysis information, IOS wrote hypothetical situations to 
test incident-command skills, firefighting tactics, interper­
sonal skills, leadership, and management ability, among 
other things. Candidates would be presented with these 
hypotheticals and asked to respond before a panel of three 
assessors.

IOS assembled a pool of 30 assessors who were superior 
in rank to the positions being tested. At the City’s insis­
tence (because of controversy surrounding previous ex­
aminations), all the assessors came from outside Connecti­
cut. IOS submitted the assessors’ resumes to City officials 
for approval. They were battalion chiefs, assistant chiefs, 
and chiefs from departments of similar sizes to New Ha­
ven’s throughout the country. Sixty-six percent of the 
panelists were minorities, and each of the nine three- 
member assessment panels contained two minority mem­
bers. IOS trained the panelists for several hours on the 
day before it administered the examinations, teaching 
them how to score the candidates’ responses consistently 
using checklists of desired criteria.

Candidates took the examinations in November and 
December 2003. Seventy-seven candidates completed the 
lieutenant examination—43 whites, 19 blacks, and 15 
Hispanics. Of those, 34 candidates passed—25 whites, 6 
blacks, and 3 Hispanics. 554 F. Supp. 2d, at 145. Eight 
lieutenant positions were vacant at the time of the exami­
nation. As the rule of three operated, this meant that the 
top 10 candidates were eligible for an immediate promo-



6 RICCI v. DeSTEFANO

Opinion of the Court

tion to lieutenant. All 10 were white. Ibid. Subsequent 
vacancies would have allowed at least 3 black candidates 
to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examina­
tion—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 
candidates passed— 16 whites, 3 blacks, and 3 Hispanics. 
Ibid. Seven captain positions were vacant at the time of 
the examination. Under the rule of three, 9 candidates 
were eligible for an immediate promotion to captain—7 
whites and 2 Hispanics. Ibid.

B
The City’s contract with IOS contemplated that, after 

the examinations, IOS would prepare a technical report 
that described the examination processes and methodolo­
gies and analyzed the results. But in January 2004, 
rather than requesting the technical report, City officials, 
including the City’s counsel, Thomas Ude, convened a 
meeting with IOS Vice President Chad Legel. (Legel was 
the leader of the IOS team that developed and adminis­
tered the tests.) Based on the test results, the City offi­
cials expressed concern that the tests had discriminated 
against minority candidates. Legel defended the examina­
tions’ validity, stating that any numerical disparity be­
tween white and minority candidates was likely due to 
various external factors and was in line with results of the 
Department’s previous promotional examinations.

Several days after the meeting, Ude sent a letter to the 
CSB purporting to outline its duties with respect to the 
examination results. Ude stated that under federal law, 
“a statistical demonstration of disparate impact,” standing 
alone, “constitutes a sufficiently serious claim of racial 
discrimination to serve as a predicate for employer- 
initiated, voluntar[y] remedies—even . . . race-conscious 
remedies.” App. to Pet. for Cert, in No. 07-1428, p. 443a; 
see also 554 F. Supp. 2d, at 145 (issue of disparate impact



Cite as: 557 U. S .____(2009) 7

Opinion of the Court

“appears to have been raised by . . . Ude”).
1

The CSB first met to consider certifying the results on 
January 22, 2004. Tina Burgett, director of the City’s 
Department of Human Resources, opened the meeting by 
telling the CSB that “there is a significant disparate im­
pact on these two exams.” App. to Pet. for Cert, in No. 07- 
1428, at 466a. She distributed fists showing the candi­
dates’ races and scores (written, oral, and composite) but 
not their names. Ude also described the test results as 
reflecting “a very significant disparate impact,” id,., at 
477a, and he outlined possible grounds for the CSB’s 
refusing to certify the results.

Although they did not know whether they had passed or 
failed, some firefighter-candidates spoke at the first CSB 
meeting in favor of certifying the test results. Michael 
Blatchley stated that “[e]very one” of the questions on the 
written examination “came from the [study] material. . . . 
[I]f you read the materials and you studied the material, 
you would have done well on the test.” App. in No. 06- 
4996-cv (CA2), pp. A772-A773 (hereinafter CA2 App.). 
Frank Ricci stated that the test questions were based on 
the Department’s own rules and procedures and on “na­
tionally recognized” materials that represented the “ac­
cepted standard[s]” for firefighting. Id., at A785-A786. 
Ricci stated that he had “several learning disabilities,” 
including dyslexia; that he had spent more than $1,000 to 
purchase the materials and pay his neighbor to read them 
on tape so he could “give it [his] best shot”; and that he 
had studied “8 to 13 hours a day to prepare” for the test. 
Id., at A786, A789. “I don’t even know if I made it,” Ricci 
told the CSB, “[b]ut the people who passed should be 
promoted. When your fife’s on the fine, second best may 
not be good enough.” Id., at A787-A788.

Other firefighters spoke against certifying the test



8 RICCI v. DeSTEFANO

Opinion of the Court

results. They described the test questions as outdated or 
not relevant to firefighting practices in New Haven. Gary 
Tinney stated that source materials “came out of New 
York. . . . Their makeup of their city and everything is 
totally different than ours.” Id., at A774-A775; see also 
id., at A779, A780-A781. And they criticized the test 
materials, a full set of which cost about $500, for being too 
expensive and too long.

2
At a second CSB meeting, on February 5, the president 

of the New Haven firefighters’ union asked the CSB to 
perform a validation study to determine whether the tests 
were job-related. Petitioners’ counsel in this action argued 
that the CSB should certify the results. A representative 
of the International Association of Black Professional 
Firefighters, Donald Day from neighboring Bridgeport, 
Connecticut, “beseech[ed]” the CSB “to throw away that 
test,” which he described as “inherently unfair” because of 
the racial distribution of the results. Id., at A830-A831. 
Another Bridgeport-based representative of the associa­
tion, Ronald Mackey, stated that a validation study was 
necessary. He suggested that the City could “adjust” the 
test results to “meet the criteria of having a certain 
amount of minorities get elevated to the rank of Lieuten­
ant and Captain.” Id., at A838. At the end of this meet­
ing, the CSB members agreed to ask IOS to send a repre­
sentative to explain how it had developed and 
administered the examinations. They also discussed 
asking a panel of experts to review the examinations and 
advise the CSB whether to certify the results.

3
At a third meeting, on February 11, Legel addressed the 

CSB on behalf of IOS. Legel stated that IOS had previ­
ously prepared entry-level firefighter examinations for the



Cite as: 557 U. S .____(2009) 9

Opinion of the Court

City but not a promotional examination. He explained 
that IOS had developed examinations for departments in 
communities with demographics similar to New Haven’s, 
including Orange County, Florida; Lansing, Michigan; and 
San Jose, California.

Legel explained the exam-development process to the 
CSB. He began by describing the job analyses IOS per­
formed of the captain and lieutenant positions—the inter­
views, ride-alongs, and questionnaires IOS designed to 
“generate a list of tasks, knowledge, skills and abilities 
that are considered essential to performance” of the jobs. 
Id., at A931—A932. He outlined how IOS prepared the 
written and oral examinations, based on the job-analysis 
results, to test most heavily those qualities that the re­
sults indicated were “critica[l]” or “essentia[l].” Id., at 
A931. And he noted that IOS took the material for each 
test question directly from the approved source materials. 
Legel told the CSB that third-party reviewers had scruti­
nized the examinations to ensure that the written test was 
drawn from the source material and that the oral test 
accurately tested real-world situations that captains and 
lieutenants would face. Legel confirmed that IOS had 
selected oral-examination panelists so that each three- 
member assessment panel included one white, one black, 
and one Hispanic member.

Near the end of his remarks, Legel “implor[ed] anyone 
that had . . . concerns to review the content of the exam. 
In my professional opinion, it’s facially neutral. There’s 
nothing in those examinations . . . that should cause 
somebody to think that one group would perform differ­
ently than another group.” Id., at A961.

4
At the next meeting, on March 11, the CSB heard from 

three witnesses it had selected to “tell us a little bit about 
their views of the testing, the process, [and] the methodol-



10 RICCI v. DeSTEFANO

Opinion of the Court

ogy.” Id., at A1020. The first, Christopher Hornick, spoke 
to the CSB by telephone. Hornick is an indus- 
trial/organizational psychologist from Texas who operates 
a consulting business that “directly]” competes with IOS. 
Id., at A1029. Hornick, who had not “studied] the test at 
length or in detail” and had not “seen the job analysis 
data,” told the CSB that the scores indicated a “relatively 
high adverse impact.” Id., at A1028, A1030, A1043. He 
stated that “[njormally, whites outperform ethnic minori­
ties on the majority of standardized testing procedures,” 
but that he was “a little surprised” by the disparity in the 
candidates’ scores—although “[s]ome of it is fairly typical 
of what we’ve seen in other areas of the countr[y] and 
other tests.” Id., at A1028-A1029. Hornick stated that 
the “adverse impact on the written exam was somewhat 
higher but generally in the range that we’ve seen profes­
sionally.” Id., at A1030-A1031.

When asked to explain the New Haven test results, 
Hornick opined in the telephone conversation that the 
collective-bargaining agreement’s requirement of using 
written and oral examinations with a 60/40 composite 
score might account for the statistical disparity. He also 
stated that “[b]y not having anyone from within the 
[Department review” the tests before they were adminis­
tered—a limitation the City had imposed to protect the 
security of the exam questions—“you inevitably get things 
in there” that are based on the source materials but are 
not relevant to New Haven. Id., at A1034-A1035. Hor­
nick suggested that testing candidates at an “assessment 
center” rather than using written and oral examinations 
“might serve [the City’s] needs better.” Id., at A1039- 
A1040. Hornick stated that assessment centers, where 
candidates face real-world situations and respond just as 
they would in the field, allow candidates “to demonstrate 
how they would address a particular problem as opposed 
to just verbally saying it or identifying the correct option



Cite as: 557 U. S .____(2009) 11

Opinion of the Court 

on a written test.” Ibid.
Hornick made clear that he was “not suggesting that 

[IOS] somehow created a test that had adverse impacts 
that it should not have had.” Id., at A1038. He described 
the IOS examinations as “reasonably good test[s].” Id., at 
A1041. He stated that the CSB’s best option might be to 
“certify the list as it exists” and work to change the proc­
ess for future tests, including by “[Rewriting the Civil 
Service Rules.” Ibid. Hornick concluded his telephonic 
remarks by telling the CSB that “for the future,” his com­
pany “certainly would like to help you if we can.” Id., at 
A1046.

The second witness was Vincent Lewis, a fire program 
specialist for the Department of Homeland Security and a 
retired fire captain from Michigan. Lewis, who is black, 
had looked “extensively” at the lieutenant exam and “a 
little less extensively” at the captain exam. He stated that 
the candidates “should know that material.” Id., at 
A1048, A1052. In Lewis’s view, the “questions were rele­
vant for both exams,” and the New Haven candidates had 
an advantage because the study materials identified the 
particular book chapters from which the questions were 
taken. In other departments, by contrast, “you had to 
know basically the . . . entire book.” Id., at A1053. Lewis 
concluded that any disparate impact likely was due to a 
pattern that “usually whites outperform some of the mi­
norities on testing,” or that “more whites . . . take the 
exam.” Id., atA1054.

The final witness was Janet Helms, a professor at Bos­
ton College whose “primary area of expertise” is “not with 
firefighters per se” but in “race and culture as they influ­
ence performance on tests and other assessment proce­
dures.” Id., at A1060. Helms expressly declined the CSB’s 
offer to review the examinations. At the outset, she noted 
that “regardless of what kind of written test we give in 
this country . . .  we can just about predict how many peo-



12 RICCI v. DeSTEFANO

Opinion of the Court

pie will pass who are members of under-represented 
groups. And your data are not that inconsistent with 
what predictions would say were the case.” Id., at A1061. 
Helms nevertheless offered several “ideas about what 
might be possible factors” to explain statistical differences 
in the results. Id., at A1062. She concluded that because 
67 percent of the respondents to the job-analysis question­
naires were white, the test questions might have favored 
white candidates, because “most of the literature on fire­
fighters shows that the different groups perform the job 
differently.” Id., at A1063. Helms closed by stating that 
no matter what test the City had administered, it would 
have revealed “a disparity between blacks and whites, 
Hispanics and whites,” particularly on a written test. Id., 
at A1072.

5
At the final CSB meeting, on March 18, Ude (the City’s 

counsel) argued against certifying the examination re­
sults. Discussing the City’s obligations under federal law, 
Ude advised the CSB that a finding of adverse impact “is 
the beginning, not the end, of a review of testing proce­
dures” to determine whether they violated the disparate- 
impact provision of Title VII. Ude focused the CSB on 
determining “whether there are other ways to test for . . . 
those positions that are equally valid with less adverse 
impact.” Id., at A1101. Ude described Hornick as having 
said that the written examination “had one of the most 
severe adverse impacts that he had seen” and that “there 
are much better alternatives to identifying [firefighting] 
skills.” Ibid. Ude offered his “opinion that promotions . . . 
as a result of these tests would not be consistent with 
federal law, would not be consistent with the purposes of 
our Civil Service Rules or our Charter[,] nor is it in the 
best interests of the firefighters . . . who took the exams.” 
Id., at A1103-A1104. He stated that previous Department



Cite as: 557 U. S .____(2009) 13

Opinion of the Court

exams “have not had this kind of result,” and that previ­
ous results had not been “challenged as having adverse 
impact, whereas we are assured that these will be.” Id., at 
A1107, A1108.

CSB Chairman Segaloff asked Ude several questions 
about the Title VII disparate-impact standard.

“CHAIRPERSON SEGALOFF: [M]y understanding 
is the group . . . that is making to throw the exam out 
has the burden of showing that there is out there an 
exam that is reasonably probable or likely to have less 
of an adverse impact. It’s not our burden to show that 
there’s an exam out there that can be better. We’ve 
got an exam. We’ve got a result. . . .

“MR. UDE: Mr. Chair, I point out that Dr. Hornick 
said that. He said that there are other tests out there 
that would have less adverse impact and that [would] 
be more valid.

“CHAIRPERSON SEGALOFF: You think that’s 
enough for us to throw this test upside-down . . . be­
cause Dr. Hornick said it?

“MR. UDE: I think that by itself would be sufficient. 
Yes. I also would point out that . . .  it is the em­
ployer’s burden to justify the use of the examination.” 
Id., at A1108—A1109.

Karen DuBois-Walton, the City’s chief administrative 
officer, spoke on behalf of Mayor John DeStefano and 
argued against certifying the results. DuBois-Walton 
stated that the results, when considered under the rule of 
three and applied to then-existing captain and lieutenant 
vacancies, created a situation in which black and Hispanic 
candidates were disproportionately excluded from oppor­
tunity. DuBois-Walton also relied on Hornick’s testimony, 
asserting that Hornick “made it extremely clear that . . . 
there are more appropriate ways to assess one’s ability to 
serve” as a captain or lieutenant. Id., at A1120.



14 RICCI v. DeSTEFANO

Opinion of the Court

Burgett (the human resources director) asked the CSB 
to discard the examination results. She, too, relied on 
Hornick’s statement to show the existence of alternative 
testing methods, describing Hornick as having “started to 
point out that alternative testing does exist” and as having 
“begun to suggest that there are some different ways of 
doing written examinations.” Id., at A1125, A1128.

Other witnesses addressed the CSB. They included the 
president of the New Haven firefighters’ union, who sup­
ported certification. He reminded the CSB that Hornick 
“also concluded that the tests were reasonable and fair 
and under the current structure to certify them.” Id., at 
A1137. Firefighter Frank Ricci again argued for certifica­
tion; he stated that although “assessment centers in some 
cases show less adverse impact,” id., at A1140, they were 
not available alternatives for the current round of promo­
tions. It would take several years, Ricci explained, for the 
Department to develop an assessment-center protocol and 
the accompanying training materials. Id., at A1141. 
Lieutenant Matthew Marcarelh, who had taken the cap­
tain’s exam, spoke in favor of certification.

At the close of witness testimony, the CSB voted on a 
motion to certify the examinations. With one member 
recused, the CSB deadlocked 2 to 2, resulting in a decision 
not to certify the results. Explaining his vote to certify the 
results, Chairman Segaloff stated that “nobody convinced 
me that we can feel comfortable that, in fact, there’s some 
likelihood that there’s going to be an exam designed that’s 
going to be less discriminatory.” Id., at A1159-A1160.

C
The CSB’s decision not to certify the examination re­

sults led to this lawsuit. The plaintiffs—who are the 
petitioners here—are 17 white firefighters and 1 Hispanic 
firefighter who passed the examinations but were denied a 
chance at promotions when the CSB refused to certify the



Cite as: 557 U. S .____(2009) 15

Opinion of the Court

test results. They include the named plaintiff, Frank 
Ricci, who addressed the CSB at multiple meetings.

Petitioners sued the City, Mayor DeStefano, DuBois- 
Walton, Ude, Burgett, and the two CSB members who 
voted against certification. Petitioners also named as a 
defendant Boise Kimber, a New Haven resident who 
voiced strong opposition to certifying the results. Those 
individuals are respondents in this Court. Petitioners 
filed suit under Rev. Stat. §§1979 and 1980, 42 U. S. C. 
§§1983 and 1985, alleging that respondents, by arguing or 
voting against certifying the results, violated and con­
spired to violate the Equal Protection Clause of the Four­
teenth Amendment. Petitioners also filed timely charges 
of discrimination with the Equal Employment Opportu­
nity Commission (EEOC); upon the EEOC’s issuing right- 
to-sue letters, petitioners amended their complaint to 
assert that the City violated the disparate-treatment 
prohibition contained in Title VII of the Civil Rights Act of 
1964, as amended. See 42 U. S. C. §§2000e-2(a).

The parties filed cross-motions for summary judgment. 
Respondents asserted they had a good-faith belief that 
they would have violated the disparate-impact prohibition 
in Title VII, §2000e-2(k), had they certified the examina­
tion results. It follows, they maintained, that they cannot 
be held liable under Title VII’s disparate-treatment provi­
sion for attempting to comply with Title VH’s disparate- 
impact bar. Petitioners countered that respondents’ good- 
faith belief was not a valid defense to allegations of dispa­
rate treatment and unconstitutional discrimination.

The District Court granted summary judgment for 
respondents. 554 F. Supp. 2d 142. It described petition­
ers’ argument as “boilfing] down to the assertion that if 
[respondents] cannot prove that the disparities on the 
Lieutenant and Captain exams were due to a particular 
flaw inherent in those exams, then they should have 
certified the results because there was no other alterna-



16 RICCI v. DeSTEFANO

Opinion of the Court

tive in place.” Id., at 156. The District Court concluded 
that, “ [notwithstanding the shortcomings in the evidence 
on existing, effective alternatives, it is not the case that 
[respondents] must certify a test where they cannot pin­
point its deficiency explaining its disparate impact . . . 
simply because they have not yet formulated a better 
selection method.” Ibid. It also ruled that respondents’ 
“motivation to avoid making promotions based on a test 
with a racially disparate impact . . . does not, as a matter 
of law, constitute discriminatory intent” under Title VII. 
Id., at 160. The District Court rejected petitioners’ equal 
protection claim on the theory that respondents had not 
acted because of “discriminatory animus” toward petition­
ers. Id., at 162. It concluded that respondents’ actions 
were not “based on race” because “all applicants took the 
same test, and the result was the same for all because the 
test results were discarded and nobody was promoted.” 
Id., at 161.

After full briefing and argument by the parties, the 
Court of Appeals affirmed in a one-paragraph, unpub­
lished summary order; it later withdrew that order, issu­
ing in its place a nearly identical, one-paragraph per 
curiam opinion adopting the District Court’s reasoning. 
530 F. 3d 87 (CA2 2008). Three days later, the Court of 
Appeals voted 7 to 6 to deny rehearing en banc, over writ­
ten dissents by Chief Judge Jacobs and Judge Cabranes. 
530 F. 3d 88.

This action presents two provisions of Title VII to be 
interpreted and reconciled, with few, if any, precedents in 
the courts of appeals discussing the issue. Depending on 
the resolution of the statutory claim, a fundamental con­
stitutional question could also arise. We found it prudent
and appropriate to grant certiorari. 555 U. S .___(2009).
We now reverse.



Cite as: 557 U. S .____(2009) 17

Opinion of the Court

II
Petitioners raise a statutory claim, under the disparate- 

treatment prohibition of Title VII, and a constitutional 
claim, under the Equal Protection Clause of the Four­
teenth Amendment. A decision for petitioners on their 
statutory claim would provide the relief sought, so we 
consider it first. See Atkins v. Parker, 472 U. S. 115, 123 
(1985); Escambia County v. McMillan, 466 U. S. 48, 51 
(1984) (per curiam) (“[N]ormally the Court will not decide 
a constitutional question if there is some other ground 
upon which to dispose of the case”).

A
Title VII of the Civil Rights Act of 1964, 42 U. S. C. 

§2000e et seq., as amended, prohibits employment dis­
crimination on the basis of race, color, religion, sex, or 
national origin. Title VII prohibits both intentional dis­
crimination (known as “disparate treatment”) as well as, 
in some cases, practices that are not intended to discrimi­
nate but in fact have a disproportionately adverse effect on 
minorities (known as “disparate impact”).

As enacted in 1964, Title VU’s principal nondiscrimina­
tion provision held employers liable only for disparate 
treatment. That section retains its original wording to­
day. It makes it unlawful for an employer “to fail or refuse 
to hire or to discharge any individual, or otherwise to 
discriminate against any individual with respect to his 
compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex, 
or national origin.” §2000e-2(a)(l); see also 78 Stat. 255. 
Disparate-treatment cases present “the most easily under­
stood type of discrimination,” Teamsters v. United States, 
431 U. S. 324, 335, n. 15 (1977), and occur where an em­
ployer has “treated [a] particular person less favorably 
than others because o f’ a protected trait. Watson v. Fort 
Worth Bank & Trust, 487 U. S. 977, 985-986 (1988). A



18 RICCI v. DeSTEFANO

Opinion of the Court

disparate-treatment plaintiff must establish “that the 
defendant had a discriminatory intent or motive” for 
taking a job-related action. Id., at 986.

The Civil Rights Act of 1964 did not include an express 
prohibition on policies or practices that produce a dispa­
rate impact. But in Griggs v. Duke Power Co., 401 U. S. 
424 (1971), the Court interpreted the Act to prohibit, in 
some cases, employers’ facially neutral practices that, in 
fact, are “discriminatory in operation.” Id., at 431. The 
Griggs Court stated that the “touchstone” for disparate- 
impact liability is the lack of “business necessity”: “If an 
employment practice which operates to exclude [minori­
ties] cannot be shown to be related to job performance, the 
practice is prohibited.” Ibid.; see also id., at 432 (em­
ployer’s burden to demonstrate that practice has “a mani­
fest relationship to the employment in question”); Albe­
marle Paper Co. v. Moody, 422 U. S. 405, 425 (1975). 
Under those precedents, if an employer met its burden by 
showing that its practice was job-related, the plaintiff was 
required to show a legitimate alternative that would have 
resulted in less discrimination. Ibid, (allowing complain­
ing party to show “that other tests or selection devices, 
without a similarly undesirable racial effect, would also 
serve the employer’s legitimate interest”).

Twenty years after Griggs, the Civil Rights Act of 1991, 
105 Stat. 1071, was enacted. The Act included a provision 
codifying the prohibition on disparate-impact discrimina­
tion. That provision is now in force along with the dispa- 
rate-treatment section already noted. Under the dispa­
rate-impact statute, a plaintiff establishes a prima facie 
violation by showing that an employer uses “a particular 
employment practice that causes a disparate impact on 
the basis of race, color, religion, sex, or national origin.” 
42 U. S. C. §2000e-2(k)(l)(A)(i). An employer may defend 
against liability by demonstrating that the practice is “job 
related for the position in question and consistent with



Cite as: 557 U. S .____(2009) 19

Opinion of the Court

business necessity.” Ibid. Even if the employer meets 
that burden, however, a plaintiff may still succeed by 
showing that the employer refuses to adopt an available 
alternative employment practice that has less disparate 
impact and serves the employer’s legitimate needs. 
§§2000e-2(k)(l)(A)(ii) and (C).

B
Petitioners allege that when the CSB refused to certify 

the captain and lieutenant exam results based on the race 
of the successful candidates, it discriminated against them 
in violation of Title VU’s disparate-treatment provision. 
The City counters that its decision was permissible be­
cause the tests “appear[ed] to violate Title VU’s disparate- 
impact provisions.” Brief for Respondents 12.

Our analysis begins with this premise: The City’s ac­
tions would violate the disparate-treatment prohibition of 
Title VII absent some valid defense. All the evidence 
demonstrates that the City chose not to certify the exami­
nation results because of the statistical disparity based on 
race—i.e., how minority candidates had performed when 
compared to white candidates. As the District Court put 
it, the City rejected the test results because “too many 
whites and not enough minorities would be promoted were 
the lists to be certified.” 554 F. Supp. 2d, at 152; see also 
ibid, (respondents’ “own arguments . . . show that the 
City’s reasons for advocating non-certification were re­
lated to the racial distribution of the results”). Without 
some other justification, this express, race-based deci­
sionmaking violates Title VU’s command that employers 
cannot take adverse employment actions because of an 
individual’s race. See §2000e-2(a)(l).

The District Court did not adhere to this principle, 
however. It held that respondents’ “motivation to avoid 
making promotions based on a test with a racially dispa­
rate impact . . . does not, as a matter of law, constitute



20 RICCI v. DeSTEFANO

Opinion of the Court

discriminatory intent.” 554 F. Supp. 2d, at 160. And the 
Government makes a similar argument in this Court. It 
contends that the “structure of Title VII belies any claim 
that an employer’s intent to comply with Title VU’s dispa- 
rate-impact provisions constitutes prohibited discrimina­
tion on the basis of race.” Brief for United States as 
Amicus Curiae 11. But both of those statements turn 
upon the City’s objective—avoiding disparate-impact 
liability—while ignoring the City’s conduct in the name of 
reaching that objective. Whatever the City’s ultimate 
aim—however well intentioned or benevolent it might 
have seemed—the City made its employment decision 
because of race. The City rejected the test results solely 
because the higher scoring candidates were white. The 
question is not whether that conduct was discriminatory 
but whether the City had a lawful justification for its race- 
based action.

We consider, therefore, whether the purpose to avoid 
disparate-impact liability excuses what otherwise would 
be prohibited disparate-treatment discrimination. Courts 
often confront cases in which statutes and principles point 
in different directions. Our task is to provide guidance to 
employers and courts for situations when these two prohi­
bitions could be in conflict absent a rule to reconcile them. 
In providing this guidance our decision must be consistent 
with the important purpose of Title VII—that the work­
place be an environment free of discrimination, where race 
is not a barrier to opportunity.

With these principles in mind, we turn to the parties’ 
proposed means of reconciling the statutory provisions. 
Petitioners take a strict approach, arguing that under 
Title VII, it cannot be permissible for an employer to take 
race-based adverse employment actions in order to avoid 
disparate-impact liability—even if the employer knows its 
practice violates the disparate-impact provision. See Brief 
for Petitioners 43. Petitioners would have us hold that,



Cite as: 557 U. S .____(2009) 21

Opinion of the Court

under Title VII, avoiding unintentional discrimination 
cannot justify intentional discrimination. That assertion, 
however, ignores the fact that, by codifying the disparate- 
impact provision in 1991, Congress has expressly prohib­
ited both types of discrimination. We must interpret the 
statute to give effect to both provisions where possible. 
See, e.g., United States v. Atlantic Research Corp., 
551 U. S. 128, 137 (2007) (rejecting an interpretation 
that would render a statutory provision “a dead letter”). 
We cannot accept petitioners’ broad and inflexible 
formulation.

Petitioners next suggest that an employer in fact must 
be in violation of the disparate-impact provision before it 
can use compliance as a defense in a disparate-treatment 
suit. Again, this is overly simplistic and too restrictive of 
Title VII’s purpose. The rule petitioners offer would run 
counter to what we have recognized as Congress’s intent 
that “voluntary compliance” be “the preferred means of 
achieving the objectives of Title VII.” Firefighters v. Cleve­
land, 478 U. S. 501, 515 (1986); see also Wygant v. Jack- 
son Bd. of Ed., 476 U. S. 267, 290 (1986) (O’Connor, J., 
concurring in part and concurring in judgment). Forbid­
ding employers to act unless they know, with certainty, 
that a practice violates the disparate-impact provision 
would bring compliance efforts to a near standstill. Even 
in the limited situations when this restricted standard 
could be met, employers likely would hesitate before tak­
ing voluntary action for fear of later being proven wrong in 
the course of litigation and then held to account for dispa­
rate treatment.

At the opposite end of the spectrum, respondents and 
the Government assert that an employer’s good-faith belief 
that its actions are necessary to comply with Title VII’s 
disparate-impact provision should be enough to justify 
race-conscious conduct. But the original, foundational 
prohibition of Title VII bars employers from taking ad-



22 RICCI v. DeSTEFANO

Opinion of the Court

verse action “because of . . . race.” §2000e-2(a)(l). And 
when Congress codified the disparate-impact provision in 
1991, it made no exception to disparate-treatment liability 
for actions taken in a good-faith effort to comply with the 
new, disparate-impact provision in subsection (k). Allow­
ing employers to violate the disparate-treatment prohibi­
tion based on a mere good-faith fear of disparate-impact 
liability would encourage race-based action at the slightest 
hint of disparate impact. A minimal standard could cause 
employers to discard the results of lawful and beneficial 
promotional examinations even where there is little if any 
evidence of disparate-impact discrimination. That would 
amount to a de facto quota system, in which a “focus on 
statistics . . . could put undue pressure on employers to 
adopt inappropriate prophylactic measures.” Watson, 487 
U. S., at 992 (plurality opinion). Even worse, an employer 
could discard test results (or other employment practices) 
with the intent of obtaining the employer’s preferred racial 
balance. That operational principle could not be justified, 
for Title VII is express in disclaiming any interpretation of 
its requirements as calling for outright racial balancing. 
§2000e-2(j). The purpose of Title VII “is to promote hiring 
on the basis of job qualifications, rather than on the basis 
of race or color.” Griggs, 401 U. S., at 434.

In searching for a standard that strikes a more appro­
priate balance, we note that this Court has considered 
cases similar to this one, albeit in the context of the Equal 
Protection Clause of the Fourteenth Amendment. The 
Court has held that certain government actions to remedy 
past racial discrimination—actions that are themselves 
based on race—are constitutional only where there is a 
“ ‘strong basis in evidence’” that the remedial actions were 
necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 
500 (1989) (quoting Wygant, supra, at 277 (plurality opin­
ion)). This suit does not call on us to consider whether the 
statutory constraints under Title VII must be parallel in



Cite as: 557 U. S .____(2009) 23

Opinion of the Court

all respects to those under the Constitution. That does not 
mean the constitutional authorities are irrelevant, how­
ever. Our cases discussing constitutional principles can 
provide helpful guidance in this statutory context. See 
Watson, supra, at 993 (plurality opinion).

Writing for a plurality in Wygant and announcing the 
strong-basis-in-evidence standard, Justice Powell recog­
nized the tension between eliminating segregation and 
discrimination on the one hand and doing away with all 
governmentally imposed discrimination based on race on 
the other. 476 U. S., at 277. The plurality stated that 
those “related constitutional duties are not always harmo­
nious,” and that “reconciling them requires . . . employers 
to act with extraordinary care.” Ibid. The plurality re­
quired a strong basis in evidence because “[e]videntiary 
support for the conclusion that remedial action is war­
ranted becomes crucial when the remedial program is 
challenged in court by nonminority employees.” Ibid. The 
Court applied the same standard in Croson, observing that 
“an amorphous claim that there has been past discrimina­
tion . . . cannot justify the use of an unyielding racial 
quota.” 488 U. S., at 499.

The same interests are at work in the interplay between 
the disparate-treatment and disparate-impact provisions 
of Title VII. Congress has imposed liability on employers 
for unintentional discrimination in order to rid the work­
place of “practices that are fair in form, but discriminatory 
in operation.” Griggs, supra, at 431. But it has also pro­
hibited employers from taking adverse employment ac­
tions “because of’ race. §2000e-2(a)(l). Applying the 
strong-basis-in-evidence standard to Title VII gives effect 
to both the disparate-treatment and disparate-impact 
provisions, allowing violations of one in the name of com­
pliance with the other only in certain, narrow circum­
stances. The standard leaves ample room for employers’ 
voluntary compliance efforts, which are essential to the



24 RICCI v. DeSTEFANO

Opinion of the Court

statutory scheme and to Congress’s efforts to eradicate 
workplace discrimination. See Firefighters, supra, at 515. 
And the standard appropriately constrains employers’ 
discretion in making race-based decisions: It limits that 
discretion to cases in which there is a strong basis in 
evidence of disparate-impact liability, but it is not so 
restrictive that it allows employers to act only when there 
is a provable, actual violation.

Resolving the statutory conflict in this way allows the 
disparate-impact prohibition to work in a manner that is 
consistent with other provisions of Title VII, including the 
prohibition on adjusting employment-related test scores 
on the basis of race. See §2000e-2(/). Examinations like 
those administered by the City create legitimate expecta­
tions on the part of those who took the tests. As is the 
case with any promotion exam, some of the firefighters 
here invested substantial time, money, and personal 
commitment in preparing for the tests. Employment tests 
can be an important part of a neutral selection system 
that safeguards against the very racial animosities Title 
VII was intended to prevent. Here, however, the firefight­
ers saw their efforts invalidated by the City in sole reli­
ance upon race-based statistics.

If an employer cannot rescore a test based on the candi­
dates’ race, §2000e-2(Z), then it follows a fortiori that it 
may not take the greater step of discarding the test alto­
gether to achieve a more desirable racial distribution of 
promotion-eligible candidates—absent a strong basis in 
evidence that the test was deficient and that discarding 
the results is necessary to avoid violating the disparate- 
impact provision. Restricting an employer’s ability to 
discard test results (and thereby discriminate against 
qualified candidates on the basis of their race) also is in 
keeping with Title VH’s express protection of bona fide 
promotional examinations. See §2000e-2(h) (“[N]or shall 
it be an unlawful employment practice for an employer to



Cite as: 557 U. S .____(2009) 25

Opinion of the Court

give and to act upon the results of any professionally 
developed ability test provided that such test, its admini­
stration or action upon the results is not designed, in­
tended or used to discriminate because of race”); cf. AT&T 
Corp. v. Hulteen, 556 U. S .___, __ (2009) (slip op., at 8).

For the foregoing reasons, we adopt the strong-basis-in- 
evidence standard as a matter of statutory construction to 
resolve any conflict between the disparate-treatment and 
disparate-impact provisions of Title VII.

Our statutory holding does not address the constitution­
ality of the measures taken here in purported compliance 
with Title VII. We also do not hold that meeting the 
strong-basis-in-evidence standard would satisfy the Equal 
Protection Clause in a future case. As we explain below, 
because respondents have not met their burden under 
Title VII, we need not decide whether a legitimate fear of 
disparate impact is ever sufficient to justify discriminatory 
treatment under the Constitution.

Nor do we question an employer’s affirmative efforts to 
ensure that all groups have a fair opportunity to apply for 
promotions and to participate in the process by which 
promotions will be made. But once that process has been 
established and employers have made clear their selection 
criteria, they may not then invalidate the test results, 
thus upsetting an employee’s legitimate expectation not to 
be judged on the basis of race. Doing so, absent a strong 
basis in evidence of an impermissible disparate impact, 
amounts to the sort of racial preference that Congress has 
disclaimed, §2000e-2(j), and is antithetical to the notion of 
a workplace where individuals are guaranteed equal 
opportunity regardless of race.

Title VII does not prohibit an employer from consider­
ing, before administering a test or practice, how to design 
that test or practice in order to provide a fair opportunity 
for all individuals, regardless of their race. And when, 
during the test-design stage, an employer invites com-



26 RICCI v. DeSTEFANO

Opinion of the Court

ments to ensure the test is fair, that process can provide a 
common ground for open discussions toward that end. We 
hold only that, under Title VII, before an employer can 
engage in intentional discrimination for the asserted 
purpose of avoiding or remedying an unintentional dispa­
rate impact, the employer must have a strong basis in 
evidence to believe it will be subject to disparate-impact 
liability if it fails to take the race-conscious, discrimina­
tory action.

C
The City argues that, even under the strong-basis-in- 

evidence standard, its decision to discard the examination 
results was permissible under Title VII. That is incorrect. 
Even if respondents were motivated as a subjective matter 
by a desire to avoid committing disparate-impact dis­
crimination, the record makes clear there is no support for 
the conclusion that respondents had an objective, strong 
basis in evidence to find the tests inadequate, with some 
consequent disparate-impact liability in violation of Title 
VII.

On this basis, we conclude that petitioners have met 
their obligation to demonstrate that there is “no genuine 
issue as to any material fact” and that they are “entitled to 
judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c). 
On a motion for summary judgment, “facts must be viewed 
in the fight most favorable to the nonmoving party only if 
there is a ‘genuine’ dispute as to those facts.” Scott v. 
Harris, 550 U. S. 372, 380 (2007). “Where the record 
taken as a whole could not lead a rational trier of fact to 
find for the nonmoving party, there is no genuine issue for 
trial.” Matsushita Elec. Industrial Co. v. Zenith Radio 
Corp., 475 U. S. 574, 587 (1986) (internal quotation marks 
omitted). In this Court, the City’s only defense is that it 
acted to comply with Title VII’s disparate-impact provi­
sion. To succeed on their motion, then, petitioners must



Cite as: 557 U. S .____(2009) 27

Opinion of the Court

demonstrate that there can be no genuine dispute that 
there was no strong basis in evidence for the City to con­
clude it would face disparate-impact liability if it certified 
the examination results. See Celotex Corp. v. Catrett, All 
U. S. 317, 324 (1986) (where the nonmoving party “will 
bear the burden of proof at trial on a dispositive issue,” the 
nonmoving party bears the burden of production under 
Rule 56 to “designate specific facts showing that there is 
a genuine issue for trial” (internal quotation marks 
omitted)).

The racial adverse impact here was significant, and 
petitioners do not dispute that the City was faced with a 
prima facie case of disparate-impact liability. On the 
captain exam, the pass rate for white candidates was 64 
percent but was 37.5 percent for both black and Hispanic 
candidates. On the lieutenant exam, the pass rate for 
white candidates was 58.1 percent; for black candidates, 
31.6 percent; and for Hispanic candidates, 20 percent. The 
pass rates of minorities, which were approximately one- 
half the pass rates for white candidates, fall well below the 
80-percent standard set by the EEOC to implement the 
disparate-impact provision of Title VII. See 29 CFR 
§ 1607.4(D) (2008) (selection rate that is less than 80 per­
cent “of the rate for the group with the highest rate will 
generally be regarded by the Federal enforcement agen­
cies as evidence of adverse impact”); Watson, 487 U. S., at 
995-996, n. 3 (plurality opinion) (EEOC’s 80-percent 
standard is “a rule of thumb for the courts”). Based on 
how the passing candidates ranked and an application of 
the “rule of three,” certifying the examinations would have 
meant that the City could not have considered black can­
didates for any of the then-vacant lieutenant or captain 
positions.

Based on the degree of adverse impact reflected in the 
results, respondents were compelled to take a hard look at 
the examinations to determine whether certifying the



28 RICCI v. DeSTEFANO

Opinion of the Court

results would have had an impermissible disparate im­
pact. The problem for respondents is that a prima facie 
case of disparate-impact liability—essentially, a threshold 
showing of a significant statistical disparity, Connecticut 
v. Teal, 457 U. S. 440, 446 (1982), and nothing more—is 
far from a strong basis in evidence that the City would 
have been liable under Title VII had it certified the re­
sults. That is because the City could be liable for dispa­
rate-impact discrimination only if the examinations were 
not job related and consistent with business necessity, or if 
there existed an equally valid, less-discriminatory alterna­
tive that served the City’s needs but that the City refused 
to adopt. §2000e-2(k)(l)(A), (C). We conclude there is no 
strong basis in evidence to establish that the test was 
deficient in either of these respects. We address each of 
the two points in turn, based on the record developed by 
the parties through discovery—a record that concentrates 
in substantial part on the statements various witnesses 
made to the CSB.

1
There is no genuine dispute that the examinations were 

job-related and consistent with business necessity. The 
City’s assertions to the contrary are “blatantly contra­
dicted by the record.” Scott, supra, at 380. The CSB 
heard statements from Chad Legel (the IOS vice presi­
dent) as well as city officials outlining the detailed steps 
IOS took to develop and administer the examinations. 
IOS devised the written examinations, which were the 
focus of the CSB’s inquiry, after painstaking analyses of 
the captain and lieutenant positions—analyses in which 
IOS made sure that minorities were overrepresented. And 
IOS drew the questions from source material approved by 
the Department. Of the outside witnesses who appeared 
before the CSB, only one, Vincent Lewis, had reviewed the 
examinations in any detail, and he was the only one with



Cite as: 557 U .S .____(2009) 29

Opinion of the Court

any firefighting experience. Lewis stated that the “ques­
tions were relevant for both exams.” CA2 App. A1053. 
The only other witness who had seen any part of the ex­
aminations, Christopher Hornick (a competitor of IOS’s), 
criticized the fact that no one within the Department had 
reviewed the tests—a condition imposed by the City to 
protect the integrity of the exams in fight of past alleged 
security breaches. But Hornick stated that the exams 
“appea[r] to be . . reasonably good” and recommended that 
the CSB certify the results. Id., at A1041.

Arguing that the examinations were not job-related, 
respondents note some candidates’ complaints that certain 
examination questions were contradictory or did not spe­
cifically apply to firefighting practices in New Haven. But 
Legel told the CSB that IOS had addressed those con­
cerns—that it entertained “a handful” of challenges to the 
validity of particular examination questions, that it “re­
viewed those challenges and provided feedback [to the 
City] as to what we thought the best course of action was,” 
and that he could remember at least one question IOS had 
thrown out (“offering] credit to everybody for that particu­
lar question”). Id., at A955-A957. For his part, Hornick 
said he “suspect [ed] that some of the criticisms . . . [lev­
eled] by candidates” were not valid. Id., at A1035.

The City, moreover, turned a blind eye to evidence that 
supported the exams’ validity. Although the City’s con­
tract with IOS contemplated that IOS would prepare a 
technical report consistent with EEOC guidelines for 
examination-validity studies, the City made no request for 
its report. After the January 2004 meeting between Legel 
and some of the city-official respondents, in which Legel 
defended the examinations, the City sought no further 
information from IOS, save its appearance at a CSB meet­
ing to explain how it developed and administered the 
examinations. IOS stood ready to provide respondents 
with detailed information to establish the validity of the



30 RICCI v. DeSTEFANO

Opinion of the Court

exams, but respondents did not accept that offer.
2

Respondents also lacked a strong basis in evidence of an 
equally valid, less-discriminatory testing alternative that 
the City, by certifying the examination results, would 
necessarily have refused to adopt. Respondents raise 
three arguments to the contrary, but each argument fails. 
First, respondents refer to testimony before the CSB that 
a different composite-score calculation—weighting the 
written and oral examination scores 30/70—would have 
allowed the City to consider two black candidates for then- 
open lieutenant positions and one black candidate for 
then-open captain positions. (The City used a 60/40 
weighting as required by its contract with the New Haven 
firefighters’ union.) But respondents have produced no 
evidence to show that the 60/40 weighting was indeed 
arbitrary. In fact, because that formula was the result of a 
union-negotiated collective-bargaining agreement, we 
presume the parties negotiated that weighting for a ra­
tional reason. Nor does the record contain any evidence 
that the 30/70 weighting would be an equally valid way to 
determine whether candidates possess the proper mix of 
job knowledge and situational skills to earn promotions. 
Changing the weighting formula, moreover, could well 
have violated Title VU’s prohibition of altering test scores 
on the basis of race. See §2000e-2(l). On this record, 
there is no basis to conclude that a 30/70 weighting was an 
equally valid alternative the City could have adopted.

Second, respondents argue that the City could have 
adopted a different interpretation of the “rule of three” 
that would have produced less discriminatory results. The 
rule, in the New Haven city charter, requires the City to 
promote only from “those applicants with the three high­
est scores” on a promotional examination. New Haven, 
Conn., Code of Ordinances, Tit. I, Art. XXX, §160 (1992).



Cite as: 557 U. S .____(2009) 31

Opinion of the Court

A state court has interpreted the charter to prohibit so- 
called “banding”—the City’s previous practice of rounding 
scores to the nearest whole number and considering all 
candidates with the same whole-number score as being of 
one rank. Banding allowed the City to consider three 
ranks of candidates (with the possibility of multiple candi­
dates filling each rank) for purposes of the rule of three. 
See Kelly v. New Haven, No. CV000444614, 2004 WL 
114377, *3 (Conn. Super. Ct., Jan. 9, 2004). Respondents 
claim that employing banding here would have made four 
black and one Hispanic candidates eligible for then-open 
lieutenant and captain positions.

A state court’s prohibition of banding, as a matter of 
municipal law under the charter, may not eliminate band­
ing as a valid alternative under Title VII. See 42 U. S. C. 
§2000e-7. We need not resolve that point, however. Here, 
banding was not a valid alternative for this reason: Had 
the City reviewed the exam results and then adopted 
banding to make the minority test scores appear higher, it 
would have violated Title VH’s prohibition of adjusting 
test results on the basis of race. §2000e-2(Z); see also 
Chicago Firefighters Local 2 v. Chicago, 249 F. 3d 649, 656 
(CA7 2001) (Posner, J.) (“We have no doubt that if banding 
were adopted in order to make lower black scores seem 
higher, it would indeed be . . . forbidden”). As a matter of 
law, banding was not an alternative available to the City 
when it was considering whether to certify the examina­
tion results.

Third, and finally, respondents refer to statements by 
Hornick in his telephone interview with the CSB regard­
ing alternatives to the written examinations. Hornick 
stated his “belie [fy’ that an “assessment center process,” 
which would have evaluated candidates’ behavior in typi­
cal job tasks, “would have demonstrated less adverse 
impact.” CA2 App. A1039. But Hornick’s brief mention of 
alternative testing methods, standing alone, does not raise



32 RICCI v. DeSTEFANO

Opinion of the Court

a genuine issue of material fact that assessment centers 
were available to the City at the time of the examinations 
and that they would have produced less adverse impact. 
Other statements to the CSB indicated that the Depart­
ment could not have used assessment centers for the 2003 
examinations. Supra, at 14. And although respondents 
later argued to the CSB that Hornick had pushed the City 
to reject the test results, supra, at 15-17, the truth is that 
the essence of Hornick’s remarks supported its certifying 
the test results. See Scott, 550 U. S., at 380. Hornick 
stated that adverse impact in standardized testing “has 
been in existence since the beginning of testing,” CA2 App. 
A1037, and that the disparity in New Haven’s test results 
was “somewhat higher but generally in the range that 
we’ve seen professionally.” Id., at A1030—A1031. He told 
the CSB he was “not suggesting” that IOS “somehow 
created a test that had adverse impacts that it should not 
have had.” Id., at A1038. And he suggested that the CSB 
should “certify the list as it exists.” Id., at A1041.

Especially when it is noted that the strong-basis-in­
evidence standard applies, respondents cannot create a 
genuine issue of fact based on a few stray (and contradic­
tory) statements in the record. And there is no doubt 
respondents fall short of the mark by relying entirely on 
isolated statements by Hornick. Hornick had not 
“studied] the test at length or in detail.” Id., at A1030. 
And as he told the CSB, he is a “direct competitor” of 
IOS’s. Id., at A1029. The remainder of his remarks 
showed that Hornick’s primary concern—somewhat to the 
frustration of CSB members—was marketing his services 
for the future, not commenting on the results of the tests 
the City had already administered. See, e.g., id., at 
A1026, A1027, A1032, A1036, A1040, A1041. Hornick’s 
hinting had its intended effect: The City has since hired 
him as a consultant. As for the other outside witnesses 
who spoke to the CSB, Vincent Lewis (the retired fire



Cite as: 557 U. S .____(2009) 33

Opinion of the Court

captain) thought the CSB should certify the test results. 
And Janet Helms (the Boston College professor) declined 
to review the examinations and told the CSB that, as a 
society, “we need to develop a new way of assessing peo­
ple.” Id., at A1073. That task was beyond the reach of the 
CSB, which was concerned with the adequacy of the test 
results before it.

3
On the record before us, there is no genuine dispute that 

the City lacked a strong basis in evidence to believe it 
would face disparate-impact liability if it certified the 
examination results. In other words, there is no evidence 
—let alone the required strong basis in evidence—that the 
tests were flawed because they were not job-related or 
because other, equally valid and less discriminatory tests 
were available to the City. Fear of litigation alone cannot 
justify an employer’s reliance on race to the detriment of 
individuals who passed the examinations and qualified for 
promotions. The City’s discarding the test results was 
impermissible under Title VII, and summary judgment is 
appropriate for petitioners on their disparate-treatment 
claim.

ie k  ie

The record in this litigation documents a process that, at 
the outset, had the potential to produce a testing proce­
dure that was true to the promise of Title VII: No individ­
ual should face workplace discrimination based on race. 
Respondents thought about promotion qualifications and 
relevant experience in neutral ways. They were careful to 
ensure broad racial participation in the design of the test 
itself and its administration. As we have discussed at 
length, the process was open and fair.

The problem, of course, is that after the tests were 
completed, the raw racial results became the predominant



34 RICCI v. DeSTEFANO

Opinion of the Court

rationale for the City’s refusal to certify the results. The 
injury arises in part from the high, and justified, expecta­
tions of the candidates who had participated in the testing 
process on the terms the City had established for the 
promotional process. Many of the candidates had studied 
for months, at considerable personal and financial ex­
pense, and thus the injury caused by the City’s reliance on 
raw racial statistics at the end of the process was all the 
more severe. Confronted with arguments both for and 
against certifying the test results—and threats of a law­
suit either way—the City was required to make a difficult 
inquiry. But its hearings produced no strong evidence of a 
disparate-impact violation, and the City was not entitled 
to disregard the tests based solely on the racial disparity 
in the results.

Our holding today clarifies how Title VII applies to 
resolve competing expectations under the disparate- 
treatment and disparate-impact provisions. If, after it 
certifies the test results, the City faces a disparate-impact 
suit, then in fight of our holding today it should be clear 
that the City would avoid disparate-impact liability based 
on the strong basis in evidence that, had it not certified 
the results, it would have been subject to disparate- 
treatment liability.

Petitioners are entitled to summary judgment on their 
Title VII claim, and we therefore need not decide the 
underlying constitutional question. The judgment of the 
Court of Appeals is reversed, and the cases are remanded 
for further proceedings consistent with this opinion.

It is so ordered.



Cite as: 557 U. S .____(2009) 1

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES

Nos. 07-1428 and 08-328

FRANK RICCI, ET AL., PETITIONERS
07- 1428 v.

JOHN DESTEFANO ET AL.
FRANK RICCI, ET AL., PETITIONERS

08- 328 v.
JOHN DESTEFANO ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SECOND CIRCUIT

[June 29, 2009]

JUSTICE SCALIA, concurring.
I join the Court’s opinion in full, but write separately to 

observe that its resolution of this dispute merely post­
pones the evil day on which the Court will have to confront 
the question: Whether, or to what extent, are the dispa­
rate-impact provisions of Title VII of the Civil Rights Act 
of 1964 consistent with the Constitution’s guarantee of 
equal protection? The question is not an easy one. See 
generally Primus, Equal Protection and Disparate Impact: 
Round Three, 117 Harv. L. Rev. 493 (2003).

The difficulty is this: Whether or not Title VH’s dispa­
rate-treatment provisions forbid “remedial” race-based 
actions when a disparate-impact violation would not oth­
erwise result—the question resolved by the Court today— 
it is clear that Title VII not only permits but affirmatively 
requires such actions when a disparate-impact violation 
would otherwise result. See ante, at 20-21. But if the 
Federal Government is prohibited from discriminating on 
the basis of race, Bolling v. Sharpe, 347 U. S. 497, 500 
(1954), then surely it is also prohibited from enacting laws



2 RICCI v. DeSTEFANO

SCALIA, J., concurring

mandating that third parties—e.g., employers, whether 
private, State, or municipal—discriminate on the basis of 
race. See Buchanan v. Warley, 245 U. S. 60, 78-82 (1917). 
As the facts of these cases illustrate, Title VU’s disparate- 
impact provisions place a racial thumb on the scales, often 
requiring employers to evaluate the racial outcomes of 
their policies, and to make decisions based on (because of) 
those racial outcomes. That type of racial decisionmaking 
is, as the Court explains, discriminatory. See ante, at 19; 
Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 
279 (1979).

To be sure, the disparate-impact laws do not mandate 
imposition of quotas, but it is not clear why that should 
provide a safe harbor. Would a private employer not be 
guilty of unlawful discrimination if he refrained from 
establishing a racial hiring quota but intentionally de­
signed his hiring practices to achieve the same end? 
Surely he would. Intentional discrimination is still occur­
ring, just one step up the chain. Government compulsion 
of such design would therefore seemingly violate equal 
protection principles. Nor would it matter that Title VII 
requires consideration of race on a wholesale, rather than 
retail, level. “[T]he Government must treat citizens as 
individuals, not as simply components of a racial, reli­
gious, sexual or national class.” Miller v. Johnson, 515 
U. S. 900, 911 (1995) (internal quotation marks omitted). 
And of course the purportedly benign motive for the dispa­
rate-imp act provisions cannot save the statute. See Ada- 
rand Constructors, Inc. v. Pena, 515 U. S. 200, 227 (1995).

It might be possible to defend the law by framing it as 
simply an evidentiary tool used to identify genuine, inten­
tional discrimination—to “smoke out,” as it were, dispa­
rate treatment. See Primus, supra, at 498-499, 520-521. 
Disparate impact is sometimes (though not always, see 
Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 992 
(1988) (plurality opinion)) a signal of something illicit, so a



Cite as: 557 U. S .____(2009) 3

SCALIA, J., concurring

regulator might allow statistical disparities to play some 
role in the evidentiary process. Cf. McDonnell Douglas 
Corp. v. Green, 411 U. S. 792, 802-803 (1973). But argua­
bly the disparate-impact provisions sweep too broadly to 
be fairly characterized in such a fashion—since they fail to 
provide an affirmative defense for good-faith (i.e., nonra- 
cially motivated) conduct, or perhaps even for good faith 
plus hiring standards that are entirely reasonable. See 
post, at 15-16, and n. 1 (GlNSBURG, J., dissenting) (de­
scribing the demanding nature of the “business necessity” 
defense). This is a question that this Court will have to 
consider in due course. It is one thing to free plaintiffs 
from proving an employer’s illicit intent, but quite another 
to preclude the employer from proving that its motives 
were pure and its actions reasonable.

The Court’s resolution of these cases makes it unneces­
sary to resolve these matters today. But the war between 
disparate impact and equal protection will be waged 
sooner or later, and it behooves us to begin thinking about 
how—and on what terms—to make peace between them.



Cite as: 557 U. S .____(2009) 1

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES

Nos. 07-1428 and 08-328

FRANK RICCI, ET AL., PETITIONERS 
v.

JOHN DeSTEFANO ET AL.

FRANK RICCI, ET AL., PETITIONERS 
v.

JOHN DeSTEFANO ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SECOND CIRCUIT

[June 29, 2009]

Justice Alito , with whom Justice Scalia and Justice 
THOMAS join, concurring.

I join the Court’s opinion in full. I write separately only 
because the dissent, while claiming that “[t]he Court’s 
recitation of the facts leaves out important parts of the 
story,” post, at 2 (opinion of GlNSBURG, J.), provides an 
incomplete description of the events that led to New Ha­
ven’s decision to reject the results of its exam. The dis­
sent’s omissions are important because, when all of the 
evidence in the record is taken into account, it is clear 
that, even if the legal analysis in Parts II and III-A of the 
dissent were accepted, affirmance of the decision below is 
untenable.

I
When an employer in a disparate-treatment case under 

Title VII of the Civil Rights Act of 1964 claims that an 
employment decision, such as the refusal to promote, was 
based on a legitimate reason, two questions—one objective 
and one subjective—must be decided. The first, objective 
question is whether the reason given by the employer is

07- 1428

08- 328



2 RICCI v. DeSTEFANO

Alito, J., concurring

one that is legitimate under Title VII. See St. Mary’s 
Honor Center v. Hicks, 509 U. S. 502, 506-507 (1993). If 
the reason provided by the employer is not legitimate on 
its face, the employer is liable. Id., at 509. The second, 
subjective question concerns the employer’s intent. If an 
employer offers a facially legitimate reason for its decision 
but it turns out that this explanation was just a pretext 
for discrimination, the employer is again liable. See id., at 
510-512.

The question on which the opinion of the Court and the 
dissenting opinion disagree concerns the objective compo­
nent of the determination that must be made when an 
employer justifies an employment decision, like the one 
made in this litigation, on the ground that a contrary 
decision would have created a risk of disparate-impact 
liability. The Court holds—and I entirely agree—that 
concern about disparate-impact liability is a legitimate 
reason for a decision of the type involved here only if there 
was a “substantial basis in evidence to find the tests in­
adequate.” Ante, at 26. The Court ably demonstrates that 
in this litigation no reasonable jury could find that the city 
of New Haven (City) possessed such evidence and there­
fore summary judgment for petitioners is required. Be­
cause the Court correctly holds that respondents cannot 
satisfy this objective component, the Court has no need to 
discuss the question of the respondents’ actual intent. As 
the Court puts it, “[e]ven if respondents were motivated as 
a subjective matter by a desire to avoid committing dispa­
rate-impact discrimination, the record makes clear there 
is no support for the conclusion that respondents had an 
objective, substantial basis in evidence to find the tests 
inadequate.” Ibid.

The dissent advocates a different objective component of 
the governing standard. According to the dissent, the 
objective component should be whether the evidence pro­
vided “good cause” for the decision, post, at 19, and the



Cite as: 557 U. S .____(2009) 3

Alito, J., concurring

dissent argues—incorrectly, in my view—that no reason­
able juror could fail to find that such evidence was present 
here. But even if the dissent were correct on this point, I 
assume that the dissent would not countenance summary 
judgment for respondents if respondents’ professed con­
cern about disparate-impact litigation was simply a pre­
text. Therefore, the decision below, which sustained the 
entry of summary judgment for respondents, cannot be 
affirmed unless no reasonable jury could find that the 
City’s asserted reason for scrapping its test—concern 
about disparate-impact liability—was a pretext and that 
the City’s real reason was illegitimate, namely, the desire 
to placate a politically important racial constituency.

II
A

As initially described by the dissent, see post, at 2-12, 
the process by which the City reached the decision not to 
accept the test results was open, honest, serious, and 
deliberative. But even the District Court admitted that “a 
jury could rationally infer that city officials worked behind 
the scenes to sabotage the promotional examinations 
because they knew that, were the exams certified, the 
Mayor would incur the wrath of [Rev. Boise] Kimber and 
other influential leaders of New Haven’s African-American 
community.” 554 F. Supp. 2d 142, 162 (Conn. 2006), 
summarily affd, 530 F. 3d 87 (CA2 2008) (per curiam).

This admission finds ample support in the record. 
Reverend Boise Kimber, to whom the District Court re­
ferred, is a politically powerful New Haven pastor and a 
self-professed “ ‘kingmaker.’ ” App. to Pet. for Cert, in No. 
07-1428, p. 906a; see also id., at 909a. On one occasion, 
“[i]n front of TV cameras, he threatened a race riot during 
the murder trial of the black man arrested for killing 
white Yalie Christian Prince. He continues to call whites 
racist if they question his actions.” Id., at 931a.



4 RICCI v. DeSTEFANO

AlitO, J., concurring

Reverend Kimber’s personal ties with seven-term New 
Haven Mayor John DeStefano (Mayor) stretch back more 
than a decade. In 1996, for example, Mayor DeStefano 
testified for Rev. Kimber as a character witness when Rev. 
Kimber—then the manager of a funeral home—was prose­
cuted and convicted for stealing prepaid funeral expenses 
from an elderly woman and then lying about the matter 
under oath. See id., at 126a, 907a. “Reverend Kimber has 
played a leadership role in all of Mayor DeStefano’s politi­
cal campaigns, [and] is considered a valuable political 
supporter and vote-getter.” Id., at 126a. According to the 
Mayor’s former campaign manager (who is currently his 
executive assistant), Rev. Kimber is an invaluable political 
asset because “[h]e’s very good at organizing people and 
putting together field operations, as a result of his ties to 
labor, his prominence in the religious community and his 
long-standing commitment to roots.” Id., at 908a (internal 
quotation marks and alteration omitted).

In 2002, the Mayor picked Rev. Kimber to serve as the 
Chairman of the New Haven Board of Fire Commissioners 
(BFC), “despite the fact that he had no experience in the 
profession, fire administration, [or] municipal manage­
ment.” Id., at 127a; see also id., at 928a-929a. In that 
capacity, Rev. Kimber told firefighters that certain new 
recruits would not be hired because ‘“ they just have too 
many vowels in their name[s].’ ” Thanawala, New Haven 
Fire Panel Chairman Steps Down Over Racial Slur, Hart­
ford Courant, June 13, 2002, p. B2. After protests about 
this comment, Rev. Kimber stepped down as chairman of 
the BFC, ibid.; see also App. to Pet. for Cert, in No. 07- 
1428, at 929a, but he remained on the BFC and retained 
“a direct fine to the mayor,” id., at 816a.

Almost immediately after the test results were revealed 
in “early January” 2004, Rev. Kimber called the City’s 
Chief Administrative Officer, Karen Dubois-Walton, who 
“acts ‘on behalf of the Mayor.’” Id., at 221a, 812a. Dubois-



Cite as: 557 U. S .____(2009) 5

A l it o , J., concurring

Walton and Rev. Kimber met privately in her office be­
cause he wanted “to express his opinion” about the test 
results and “to have some influence” over the City’s re­
sponse. Id., at 815a-816a. As discussed in further detail 
below, Rev. Kimber adamantly opposed certification of the 
test results—a fact that he or someone in the Mayor’s 
office eventually conveyed to the Mayor. Id., at 229a.

B
On January 12, 2004, Tina Burgett (the director of the 

City’s Department of Human Resources) sent an e-mail to 
Dubois-Walton to coordinate the City’s response to the test 
results. Burgett wanted to clarify that the City’s executive 
officials would meet “sans the Chief, and that once we had 
a better fix on the next steps we would meet with the 
Mayor (possibly) and then the two Chiefs.” Id., at 446a. 
The “two Chiefs” are Fire Chief William Grant (who is 
white) and Assistant Fire Chief Ronald Dumas (who is 
African-American). Both chiefs believed that the test 
results should be certified. Id., at 228a, 817a. Petitioners 
allege, and the record suggests, that the Mayor and his 
staff colluded “sans the Chief[s]” because “the defendants 
did not want Grant’s or Dumas’ views to be publicly 
known; accordingly both men were prevented by the 
Mayor and his staff from making any statements regard­
ing the matter.” Id., at 228a.1

The next day, on January 13, 2004, Chad Legel, who 
had designed the tests, flew from Chicago to New Haven 
to meet with Dubois-Walton, Burgett, and Thomas Ude, 
the City’s corporate counsel. Id., at 179a. “Legel outlined 
the merits of the examination and why city officials should 
be confident in the validity of the results.” Ibid. But *

^ th ou gh  the dissent disputes it, see post, at 33-34, n. 17, the record 
certainly permits the inference that petitioners’ allegation is true. See 
App. to Pet. for Cert, in No. 07-1428, pp. 846a-851a (deposition of 
Dubois-W alton).



6 RICCI v. DeSTEFANO

A l ITO, J., concurring

according to Legel, Dubois-Walton was “argumentative” 
and apparently had already made up her mind that the 
tests were “ ‘discriminatory.’” Id., at 179a-180a. Again 
according to Legel, “[a] theme” of the meeting was “the 
political and racial overtones of what was going on in the 
City.” Id., at 181a. “Legel came away from the January 
13, 2004 meeting with the impression that defendants 
were already leaning toward discarding the examination 
results.” Id., at 180a.

On January 22, 2004, the Civil Service Board (CSB or 
Board) convened its first public meeting. Almost immedi­
ately, Rev. Kimber began to exert political pressure on the 
CSB. He began a loud, minutes-long outburst that re­
quired the CSB Chairman to shout him down and hold 
him out of order three times. See id., at 187a, 467a-468a; 
see also App. in No. 06-4996-cv (CA2), pp. A703-A705. 
Reverend Kimber protested the public meeting, arguing 
that he and the other fire commissioners should first be 
allowed to meet with the CSB in private. App. to Pet. for 
Cert, in No. 07-1428, at 188a.

Four days after the CSB’s first meeting, Mayor DeSte- 
fano’s executive aide sent an e-mail to Dubois-Walton, 
Burgett, and Ude. Id., at 190a. The message clearly 
indicated that the Mayor had made up his mind to oppose 
certification of the test results (but nevertheless wanted to 
conceal that fact from the public):

“I wanted to make sure we are all on the same page 
for this meeting tomorrow. . . . [LJet’s remember, that 
these folks are not against certification yet. So we 
can’t go in and tell them that is our position; we have 
to deliberate and arrive there as the fairest and most 
cogent outcome.” Ibid.

On February 5, 2004, the CSB convened its second 
public meeting. Reverend Kimber again testified and 
threatened the CSB with political recriminations if they



Cite as: 557 U. S .____(2009) 7

ALITO, J., concurring

voted to certify the test results:
“I look at this [Board] tonight. I look at three whites 
and one Hispanic and no blacks. . . .  I would hope that 
you would not put yourself in this type of position, a 
political ramification that may come back upon you as 
you sit on this [Board] and decide the future of a 
department and the future of those who are being 
promoted.

“(APPLAUSE).” Id., at 492a (emphasis added).
One of the CSB members “t[ook] great offense” because he 
believed that Rev. Kimber “considered] [him] a bigot 
because [his] face is white.” Id., at 496a. The offended 
CSB member eventually voted not to certify the test re­
sults. Id., at 586a-587a.

One of Rev. Kimber’s “friends and allies,” Lieutenant 
Gary Tinney, also exacerbated racial tensions before the 
CSB. Id., at 129a. After some firefighters applauded in 
support of certifying the test results, “Lt. Tinney ex­
claimed, ‘Listen to the Klansmen behind us.’” Id., at 225a.

Tinney also has strong ties to the Mayor’s office. See, 
e.g., id., at 129a-130a, 816a-817a. After learning that he 
had not scored well enough on the captain’s exam to earn 
a promotion, Tinney called Dubois-Walton and arranged a 
meeting in her office. Id., at 830a—831a, 836a. Tinney 
alleged that the white firefighters had cheated on their 
exams—an accusation that Dubois-Walton conveyed to the 
Board without first conducting an investigation into its 
veracity. Id., at 837a—838a; see also App. 164 (statement 
of CSB Chairman, noting the allegations of cheating). The 
allegation turned out to be baseless. App. to Pet. for Cert, 
in No. 07-1428, at 836a.

Dubois-Walton never retracted the cheating allegation, 
but she and other executive officials testified several times 
before the CSB. In accordance with directions from the



8 RICCI v. DeSTEFANO

A lito , J., concurring

Mayor’s office to make the CSB meetings appear delibera­
tive, see id., at 190a, executive officials remained publicly 
uncommitted about certification—while simultaneously 
“working] as a team” behind closed doors with the secre­
tary of the CSB to devise a pohtical message that would 
convince the CSB to vote against certification, see id., at 
447a. At the public CSB meeting on March 11, 2004, for 
example, Corporation Counsel Ude bristled at one board 
member’s suggestion that City officials were recommend­
ing against certifying the test results. See id., at 215a 
(“Attorney Ude took offense, stating, ‘Frankly, because I 
would never make a recommendation—I would not have 
made a recommendation like that’ ”). But within days of 
making that public statement, Ude privately told other 
members of the Mayor’s team “the ONLY way we get to a 
decision not to certify is” to focus on something other than 
“a big discussion re: adverse impact” law. Id., at 458a- 
459a.

As part of its effort to deflect attention from the specifics 
of the test, the City relied heavily on the testimony of Dr. 
Christopher Hornick, who is one of Chad Legel’s competi­
tors in the test-development business. Hornick never 
“studied] the test [that Legel developed] at length or in 
detail,” id., at 549a; see also id., at 203a, 553a, but Hor­
nick did review and rely upon literature sent to him by 
Burgett to criticize Legel’s test. For example, Hornick 
“noted in the literature that [Burgett] sent that the test 
was not customized to the New Haven Fire Department.” 
Id., at 551a. The Chairman of the CSB immediately cor­
rected Hornick. Id., at 552a (“Actually, it was, Dr. Hor­
nick”). Hornick also relied on newspaper accounts—again, 
sent to him by Burgett—pertaining to the controversy 
surrounding the certification decision. See id., at 204a, 
557a. Although Hornick again admitted that he had no 
knowledge about the actual test that Legel had developed 
and that the City had administered, see id., at 560a-561a,



Cite as: 557 U .S .____(2009) 9

ALITO, J., concurring

the City repeatedly relied upon Hornick as a testing 
“guru” and, in the CSB Chairman’s words, “the City ke[pt] 
quoting him as a person that we should rely upon more 
than anybody else [to conclude that there] is a better 
way—a better mousetrap.”2 App. in No. 06—4996-cv 
(CA2), at A1128. Dubois-Walton later admitted that the 
City rewarded Hornick for his testimony by hiring him to 
develop and administer an alternative test. App. to Pet. 
for Cert, in No. 07-1428, at 854a; see also id., at 562a- 
563a (Hornick’s plea for future business from the City on 
the basis of his criticisms of Legel’s tests).

At some point prior to the CSB’s public meeting on 
March 18, 2004, the Mayor decided to use his executive 
authority to disregard the test results—even if the CSB 
ultimately voted to certify them. Id., at 819a-820a. Ac­
cordingly, on the evening of March 17th, Dubois-Walton 
sent an e-mail to the Mayor, the Mayor’s executive assis­
tant, Burgett, and attorney Ude, attaching two alternative 
press releases. Id., at 457a. The first would be issued if 
the CSB voted not to certify the test results; the second 
would be issued (and would explain the Mayor’s invocation 
of his executive authority) if the CSB voted to certify the 
test results. Id., at 217a-218a, 590a-591a, 819a-820a. 
Half an hour after Dubois-Walton circulated the alterna­
tive drafts, Burgett replied: “[W]ell, that seems to say it 
all. Let’s hope draft #2 hits the shredder tomorrow nite.” 
Id., at 457a.

2 The City’s heavy reliance on Hornick’s testimony makes the two 
chiefs’ silence all the more striking. See supra, at 5. While Hornick 
knew little or nothing about the tests he criticized, the two chiefs were 
involved “during the lengthy process that led to the devising of the 
administration of these exams,” App. to Pet. for Cert, in No. 07-1428, 
at 847a, including “collaborating with City officials on the extensive job 
analyses that were done,” “selection of the oral panelists,” and selection 
of “the proper content and subject matter of the exams,” id., at 847a- 
848a.



10 RICCI v. DeSTEFANO

A l it O, J., concurring

Soon after the CSB voted against certification, Mayor 
DeStefano appeared at a dinner event and “took credit for 
the scu[tt]ling of the examination results.” Id., at 230a.

C
Taking into account all the evidence in the summary 

judgment record, a reasonable jury could find the follow­
ing. Almost as soon as the City disclosed the racial 
makeup of the list of firefighters who scored the highest on 
the exam, the City administration was lobbied by an 
influential community leader to scrap the test results, and 
the City administration decided on that course of action 
before making any real assessment of the possibility of a 
disparate-impact violation. To achieve that end, the City 
administration concealed its internal decision but 
worked—as things turned out, successfully—to persuade 
the CSB that acceptance of the test results would be ille­
gal and would expose the City to disparate-impact liabil­
ity. But in the event that the CSB was not persuaded, the 
Mayor, wielding ultimate decisionmaking authority, was 
prepared to overrule the CSB immediately. Taking this 
view of the evidence, a reasonable jury could easily find 
that the City’s real reason for scrapping the test results 
was not a concern about violating the disparate-impact 
provision of Title VII but a simple desire to please a politi­
cally important racial constituency. It is noteworthy that 
the Solicitor General—whose position on the principal 
legal issue in this case is largely aligned with the dis­
sent—concludes that “[n] either the district court nor the 
court of appeals . . . adequately considered whether, view­
ing the evidence in the light most favorable to petitioners, 
a genuine issue of material fact remained whether respon­
dents’ claimed purpose to comply with Title VII was a 
pretext for intentional racial discrimination . . . .” Brief 
for United States as Amicus Curiae 6; see also id., at 32- 
33.



Cite as: 557 U .S .____(2009) 11

A l it o , J., concurring 

111
I will not comment at length on the dissent’s criticism of 

my analysis, but two points require a response.
The first concerns the dissent’s statement that I 

“equat[e] political considerations with unlawful discrimi­
nation.” Post, at 36. The dissent misrepresents my posi­
tion: I draw no such equation. Of course “there are many 
ways in which a politician can attempt to win over a con­
stituency—including a racial constituency—without en­
gaging in unlawful discrimination.” Post, at 36-37. But— 
as I assume the dissent would agree—there are some 
things that a public official cannot do, and one of those is 
engaging in intentional racial discrimination when mak­
ing employment decisions.

The second point concerns the dissent’s main argu­
ment—that efforts by the Mayor and his staff to scuttle 
the test results are irrelevant because the ultimate deci­
sion was made by the CSB. According to the dissent, 
“[t]he relevant decision was made by the CSB,” post, at 34, 
and there is “scant cause to suspect” that anything done 
by the opponents of certification, including the Mayor and 
his staff, “prevented the CSB from evenhandedly assess­
ing the reliability of the exams and rendering an inde­
pendent, good-faith decision on certification,” post, at 36.

Adoption of the dissent’s argument would implicitly 
decide an important question of Title VII law that this 
Court has never resolved—the circumstances in which an 
employer may be held liable based on the discriminatory 
intent of subordinate employees who influence but do not 
make the ultimate employment decision. There is a large 
body of court of appeals case law on this issue, and these 
cases disagree about the proper standard. See EEOC v. 
BCI Coca-Cola Bottling Co. of Los Angeles, 450 F. 3d 476, 
484-488 (CA10 2006) (citing cases and describing the 
approaches taken in different Circuits). One standard is 
whether the subordinate “exerted influenc[e] over the



12 RICCI v. DeSTEFANO

A l it o , J ., concurring

titular decisionmaker.” Russell v. McKinney Hosp. Ven­
ture, 235 F. 3d 219, 227 (CA5 2000); see also Poland v. 
Chertoff, 494 F. 3d 1174, 1182 (CA9 2007) (A subordinate’s 
bias is imputed to the employer where the subordinate 
“influenced or was involved in the decision or decision­
making process”). Another is whether the discriminatory 
input “caused the adverse employment action.” See BCI 
Coca-Cola Bottling Co. of Los Angeles, supra, at 487.

In the present cases, a reasonable jury could certainly 
find that these standards were met. The dissent makes 
much of the fact that members of the CSB swore under 
oath that their votes were based on the good-faith belief 
that certification of the results would have violated federal 
law. See post, at 34. But the good faith of the CSB mem­
bers would not preclude a finding that the presentations 
engineered by the Mayor and his staff influenced or 
caused the CSB decision.

The least employee-friendly standard asks only whether 
“the actual decisionmaker” acted with discriminatory 
intent, see Hill v. Lockheed Martin Logistics Management, 
Inc., 354 F. 3d 277, 291 (CA4 2004) (en banc), and it is 
telling that, even under this standard, summary judgment 
for respondents would not be proper. This is so because a 
reasonable jury could certainly find that in New Haven, 
the Mayor—not the CSB—wielded the final decisionmak­
ing power. After all, the Mayor claimed that authority 
and was poised to use it in the event that the CSB decided 
to accept the test results. See supra, at 9. If the Mayor 
had the authority to overrule a CSB decision accepting the 
test results, the Mayor also presumably had the authority 
to overrule the CSB’s decision rejecting the test results. In 
fight of the Mayor’s conduct, it would be quite wrong to 
throw out petitioners’ case on the ground that the CSB 
was the ultimate decisionmaker.



Cite as: 557 U. S .____(2009) 13

ALITO, J., concurring
*

Petitioners are firefighters who seek only a fair chance 
to move up the ranks in their chosen profession. In order 
to qualify for promotion, they made personal sacrifices. 
Petitioner Frank Ricci, who is dyslexic, found it necessary 
to “hir[e] someone, at considerable expense, to read onto 
audiotape the content of the books and study materials.” 
App. to Pet. for Cert, in No. 07-1428, at 169a. He “studied 
an average of eight to thirteen hours a day . . . ,  even 
listening to audio tapes while driving his car.” Ibid. 
Petitioner Benjamin Vargas, who is Hispanic, had to “give 
up a part-time job,” and his wife had to “take leave from 
her own job in order to take care of their three young 
children while Vargas studied.” Id., at 176a. “Vargas 
devoted countless hours to study . . ., missed two of his 
children’s birthdays and over two weeks of vacation time,” 
and “incurred significant financial expense” during the 
three-month study period. Id., at 176a-177a.

Petitioners were denied promotions for which they 
qualified because of the race and ethnicity of the firefight­
ers who achieved the highest scores on the City’s exam. 
The District Court threw out their case on summary 
judgment, even though that court all but conceded that a 
jury could find that the City’s asserted justification was 
pretextual. The Court of Appeals then summarily af-

s that petitioners’ situation is “unfor- 
y “understandably attract this Court’s 

sympathy.” Post, at 1, 39. But “sympathy” is not what 
petitioners have a right to demand. What they have a 
right to demand is evenhanded enforcement of the law—of 
Title VII’s prohibition against discrimination based on 
race. And that is what, until today’s decision, has beeh 
denied them.



Cite as: 557 U. S .____(2009) 1

GlNSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

Nos. 07-1428 and 08-328

FRANK RICCI, ET AL., PETITIONERS
07- 1428 v.

JOHN DESTEFANO ET AL.

FRANK RICCI, ET AL., PETITIONERS
08— 328 v.

JOHN DESTEFANO ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE SECOND CIRCUIT

[June 29, 2009]

Justice Ginsburg , with whom Justice Stevens , Ju s­
tice SOUTER, and JUSTICE BREYER join, dissenting.

In assessing claims of race discrimination, “[c] on text 
matters.” Grutter v. Bollinger, 539 U. S. 306, 327 (2003). 
In 1972, Congress extended Title VII of the Civil Rights 
Act of 1964 to cover public employment. At that time, 
municipal fire departments across the country, including 
New Haven’s, pervasively discriminated against minori­
ties. The extension of Title VII to cover jobs in firefighting 
effected no overnight change. It took decades of persistent 
effort, advanced by Title VII litigation, to open firefighting 
posts to members of racial minorities.

The white firefighters who scored high on New Haven’s 
promotional exams understandably attract this Court’s 
sympathy. But they had no vested right to promotion. 
Nor have other persons received promotions in preference 
to them. New Haven maintains that it refused to certify 
the test results because it believed, for good cause, that it 
would be vulnerable to a Title VII disparate-impact suit if 
it relied on those results. The Court today holds that New



2 RICCI v. DeSTEFANO

GlNSBUEG, J., dissenting

Haven has not demonstrated “a strong basis in evidence” 
for its plea. Ante, at 2. In so holding, the Court pretends 
that “[t]he City rejected the test results solely because the 
higher scoring candidates were white.” Ante, at 20. That 
pretension, essential to the Court’s disposition, ignores 

j substantial evidence of multiple flaws in the tests New 
j Haven used. The Court similarly fails to acknowledge the 
better tests used in other cities, which have yielded less 
racially skewed outcomes.1

By order of this Court, New Haven, a city in which 
African-Americans and Hispanics account for nearly 60 
percent of the population, must today be served—as it was 
in the days of undisguised discrimination—by a fire de­
partment in which members of racial and ethnic minori­
ties are rarely seen in command positions. In arriving at 
its order, the Court barely acknowledges the pathmarking 
decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971), 
which explained the centrality of the disparate-impact 
concept to effective enforcement of Title VII. The Court’s 
order and opinion, I anticipate, will not have staying 
power.

I
A

The Court’s recitation of the facts leaves out important 
parts of the story. Firefighting is a profession in which the 
legacy of racial discrimination casts an especially long 
shadow. In extending Title VII to state and local govern­
ment employers in 1972, Congress took note of a U. S.

1 Never mind the flawed tests New Haven used and the better selec­
tion methods used elsewhere, JUSTICE A l it o ’s concurring opinion urges. 
Overriding all else, racial politics, fired up by a strident African- 
American pastor, were at work in New Haven. See ante, at 4-9. Even 
a detached and disinterested observer, however, would have every 
reason to ask: Why did such racially skewed results occur in New 
Haven, when better tests likely would have produced less dispropor­
tionate results?



Cite as: 557 U. S .____(2009) 3

GlNSBURG, J., dissenting

Commission on Civil Rights (USCCR) report finding racial 
discrimination in municipal employment even “more 
pervasive than in the private sector.” H. R. Rep. No. 92- 
238, p. 17 (1971). According to the report, overt racism 
was partly to blame, but so too was a failure on the part of 
municipal employers to apply merit-based employment 
principles. In making hiring and promotion decisions, 
public employers often “rel[ied] on criteria unrelated to job 
performance,” including nepotism or political patronage. 
118 Cong. Rec. 1817 (1972). Such flawed selection meth­
ods served to entrench preexisting racial hierarchies. The 
USCCR report singled out police and fire departments for 
having “[bjarriers to equal employment . . . greater . . . 
than in any other area of State or local government,” with 
African-Americans “holding] almost no positions in the 
officer ranks.” Ibid. See also National Commission on 
Fire Prevention and Control, America Burning 5 (1973) 
(“Racial minorities are under-represented in the fire de­
partments in nearly every community in which they 
five.”).

The city of New Haven (City) was no exception. In the 
early 1970’s, African-Americans and Hispanics composed 
30 percent of New Haven’s population, but only 3.6 per­
cent of the City’s 502 firefighters. The racial disparity in 
the officer ranks was even more pronounced: “[0]f the 107 
officers in the Department only one was black, and he held 
the lowest rank above private.” Firebird Soc. of New 
Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 
457, 460 (Conn. 1975).

Following a lawsuit and settlement agreement, see ibid., 
the City initiated efforts to increase minority representa­
tion in the New Haven Fire Department (Department). 
Those litigation-induced efforts produced some positive 
change. New Haven’s population includes a greater pro­
portion of minorities today than it did in the 1970’s: 
Nearly 40 percent of the City’s residents are African-



4 RICCI v. DeSTEFANO

Ginsburg, J., dissenting

American and more than 20 percent are Hispanic. Among 
entry-level firefighters, minorities are still underrepre­
sented, but not starkly so. As of 2003, African-Americans 
and Hispanics constituted 30 percent and 16 percent of the 
City’s firefighters, respectively. In supervisory positions, 
however, significant disparities remain. Overall, the 
senior officer ranks (captain and higher) are nine percent 
African-American and nine percent Hispanic. Only one of 
the Department’s 21 fire captains is African-American. 
See App. in No. 06—4996—cv (CA2), p. A1588 (hereinafter 
CA2 App.). It is against this backdrop of entrenched 
inequality that the promotion process at issue in this 
litigation should be assessed.

B
By order of its charter, New Haven must use competi­

tive examinations to fill vacancies in fire officer and other 
civil-service positions. Such examinations, the City’s civil 
service rules specify, “shall be practical in nature, shall 
relate to matters which fairly measure the relative fitness 
and capacity of the applicants to discharge the duties of 
the position which they seek, and shall take into account 
character, training, experience, physical and mental fit­
ness.” Id., at A331. The City may choose among a variety 
of testing methods, including written and oral exams and 
“ [performance tests to demonstrate skill and ability in 
performing actual work.” Id., at A332.

New Haven, the record indicates, did not closely con­
sider what sort of “practical” examination would “fa irly  
measure the relative fitness and capacity of the applicants 
to discharge the duties” of a fire officer. Instead, the City 
simply adhered to the testing regime outlined in its two- 
decades-old contract with the local firefighters’ union: a 
written exam, which would account for 60 percent of an 
applicant’s total score, and an oral exam, which would 
account for the remaining 40 percent. Id., at A1045. In



Cite as: 557 U. S .____(2009) 5

GlNSBURG, J., dissenting

soliciting bids from exam development companies, New 
Haven made clear that it would entertain only “proposals 
that include a written component that will be weighted at 
60%, and an oral component that will be weighted at 
40%.” Id., at A342. Chad Legel, a representative of the 
winning bidder, Industrial/Organizational Solutions, Inc. 
(IOS), testified during his deposition that the City never 
asked whether alternative methods might better measure 
the qualities of a successful fire officer, including leader­
ship skills and command presence. See id., at A522 (“I 
was under contract and had responsibility only to create 
the oral interview and the written exam.”).

Pursuant to New Haven’s specifications, IOS developed 
and administered the oral and written exams. The results 
showed significant racial disparities. On the lieutenant 
exam, the pass rate for African-American candidates was 
about one-half the rate for Caucasian candidates; the pass 
rate for Hispanic candidates was even lower. On the 
captain exam, both African-American and Hispanic candi­
dates passed at about half the rate of their Caucasian 
counterparts. See App. 225-226. More striking still, 
although nearly half of the 77 lieutenant candidates were 
African-American or Hispanic, none would have been 
eligible for promotion to the eight positions then vacant. 
The highest scoring African-American candidate ranked 
13th; the top Hispanic candidate was 26th. As for the 
seven then-vacant captain positions, two Hispanic candi­
dates would have been eligible, but no African-Americans. 
The highest scoring African-American candidate ranked 
15th. See id., at 218—219.

These stark disparities, the Court acknowledges, suf­
ficed to state a prima facie case under Title VU’s dispa­
rate-impact provision. See ante, at 27 (“The pass rates of 
minorities . . . f[e]ll well below the 80-percent standard set 
by the [Equal Employment Opportunity Commission 
(EEOC)] to implement the disparate-impact provision of



6 RICCI u. DeSTEFANO

G in s b u e g , J., dissenting

Title VII.”). New Haven thus had cause for concern about 
the prospect of Title VII litigation and liability. City 
officials referred the matter to the New Haven Civil Ser­
vice Board (CSB), the entity responsible for certifying the 
results of employment exams.

Between January and March 2004, the CSB held five 
public meetings to consider the proper course. At the first 
meeting, New Haven’s Corporation Counsel, Thomas Ude, 
described the legal standard governing Title VII disparate- 
impact claims. Statistical imbalances alone, Ude correctly 
recognized, do not give rise to liability. Instead, presented 
with a disparity, an employer “has the opportunity and the 
burden of proving that the test is job-related and consis­
tent with business necessity.” CA2 App. A724. A Title VII 
plaintiff may attempt to rebut an employer’s showing of 
job-relatedness and necessity by identifying alternative 
selection methods that would have been at least as valid 
but with “less of an adverse or disparate or discriminatory 
effect.” Ibid. See also id., at A738. Accordingly, the CSB 
Commissioners understood, their principal task was to 
decide whether they were confident about the reliability of 
the exams: Had the exams fairly measured the qualities of 
a successful fire officer despite their disparate results? 
Might an alternative examination process have identified 
the most qualified candidates without creating such sig­
nificant racial imbalances?

Seeking a range of input on these questions, the CSB 
heard from test takers, the test designer, subject-matter 
experts, City officials, union leaders, and community 
members. Several candidates for promotion, who did not 
yet know their exam results, spoke at the CSB’s first two 
meetings. Some candidates favored certification. The 
exams, they emphasized, had closely tracked the assigned 
study materials. Having invested substantial time and 
money to prepare themselves for the test, they felt it 
would be unfair to scrap the results. See, e.g., id., at



Cite as: 557 U. S .____(2009) 7

GlNSBURG, J., dissenting

A772-A773, A785-A789.
Other firefighters had a different view. A number of the 

exam questions, they pointed out, were not germane to 
New Haven’s practices and procedures. See, e.g., id., at 
A774-A784. At least two candidates opposed to certifica­
tion noted unequal access to study materials. Some indi­
viduals, they asserted, had the necessary books even 
before the syllabus was issued. Others had to invest 
substantial sums to purchase the materials and “wait a 
month and a half for some of the books because they were 
on back-order.” Id., at A858. These disparities, it was 
suggested, fell at least in part along racial fines. While 
many Caucasian applicants could obtain materials and 
assistance from relatives in the fire service, the over­
whelming majority of minority applicants were “first- 
generation firefighters” without such support networks. 
See id., at A857-A861, A886-A887.

A representative of the Northeast Region of the Interna­
tional Association of Black Professional Firefighters, 
Donald Day, also spoke at the second meeting. Statistical 
disparities, he told the CSB, had been present in the 
Department’s previous promotional exams. On earlier 
tests, however, a few minority candidates had fared well 
enough to earn promotions. Id., at A828. See also App. 
218-219. Day contrasted New Haven’s experience with 
that of nearby Bridgeport, where minority firefighters held 
one-third of lieutenant and captain positions. Bridgeport, 
Day observed, had once used a testing process similar to 
New Haven’s, with a written exam accounting for 70 
percent of an applicant’s score, an oral exam for 25 per­
cent, and seniority for the remaining five percent. CA2 
App. A830. Bridgeport recognized, however, that the oral 
component, more so than the written component, ad­
dressed the sort of “real-life scenarios” fire officers encoun­
ter on the job. Id., at A832. Accordingly, that city 
“changed the relative weights” to give primacy to the oral



8 RICCI v. DeSTEFANO

GlNSBUEG, J., dissenting

exam. Ibid. Since that time, Day reported, Bridgeport 
had seen minorities “fairly represented” in its exam re­
sults. Ibid.

The CSB’s third meeting featured IOS representative 
Legel, the leader of the team that had designed and ad­
ministered the exams for New Haven. Several City offi­
cials also participated in the discussion. Legel described 
the exam development process in detail. The City, he 
recounted, had set the “parameters” for the exams, specifi­
cally, the requirement of written and oral components 
with a 60/40 weighting. Id., at A923, A974. For security 
reasons, Department officials had not been permitted to 
check the content of the questions prior to their admini­
stration. Instead, IOS retained a senior fire officer from 
Georgia to review the exams “for content and fidelity to 
the source material.” Id., at A936. Legel defended the 
exams as “facially neutral,” and stated that he “would 
stand by the[ir] validity.” Id., at A962. City officials did 
not dispute the neutrality of IOS’s work. But, they cau­
tioned, even if individual exam questions had no intrinsic 
bias, the selection process as a whole may nevertheless 
have been deficient. The officials urged the CSB to consult 
with experts about the “larger picture.” Id., at A1012.

At its fourth meeting, CSB solicited the views of three 
individuals with testing-related expertise. Dr. Christo­
pher Hornick, an industrial/organizational psychology 
consultant with 25 years’ experience with police and fire­
fighter testing, described the exam results as having 
“relatively high adverse impact.” Id., at A1028. Most of 
the tests he had developed, Hornick stated, exhibited 
“significantly and dramatically less adverse impact.” Id., 
at A1029. Hornick downplayed the notion of “facial neu­
trality.” It was more important, he advised the CSB, to 
consider “the broader issue of how your procedures and 
your rules and the types of tests that you are using are 
contributing to the adverse impact.” Id., at A1038.



Cite as: 557 U. S .____(2009) 9

G in sb u r g , J., dissenting

Specifically, Hornick questioned New Haven’s union- 
prompted 60/40 written/oral examination structure, noting 
the availability of “different types of testing procedures 
that are much more valid in terms of identifying the best 
potential supervisors in [the] fire department.” Id., at 
A1032. He suggested, for example, “an assessment center 
process, which is essentially an opportunity for candidates 
. . .  to demonstrate how they would address a particular 
problem as opposed to just verbally saying it or identifying 
the correct option on a written test.” Id., at A1039-A1040. 
Such selection processes, Hornick said, better “identiffy] 
the best possible people” and “demonstrate dramatically 
less adverse impacts.” Ibid. Hornick added:

“I’ve spoken to at least 10,000, maybe 15,000 fire­
fighters in group settings in my consulting practice 
and I have never one time ever had anyone in the fire 
service say to me, ‘Well, the person who answers— 
gets the highest score on a written job knowledge, 
multiple-guess test makes the best company officer.’ 
We know that it’s not as valid as other procedures 
that exist.” Id., at A1033.

See also id., at A1042-A1043 (“I think a person’s leader­
ship skills, their command presence, their interpersonal 
skills, their management skills, their tactical skills could 
have been identified and evaluated in a much more appro­
priate way.”).

Hornick described the written test itself as “reasonably 
good,” id., at A1041, but he criticized the decision not to 
allow Department officials to check the content. According 
to Hornick, this “inevitably” led to “testing] for processes 
and procedures that don’t necessarily match up into the 
department.” Id., at A1034-A1035. He preferred “experts 
from within the department who have signed confidential­
ity agreements . . .  to make sure that the terminology and 
equipment that’s being identified from standardized read-



10 RICCI v. DeSTEFANO

GlNSBUEG, J., dissenting

ing sources apply to the department.” Id., at A1035.
Asked whether he thought the City should certify the 

results, Hornick hedged: “There is adverse impact in the 
test. That will be identified in any proceeding that you 
have. You will have industrial psychology experts, if it 
goes to court, on both sides. And it will not be a pretty or 
comfortable position for anyone to be in.” Id., at A1040- 
A1041. Perhaps, he suggested, New Haven might certify 
the results but immediately begin exploring “alternative 
ways to deal with these issues” in the future. Id., at 
A1041.

The two other witnesses made relatively brief appear­
ances. Vincent Lewis, a specialist with the Department of 
Homeland Security and former fire officer in Michigan, 
believed the exams had generally tested relevant material, 
although he noted a relatively heavy emphasis on ques­
tions pertaining to being an “apparatus driver.” He sug­
gested that this may have disadvantaged test takers “who 
had not had the training or had not had an opportunity to 
drive the apparatus.” Id., at A1051. He also urged the 
CSB to consider whether candidates had, in fact, enjoyed 
equal access to the study materials. Ibid. Cf. supra, at 7.

Janet Helms, a professor of counseling psychology at 
Boston College, observed that two-thirds of the incumbent 
fire officers who submitted job analyses to IOS during the 
exam design phase were Caucasian. Members of different 
racial groups, Helms told the CSB, sometimes do their jobs 
in different ways, “often because the experiences that are 
open to white male firefighters are not open to members of 
these other under-represented groups.” CA2 App. A1063- 
A1064. The heavy reliance on job analyses from white 
firefighters, she suggested, may thus have introduced an 
element of bias. Id., at A1063.

The CSB’s fifth and final meeting began with state­
ments from City officials recommending against certifica­
tion. Ude, New Haven’s counsel, repeated the applicable



Cite as: 557 U. S .____(2009) 11

G in sb u r g , J., dissenting  

disparate-impact standard:
“[A] finding of adverse impact is the beginning, not 
the end, of a review of testing procedures. Where a 
procedure demonstrates adverse impact, you look to 
how closely it is related to the job that you’re looking 
to fill and you also look at whether there are other 
ways to test for those qualities, those traits, those po­
sitions that are equally valid with less adverse im­
pact.” Id., at A1100-A1101.

New Haven, Ude and other officials asserted, would be 
vulnerable to Title VII liability under this standard. Even 
if the exams were “facially neutral,” significant doubts had 
been raised about whether they properly assessed the key 
attributes of a successful fire officer. Id., at A1103. See 
also id., at A1125 (“Upon close reading of the exams, the 
questions themselves would appear to test a candidate’s 
ability to memorize textbooks but not necessarily to iden­
tify solutions to real problems on the fire ground.”). More­
over, City officials reminded the CSB, Hornick and others 
had identified better, less discriminatory selection meth- 
ods-such as assessment centers or exams with a more 
heavily weighted oral component. Id., at A1108-A1109, 
A1129-A1130.

After giving members of the pubhc a final chance to 
weigh in, the CSB voted on certification, dividing 2 to 2. 
By rule, the result was noncertification. Voting no, Com­
missioner Webber stated, “I originally was going to vote to 
certify. . . . But I’ve heard enough testimony here to give 
me great doubts about the test itself and . . . some of the 
procedures. And I believe we can do better.” Id., at 
A1157. Commissioner Tirado likewise concluded that the 
“flawed” testing process counseled against certification. 
Id., at A1158. Chairman Segaloff and Commissioner 
Caplan voted to certify. According to Segaloff, the testi­
mony had not “compelled [him] to say this exam was not



12 RICCI v. DeSTEFANO

GlNSBURG, J., dissenting

job-related,” and he was unconvinced that alternative 
selection processes would be “less discriminatory.” Id., at 
A1159-A1160. Both Segalhoff and Caplan, however, 
urged the City to undertake civil service reform. Id., at 
A1150-A1154.

C
Following the CSB’s vote, petitioners—17 white fire­

fighters and one Hispanic firefighter, all of whom had high 
marks on the exams—filed suit in the United States Dis­
trict Court for the District of Connecticut. They named as 
defendants—respondents here—the City, several City 
officials, a local political activist, and the two CSB mem­
bers who voted against certifying the results. By opposing 
certification, petitioners alleged, respondents had dis­
criminated against them in violation of Title VTI’s dispa­
rate-treatment provision and the Fourteenth Amend­
ment’s Equal Protection Clause. The decision not to 
certify, respondents answered, was a lawful effort to com­
ply with Title VU’s disparate-impact provision and thus 
could not have run afoul of Title VIPs prohibition of dispa­
rate treatment. Characterizing respondents’ stated ra­
tionale as a mere pretext, petitioners insisted that New 
Haven would have had a solid defense to any disparate- 
impact suit.

In a decision summarily affirmed by the Court of Ap­
peals, the District Court granted summary judgment for 
respondents. 554 F. Supp. 2d 142 (Conn. 2006), affd, 530 
F. 3d 87 (CA2 2008) (per curiam). Under Second Circuit 
precedent, the District Court explained, “the intent to 
remedy the disparate impact” of a promotional exam “is 
not equivalent to an intent to discriminate against non­
minority applicants.” 554 F. Supp. 2d, at 157 (quoting 
Hayden v. County of Nassau, 180 F. 3d 42, 51 (CA2 1999)). 
Rejecting petitioners’ pretext argument, the court ob­
served that the exam results were sufficiently skewed “to



Cite as: 557 U. S .____(2009) 13

GlNSBURG, J., dissenting

make out a prima facie case of discrimination” under Title 
VIPs disparate-impact provision. 554 F. Supp. 2d, at 158. 
Had New Haven gone forward with certification and been 
sued by aggrieved minority test takers, the City would 
have been forced to defend tests that were presumptively 
invalid. And, as the CSB testimony of Hornick and others 
indicated, overcoming that presumption would have been 
no easy task. Id., at 153-156. Given Title VU’s preference 
for voluntary compliance, the court held, New Haven could 
lawfully discard the disputed exams even if the City had 
not definitively “pinpoint[ed]” the source of the disparity 
and “ha[d] not yet formulated a better selection method.” 
Id., at 156.

Respondents were no doubt conscious of race during 
their decisionmaking process, the court acknowledged, but 
this did not mean they had engaged in racially disparate 
treatment. The conclusion they had reached and the 
action thereupon taken were race-neutral in this sense: 
“[A]ll the test results were discarded, no one was pro­
moted, and firefighters of every race will have to partici­
pate in another selection process to be considered for 
promotion.” Id., at 158. New Haven’s action, which gave 
no individual a preference, “was ‘simply not analogous to a 
quota system or a minority set-aside where candidates, on 
the basis of their race, are not treated uniformly.’ ” Id., at 
157 (quoting Hayden, 180 F. 3d, at 50). For these and 
other reasons, the court also rejected petitioners’ equal 
protection claim.

II
A

Title VII became effective in July 1965. Employers 
responded to the law by eliminating rules and practices 
that explicitly barred racial minorities from “white” jobs. 
But removing overtly race-based job classifications did not 
usher in genuinely equal opportunity. More subtle—and



14 RICCI v. DeSTEFANO

G in sb u k g , J., dissenting

sometimes unconscious—forms of discrimination replaced 
once undisguised restrictions.

In Griggs v. Duke Power Co., 401 U. S. 424 (1971), this 
Court responded to that reality and supplied important 
guidance on Title VII’s mission and scope. Congress, the 
landmark decision recognized, aimed beyond “disparate 
treatment”; it targeted “disparate impact” as well. Title 
VII’s original text, it was plain to the Court, “proscribe [d] 
not only overt discrimination but also practices that are 
fair in form, but discriminatory in operation.” Id., at 431.2 
Only by ignoring Griggs could one maintain that inten­
tionally disparate treatment alone was Title VU’s “origi­
nal, foundational prohibition,” and disparate impact a 
mere afterthought. Cf. ante, at 21.

Griggs addressed Duke Power Company’s policy that 
applicants for positions, save in the company’s labor de­
partment, be high school graduates and score satisfacto­
rily on two professionally prepared aptitude tests. 
“[T]here was no showing of a discriminatory purpose in 
the adoption of the diploma and test requirements.” 401 
U. S., at 428. The policy, however, “operated to render 
ineligible a markedly disproportionate number of [African- 
Americans].” Id., at 429. At the time of the litigation, in

2 The Court’s disparate-impact analysis rested on two provisions of 
Title VII: §703(a)(2), which made it unlawful for an employer “to limit, 
segregate, or classify his employees in any way which would deprive or 
tend to deprive any individual of employment opportunities or other­
wise adversely affect his status as an employee, because of such indi­
vidual’s race, color, religion, sex, or national origin”; and §703(h), which 
permitted employers “to act upon the results of any professionally 
developed ability test provided that such test, its administration or 
action upon the results is not designed, intended or used to discrimi­
nate because of race, color, religion, sex or national origin.” Griggs v. 
Duke Power Co., 401 U. S. 424, 426, n. 1 (1971) (quoting 78 Stat. 255, 
42 U. S. C. §2000e-2(a)(2), (h) (1964 ed.)). See also 401 U. S., at 433- 
436 (explaining that §703(h) authorizes only tests that are “demonstra­
bly a reasonable measure of job performance”).



Cite as: 557 U. S .____(2009) 15

G in sb u r g , J., dissenting

North Carolina, where the Duke Power plant was located, 
34 percent of white males, but only 12 percent of African- 
American males, had high school diplomas. Id., at 430, 
n. 6. African-Americans also failed the aptitude tests at a 
significantly higher rate than whites. Ibid. Neither re­
quirement had been “shown to bear a demonstrable rela­
tionship to successful performance of the jobs for which it 
was used.” Id., at 431.

The Court unanimously held that the company’s di­
ploma and test requirements violated Title VII. “[T]o 
achieve equality of employment opportunities,” the Court 
comprehended, Congress “directed the thrust of the Act to 
the consequences of employment practices, not simply the 
motivation.” Id., at 429, 432. That meant “unnecessary 
barriers to employment” must fall, even if “neutral on 
their face” and “neutral in terms of intent.” Id., at 430, 
431. “The touchstone” for determining whether a test or 
qualification meets Title VU’s measure, the Court said, is 
not “good intent or the absence of discriminatory intent”; it 
is “business necessity.” Id., at 431, 432. Matching proce­
dure to substance, the Griggs Court observed, Congress 
“placed on the employer the burden of showing that any 
given requirement . . .  ha [s] a manifest relationship to the 
employment in question.” Id., at 432.

In Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975), 
the Court, again without dissent, elaborated on Griggs. 
When an employment test “select[s] applicants for hire or 
promotion in a racial pattern significantly different from 
the pool of applicants,” the Court reiterated, the employer 
must demonstrate a “manifest relationship” between test 
and job. 422 U. S., at 425. Such a showing, the Court 
cautioned, does not necessarily mean the employer pre­
vails: “ [I] t remains open to the complaining party to show 
that other tests or selection devices, without a similarly 
undesirable racial effect, would also serve the employer’s 
legitimate interest in ‘efficient and trustworthy workman-



16 RICCI v. DeSTEFANO

GlNSBURG, J., dissenting

ship.’ ” Ibid.
Federal trial and appellate courts applied Griggs and 

Albemarle to disallow a host of hiring and promotion 
practices that “operate [d] as ‘built in headwinds’ for mi­
nority groups.” Griggs, 401 U. S., at 432. Practices dis­
criminatory in effect, courts repeatedly emphasized, could 
be maintained only upon an employer’s showing of “an 
overriding and compelling business purpose.” Chrisner v. 
Complete Auto Transit, Inc., 645 F. 2d 1251, 1261, n. 9 
(CA6 1981).3 That a practice served “legitimate manage­
ment functions” did not, it was generally understood, 
suffice to establish business necessity. Williams v. Colo­
rado Springs, Colo., School Dist., 641 F. 2d 835, 840-841 
(CA10 1981) (internal quotation marks omitted). Among 
selection methods cast aside for lack of a “manifest rela­
tionship” to job performance were a number of written

3 See also Dothard v. Rawlinson, 433 U. S. 321, 332, n. 14 (1977) (“a 
discriminatory employment practice must be shown to be necessary to 
safe and efficient job performance to survive a Title VII challenge”); 
Williams v. Colorado Springs, Colo., School Dist., 641 F. 2d 835, 840- 
841 (CA10 1981) (“The term ‘necessity’ connotes that the exclusionary 
practice must be shown to be of great importance to job performance.”); 
Kirby v. Colony Furniture Co., 613 F. 2d 696, 705, n. 6 (CA8 1980) (“the 
proper standard for determining whether ‘business necessity’ justifies a 
practice which has a racially discriminatory result is not whether it is 
justified by routine business considerations but whether there is a 
compelling need for the employer to maintain that practice and 
whether the employer can prove there is no alternative to the chal­
lenged practice”); Pettway v. American Cast Iron Pipe Co., 494 F. 2d 
211, 244, n. 87 (CA5 1974) (“this doctrine of business necessity ..  . 
connotes an irresistible demand” (internal quotation marks omitted)); 
United States v. Bethlehem Steel Corp., 446 F. 2d 652, 662 (CA2 1971) 
(an exclusionary practice “must not only directly foster safety and 
efficiency of a plant, but also be essential to those goals”); Robinson v. 
Lorillard Corp., 444 F. 2d 791, 798 (CA4 1971) (“The test is whether 
there exists an overriding legitimate business purpose such that 
the practice is necessary to the safe and efficient operation of the 
business.”).



Cite as: 557 U. S .____(2009) 17

G in s b u r g , J., dissenting

hiring and promotional examinations for firefighters.4
Moving in a different direction, in Wards Cove Packing 

Co. v. Atonio, 490 U. S. 642 (1989), a bare majority of this 
Court significantly modified the Griggs-Albemarle delinea­
tion of Title VII’s disparate-impact proscription. As to 
business necessity for a practice that disproportionately 
excludes members of minority groups, Wards Cove held, 
the employer bears only the burden of production, not the 
burden of persuasion. 490 U. S., at 659-660. And in place 
of the instruction that the challenged practice “must have 
a manifest relationship to the employment in question,” 
Griggs, 401 U. S., at 432, Wards Cove said that the prac­
tice would be permissible as long as it “serve [d], in a sig­
nificant way, the legitimate employment goals of the 
employer.” 490 U. S., at 659.

In response to Wards Cove and “a number of [other] 
recent decisions by the United States Supreme Court that 
sharply cut back on the scope and effectiveness of [civil 
rights] laws,” Congress enacted the Civil Rights Act of 
1991. H. R. Rep. No. 102-40, pt. 2, p. 2 (1991). Among the 
1991 alterations, Congress formally codified the disparate- 
impact component of Title VII. In so amending the stat­
ute, Congress made plain its intention to restore “the 
concepts of ‘business necessity’ and ‘job related’ enunciated 
by the Supreme Court in Griggs v. Duke Power Co. . . . 
and in other Supreme Court decisions prior to Wards Cove 
Packing Co. v. Atonio.” §3(2), 105 Stat. 1071. Once a 
complaining party demonstrates that an employment

4 See, e.g., Nash v. Jacksonville, 837 F. 2d 1534 (CA11 1988), vacated, 
490 U. S. 1103 (1989), opinion reinstated, 905 F. 2d 355 (CA11 1990); 
Vulcan Pioneers, Inc. v. New Jersey Dept, of Civil Serv., 832 F. 2d 811 
(CA3 (1987); Guardians Assn, of N. Y. City Police Dept. v. Civil Serv. 
Comm’n, 630 F. 2d 79 (CA2 1980); Ensley Branch of NAACP v. Seibels, 
616 F. 2d 812 (CA5 1980); Firefighters Inst, for Racial Equality v. 
St. Louis, 616 F. 2d 350 (CA8 1980); Boston Chapter, NAACP v. 
Beecher, 504 F. 2d 1017 (CA1 1974).



18 RICCI v. DeSTEFANO

GlNSBUEG, J., dissenting

practice causes a disparate impact, amended Title VII 
states, the burden is on the employer “to demonstrate that 
the challenged practice is job related for the position in 
question and consistent with business necessity.” 42 
U. S. C. §2000e—2(k)(l)(A)(i). If the employer carries that 
substantial burden, the complainant may respond by 
identifying “an alternative employment practice” which 
the employer “refuses to adopt.” §2000e-2(k)(l)(A)(ii), (C).

B
Neither Congress’ enactments nor this Court’s Title VII 

precedents (including the now-discredited decision in 
Wards Cove) offer even a hint of “conflict” between an 
employer’s obligations under the statute’s disparate- 
treatment and disparate-imp act provisions. Cf. ante, at 
20. Standing on an equal footing, these twin pillars of 
Title VII advance the same objectives: ending workplace 
discrimination and promoting genuinely equal opportu­
nity. See McDonnell Douglas Corp. v. Green, 411 U. S. 
792, 800 (1973).

Yet the Court today sets at odds the statute’s core direc­
tives. When an employer changes an employment practice 
in an effort to comply with Title VII’s disparate-impact 
provision, the Court reasons, it acts “because of race”— 
something Title VII’s disparate-treatment provision, see 
§2000e-2(a)(l), generally forbids. Ante, at 20. This char­
acterization of an employer’s compliance-directed action 
shows little attention to Congress’ design or to the Griggs 
line of cases Congress recognized as pathmarking.

“[0]ur task in interpreting separate provisions of a 
single Act is to give the Act the most harmonious, compre­
hensive meaning possible in light of the legislative policy 
and purpose.” Weinberger v. Hynson, Westcott & Dunning, 
Inc., 412 U. S. 609, 631-632 (1973) (internal quotation 
marks omitted). A particular phrase need not “extend to 
the outer limits of its definitional possibilities” if an incon-



G in sb u r g , J., dissenting

gruity would result. Dolan v. Postal Service, 546 U. S. 
481, 486 (2006). Here, Title VU’s disparate-treatment 
and disparate-impact proscriptions must be read as 
complementary.

In codifying the Griggs and Albemarle instructions, 
Congress declared unambiguously that selection criteria 
operating to the disadvantage of minority group members 
can be retained only if justified by business necessity.* 5 In 
keeping with Congress’ design, employers who reject such 
criteria due to reasonable doubts about their reliability 
can hardly be held to have engaged in discrimination 
“because of’ race. A reasonable endeavor to comply with 
the law and to ensure that qualified candidates of all races 
have a fair opportunity to compete is simply not what 
Congress meant to interdict. I would therefore hold that 
an employer who jettisons a selection device when its 
disproportionate racial impact becomes apparent does not 
violate Title VU’s disparate-treatment bar automatically 
or at all, subject to this key condition: The employer must 
have good cause to believe the device would not withstand 
examination for business necessity. Cf. Faragher v. Boca 
Raton, 524 U. S. 775, 806 (1998) (observing that it accords 
with “clear statutory policy” for employers “to prevent 
violations” and “make reasonable efforts to discharge their 
duty” under Title VII).

EEOC’s interpretative guidelines are corroborative. 
“[B]y the enactment of title VII,” the guidelines state, 
“Congress did not intend to expose those who comply with 
the Act to charges that they are violating the very statute 
they are seeking to implement.” 29 CFR §1608.1(a) 
(2008). Recognizing EEOC’s “enforcement responsibility”

Cite as: 557 U. S .____(2009) 19

5 What was the “business necessity” for the tests New Haven used? 
How could one justify, e.g., the 60/40 written/oral ratio, see supra, at 4-
5, 7-8, under that standard? Neither the Court nor the concurring 
opinions attempt to defend the ratio.



20 RICCI v. DeSTEFANO

GlNSBURG, J., dissenting

under Title VII, we have previously accorded the Commis­
sion’s position respectful consideration. See, e.g., Albe­
marle, 422 U. S., at 431; Griggs, 401 U. S., at 434. Yet the 
Court today does not so much as mention EEOC’s counsel.

Our precedents defining the contours of Title VU’s 
disparate-treatment prohibition further confirm the ab­
sence of any intra-statutory discord. In Johnson v. Trans­
portation Agency, Santa Clara Cty., 480 U. S. 616 (1987), 
we upheld a municipal employer’s voluntary affirmative- 
action plan against a disparate-treatment challenge. 
Pursuant to the plan, the employer selected a woman for a 
road-dispatcher position, a job category traditionally 
regarded as “male.” A male applicant who had a slightly 
higher interview score brought suit under Title VII. This 
Court rejected his claim and approved the plan, which 
allowed consideration of gender as “one of numerous fac­
tors.” Id., at 638. Such consideration, we said, is “fully 
consistent with Title VII” because plans of that order can 
aid “in eliminating the vestiges of discrimination in the 
workplace.” Id., at 642.

This litigation does not involve affirmative action. But 
if the voluntary affirmative action at issue in Johnson 
does not discriminate within the meaning of Title VII, 
neither does an employer’s reasonable effort to comply 
with Title VU’s disparate-impact provision by refrain­
ing from action of doubtful consistency with business 
necessity.

C
To “reconcile” the supposed “conflict” between disparate 

treatment and disparate impact, the Court offers an enig­
matic standard. Ante, at 20. Employers may attempt to 
comply with Title VTI’s disparate-impact provision, the 
Court declares, only where there is a “strong basis in 
evidence” documenting the necessity of their action. Ante, 
at 22. The Court’s standard, drawn from inapposite equal



Cite as: 557 U. S .____(2009) 21

G in sb u k g , J ., dissenting

protection precedents, is not elaborated. One is left to 
wonder what cases would meet the standard and why the 
Court is so sure this case does not.

1
In construing Title VII, I note preliminarily, equal 

protection doctrine is of limited utility. The Equal Protec­
tion Clause, this Court has held, prohibits only intentional 
discrimination; it does not have a disparate-impact com­
ponent. See Personnel Administrator of Mass. v. Feeney, 
442 U. S. 256, 272 (1979); Washington v. Davis, 426 U. S. 
229, 239 (1976). Title VII, in contrast, aims to eliminate 
all forms of employment discrimination, unintentional as 
well as deliberate. Until today, cf. ante, at 25; ante, p. 1 
(SCALIA, J., concurring), this Court has never questioned 
the constitutionality of the disparate-impact component of 
Title VII, and for good reason. By instructing employers 
to avoid needlessly exclusionary selection processes, Title 
VIPs disparate-impact provision calls for a “race-neutral 
means to increase minority . . . participation”—something 
this Court’s equal protection precedents also encourage. 
See Adarand Constructors, Inc. v. Pena, 515 U. S. 200, 238 
(1995) (quoting Richmond v. J. A. Croson Co., 488 U. S. 
469, 507 (1989)). “The very radicalism of holding dispa­
rate impact doctrine unconstitutional as a matter of equal 
protection,” moreover, “suggests that only a very uncom­
promising court would issue such a decision.” Primus, 
Equal Protection and Disparate Impact: Round Three, 117 
Harv. L. Rev. 493, 585 (2003).

The cases from which the Court draws its strong-basis- 
in-evidence standard are particularly inapt; they concern 
the constitutionality of absolute racial preferences. See 
Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277 (1986) 
(plurality opinion) (invalidating a school district’s plan to 
lay off nonminority teachers while retaining minority 
teachers with less seniority); Croson, 488 U. S., at 499-500



22 RICCI v. DeSTEFANO

GlNSBURG, J., dissenting

(rejecting a set-aside program for minority contractors 
that operated as “an unyielding racial quota”). An em­
ployer’s effort to avoid Title VII liability by repudiating a 
suspect selection method scarcely resembles those cases. 
Race was not merely a relevant consideration in Wygant 
and Croson; it was the decisive factor. Observance of Title 
VU’s disparate-impact provision, in contrast, calls for no 
racial preference, absolute or otherwise. The very purpose 
of the provision is to ensure that individuals are hired and 
promoted based on qualifications manifestly necessary to 
successful performance of the job in question, qualifica­
tions that do not screen out members of any race.6

2
The Court’s decision in this litigation underplays a 

dominant Title VII theme. This Court has repeatedly 
emphasized that the statute “should not be read to 
thwart” efforts at voluntary compliance. Johnson, 480 
U. S., at 630. Such compliance, we have explained, is “the 
preferred means of achieving [Title VII’s] objectives.” 
Firefighters v. Cleveland, 478 U. S. 501, 515 (1986). See 
also Kolstad v. American Dental Assn., 527 U. S. 526, 545 
(1999) (“Dissuading employers from [taking voluntary 
action] to prevent discrimination in the workplace is di­
rectly contrary to the purposes underlying Title VII.”); 29

6 Even in Title VII cases involving race-conscious (or gender­
conscious) affirmative-action plans, the Court has never proposed a 
strong-basis-in-evidence standard. In Johnson v. Transportation 
Agency, Santa Clara Cty., 480 U. S. 616 (1987), the Court simply 
examined the municipal employer’s action for reasonableness: “Given 
the obvious imbalance in the Skilled Craft category, and given the 
Agency’s commitment to eliminating such imbalances, it was plainly 
not unreasonable for the Agency . . .  to consider as one factor the sex of 
[applicants] in making its decision.” Id., at 637. See also Firefighters v. 
Cleveland, 478 U. S. 501, 516 (1986) (“Title VII permits employers and 
unions voluntarily to make use of reasonable race-conscious affirmative 
action.”).



Cite as: 557 U. S .____(2009) 23

G in sb u r g , J., dissenting

CFR §1608.1(c). The strong-basis-in-evidence standard, 
however, as barely described in general, and cavaberly 
appbed in this case, makes voluntary compbance a haz­
ardous venture.

As a result of today’s decision, an employer who discards 
a dubious selection process can anticipate costly disparate- 
treatment litigation in which its chances for success—even 
for surviving a summary-judgment motion—are highly 
problematic. Concern about exposure to disparate-impact 
liability, however well grounded, is insufficient to insulate 
an employer from attack. Instead, the employer must 
make a “strong” showing that (1) its selection method was 
“not job related and consistent with business necessity,” or 
(2) that it refused to adopt “an equally valid, less- 
discriminatory alternative.” Ante, at 28. It is hard to see 
how these requirements differ from demanding that an 
employer establish “a provable, actual violation” against 
itself. Cf. ante, at 24. There is indeed a sharp conflict 
here, but it is not the false one the Court describes be­
tween Title VU’s core provisions. It is, instead, the discor­
dance of the Court’s opinion with the voluntary compli­
ance ideal. Cf. Wygant, 476 U. S., at 290 (O’Connor, J., 
concurring in part and concurring in judgment) (“The 
imposition of a requirement that public employers make 
findings that they have engaged in illegal discrimina­
tion before they [act] would severely undermine public 
employers’ incentive to meet voluntarily their civil rights 
obligations.”).7

7 Notably, prior decisions applying a strong-basis-in-evidence stan­
dard have not imposed a burden as heavy as the one the Court imposes 
today. In Croson, the Court found no strong basis in evidence because 
the City had offered “nothing approaching a prima facie case.” Rich­
mond v. J. A. Croson Co., 488 U. S. 469, 500 (1989). The Court did not 
suggest that anything beyond a prima facie case would have been 
required. In the context of race-based electoral districting, the Court 
has indicated that a “strong basis” exists when the “threshold condi­



24 RICCI v. DeSTEFANO

GlNSBURG, J., dissenting

3
The Court’s additional justifications for announcing a 

strong-basis-in-evidence standard are unimpressive. 
First, discarding the results of tests, the Court suggests, 
calls for a heightened standard because it “upsetfs] an 
employee’s legitimate expectation.” Ante, at 25. This 
rationale puts the cart before the horse. The legitimacy of 
an employee’s expectation depends on the legitimacy of the 
selection method. If an employer reasonably concludes 
that an exam fails to identify the most qualified individu­
als and needlessly shuts out a segment of the applicant 
pool, Title VII surely does not compel the employer to hire 
or promote based on the test, however unreliable it may 
be. Indeed, the statute’s prime objective is to prevent 
exclusionary practices from “operating] to ‘freeze’ the 
status quo.” Griggs, 401 U. S., at 430.

Second, the Court suggests, anything less than a strong- 
basis-in-evidence standard risks creating “a de facto quota 
system, in which . . .  an employer could discard test re­
sults . . . with the intent of obtaining the employer’s pre­
ferred racial balance.” Ante, at 22. Under a reasonable­
ness standard, however, an employer could not cast aside 
a selection method based on a statistical disparity alone.8 
The employer must have good cause to believe that the 
method screens out qualified applicants and would be 
difficult to justify as grounded in business necessity.

tions” for liability are present. Bush v. Vera, 517 U. S. 952, 978 (1996) 
(plurality opinion).

8 Infecting the Court’s entire analysis is its insistence that the City 
rejected the test results “in sole reliance upon race-based statistics.” 
Ante, at 24. See also ante, at 20, 27-28. But as the part of the story the 
Court leaves out, see supra, at 2-12, so plainly shows—the long history 
of rank discrimination against African-Americans in the firefighting 
profession, the multiple flaws in New Haven’s test for promotions— 
“sole reliance” on statistics certainly is not descriptive of the CSB’s 
decision.



25

G in sb u r g , J., dissenting

Should an employer repeatedly reject test results, it would 
be fair, I agree, to infer that the employer is simply seek­
ing a racially balanced outcome and is not genuinely 
endeavoring to comply with Title VII.

D
The Court stacks the deck further by denying respon­

dents any chance to satisfy the newly announced strong- 
basis-in-evidence standard. When this Court formulates a 
new legal rule, the ordinary course is to remand and allow 
the lower courts to apply the rule in the first instance. 
See, e.g., Johnson v. California, 543 U. S. 499, 515 (2005); 
Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982). I 
see no good reason why the Court fails to follow that 
course in this case. Indeed, the sole basis for the Court’s 
peremptory riding is the demonstrably false pretension 
that respondents showed “nothing more” than “a signifi­
cant statistical disparity.” Ante, at 27-28; see supra, at 
24, n. 8.9

Cite as: 557 U. S .____(2009)

9 The Court’s refusal to remand for further proceedings also deprives 
respondents of an opportunity to invoke 42 U. S. C. §2000e-12(b) as a 
shield to liability. Section 2000e-12(b) provides:
In any action or proceeding based on any alleged unlawful employment 

practice, no person shall be subject to any liability or punishment for or 
on account of (1) the commission by such person of an unlawful em­
ployment practice if he pleads and proves that the act or omission 
complained of was in good faith, in conformity with, and in reliance on 
any written interpretation or opinion of the [EEOC] . . . .  Such a 
defense, if established, shall be a bar to the action or proceeding, 
notwithstanding that (A) after such act or omission, such interpretation 
or opinion is modified or rescinded or is determined by judicial author­
ity to be invalid or of no legal effect. . .  .”
Specifically, given the chance, respondents might have called attention 
to the EEOC guidelines set out in 29 CFR §§1608.3 and 1608.4 (2008). 
The guidelines recognize that employers may “take affirmative action 
based on an analysis which reveals facts constituting actual or poten­
tial adverse impact.” § 1608.3(a). If “affirmative action” is in order, so 
is the lesser step of discarding a dubious selection device.



26 RICCI v. DeSTEFANO

G in s b u r g , J., dissenting

III
A

Applying what I view as the proper standard to the 
record thus far made, I would hold that New Haven had 
ample cause to believe its selection process was flawed and 
not justified by business necessity. Judged by that stan­
dard, petitioners have not shown that New Haven’s failure 
to certify the exam results violated Title VU’s disparate- 
treatment provision.10 11

The City, all agree, “was faced with a prima facie case of 
disparate-impact liability,” ante, at 27: The pass rate for 
minority candidates was half the rate for nonminority 
candidates, and virtually no minority candidates would 
have been eligible for promotion had the exam results 
been certified. Alerted to this stark disparity, the CSB 
heard expert and lay testimony, presented at public hear­
ings, in an endeavor to ascertain whether the exams were 
fair and consistent with business necessity. Its investiga­
tion revealed grave cause for concern about the exam 
process itself and the City’s failure to consider alternative 
selection devices.

Chief among the City’s problems was the very nature of 
the tests for promotion. In choosing to use written and 
oral exams with a 60/40 weighting, the City simply ad­
hered to the union’s preference and apparently gave no 
consideration to whether the weighting was likely to 
identify the most qualified fire-officer candidates.11 There

10 The lower courts focused on respondents’ “intent” rather than on 
whether respondents in fact had good cause to act. See 554 F. Supp. 2d 
142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration 
would be in order. But the Court has seen fit to preclude further 
proceedings. I therefore explain why, if final adjudication by this Court 
is indeed appropriate, New Haven should be the prevailing party.

11 This alone would have posed a substantial problem for New Haven 
in a disparate-impact suit, particularly in light of the disparate results 
the City’s scheme had produced in the past. See supra, at 7. Under the



Cite as: 557 U. S .____(2009) 27

GlNSBUKG, J., dissenting

is strong reason to think it was not.
Relying heavily on written tests to select fire officers is a 

questionable practice, to say the least. Successful fire 
officers, the City’s description of the position makes clear, 
must have the “[a]bility to lead personnel effectively, 
maintain discipline, promote harmony, exercise sound 
judgment, and cooperate with other officials.” CA2 App. 
A432. These qualities are not well measured by written 
tests. Testifying before the CSB, Christopher Hornick, an 
exam-design expert with more than two decades of rele­
vant experience, was emphatic on this point: Leadership 
skills, command presence, and the like “could have been 
identified and evaluated in a much more appropriate 
way.” Id., at A1042-A1043.

Hornick’s commonsense observation is mirrored in case 
law and in Title VTI’s administrative guidelines. Courts 
have long criticized written firefighter promotion exams 
for being “more probative of the test-taker’s ability to 
recall what a particular text stated on a given topic than 
of his firefighting or supervisory knowledge and abilities.”

Uniform Guidelines on Employee Selection Procedures (Uniform 
Guidelines), employers must conduct “an investigation of suitable 
alternative selection procedures.” 29 CFE §1607.3(B). See also Officers 
for Justice v. Civil Serv. Comm’n, 979 F. 2d 721, 728 (CA9 1992) (‘Tie- 
fore utilizing a procedure tbat has an adverse impact on minorities, the 
City has an obligation pursuant to the Uniform Guidelines to explore 
alternative procedures and to implement them if they have less adverse 
impact and are substantially equally valid”). It is no answer to “pre­
sume” that the two-decades-old 60/40 formula was adopted for a “ra­
tional reason” because it “was the result of a union-negotiated collective 
bargaining agreement.” Cf. ante, at 30. That the parties may have 
been “rational” says nothing about whether their agreed-upon selection 
process was consistent with business necessity. It is not at all unusual 
for agreements negotiated between employers and unions to run afoul 
of Title VII. See, e.g., Peters v. Missouri-Pacific R. Co., 483 F. 2d 490, 
497 (CA5 1973) (an employment practice “is not shielded [from the 
requirements of Title VII] by the facts that it is the product of collective 
bargaining and meets the standards of fair representation”).



28 RICCI v. DeSTEFANO

GiNSBUEG, J., dissenting

Vulcan Pioneers, Inc. v. New Jersey Dept, of Civil Serv., 
625 F. Supp. 527, 539 (NJ 1985). A fire officer’s job, courts 
have observed, “involves complex behaviors, good inter­
personal skills, the ability to make decisions under tre­
mendous pressure, and a host of other abilities—none of 
which is easily measured by a written, multiple choice 
test.” Firefighters Inst, for Racial Equality v. St. Louis, 
616 F. 2d 350, 359 (CA8 1980).12 Interpreting the Uniform 
Guidelines, EEOC and other federal agencies responsible 
for enforcing equal opportunity employment laws have 
similarly recognized that, as measures of “interpersonal 
relations” or “ability to function under danger (e.g., fire­
fighters),” “|p]encil-and-paper tests . . . generally are not 
close enough approximations of work behaviors to show 
content validity.” 44 Fed. Reg. 12007 (1979). See also 29 
CFR§ 1607.15(C)(4).13

Given these unfavorable appraisals, it is unsurprising 
that most municipal employers do not evaluate their fire-

12 See also Nash, 837 F. 2d, at 1538 (“the examination did not test the 
one aspect of job performance that differentiated the job of firefighter 
engineer from fire lieutenant (combat): supervisory skills”); Firefighters 
Inst, for Racial Equality v. St. Louis, 549 F. 2d 506, 512 (CA8 1977) 
(“there is no good pen and paper test for evaluating supervisory skills”); 
Boston Chapter, NAACP, 504 F. 2d, at 1023 (“[T]here is a difference 
between memorizing . . . fire fighting terminology and being a good fire 
fighter. If the Boston Red Sox recruited players on the basis of their 
knowledge of baseball history and vocabulary, the team might acquire 
[players] who could not bat, pitch or catch.”).

13 Cf. Gillespie v. Wisconsin, 771 F. 2d 1035, 1043 (CA7 1985) (courts 
must evaluate “the degree to which the nature of the examination 
procedure approximates the job conditions”). In addition to “content 
validity,” the Uniform Guidelines discuss “construct validity” and 
“criterion validity” as means by which an employer might establish the 
reliability of a selection method. See 29 CFR §1607.14(B)—(D). Content 
validity, however, is the only type of validity addressed by the parties 
and “the only feasible type of validation in these circumstances.” Brief 
for Industrial-Organizational Psychologists as Amicus Curiae 7, n. 2 
(hereinafter 1-0 Psychologists Brief).



Cite as: 557 U. S .____(2009) 29

GlNSBURG, J., dissenting

officer candidates as New Haven does. Although compre­
hensive statistics are scarce, a 1996 study found that 
nearly two-thirds of surveyed municipalities used assess­
ment centers (“simulations of the real world of work”) as 
part of their promotion processes. P. Lowry, A Survey of 
the Assessment Center Process in the Public Sector, 25 
Public Personnel Management 307, 315 (1996). That 
figure represented a marked increase over the previous 
decade, see ibid., so the percentage today may well be even 
higher. Among municipalities still relying in part on 
written exams, the median weight assigned to them was 
30 percent—half the weight given to New Haven’s written 
exam. Id., at 309.

Testimony before the CSB indicated that these alterna­
tive methods were both more reliable and notably less 
discriminatory in operation. According to Donald Day of 
the International Association of Black Professional Fire­
fighters, nearby Bridgeport saw less skewed results after 
switching to a selection process that placed primary 
weight on an oral exam. CA2 App. A830-A832; see supra, 
at 7-8. And Hornick described assessment centers as 
“demonstrat[ing] dramatically less adverse impacts” than 
written exams. CA2 App. A1040.14 Considering the 
prevalence of these proven alternatives, New Haven was 
poorly positioned to argue that promotions based on its 
outmoded and exclusionary selection process qualified as a 
business necessity. Cf. Robinson v. Lorillard Corp., 444

14See also G. Thornton & D. Rupp, Assessment Centers in Human 
Resource Management 15 (2006) (“Assessment centers predict future 
success, do not cause adverse impact, and are seen as fair by partici­
pants.”); W. Cascio & H. Aguinis, Applied Psychology in Human Re­
source Management 372 (6th ed. 2005) (“research has demonstrated 
that adverse impact is less of a problem in an [assessment center] as 
compared to an aptitude test”). Cf. Firefighters Inst, for Racial Equal­
ity, 549 F. 2d, at 513 (recommending assessment centers as an alterna­
tive to written exams).



30 RICCI v. DeSTEFANO

GlNSBURG, J., dissenting

F. 2d 791, 798, n. 7 (CA4 1971) (“It should go without 
saying that a practice is hardly ‘necessary’ if an alterna­
tive practice better effectuates its intended purpose or is 
equally effective but less discriminatory.”).15

Ignoring the conceptual and other defects in New Ha­
ven’s selection process, the Court describes the exams as 
“painstaking[ly]” developed to test “relevant” material and 
on that basis finds no substantial risk of disparate-impact 
liability. See ante, at 28. Perhaps such reasoning would 
have sufficed under Wards Cove, which permitted exclu­
sionary practices as long as they advanced an employer’s 
“legitimate” goals. 490 U. S., at 659. But Congress repu­
diated Wards Cove and reinstated the “business necessity” 
rule attended by a “manifest relationship” requirement. 
See Griggs, 401 U. S., at 431-432. See also supra, at 17. 
Like the chess player who tries to win by sweeping the 
opponent’s pieces off the table, the Court simply shuts 
from its sight the formidable obstacles New Haven would 
have faced in defending against a disparate-impact suit.

15 Finding the evidence concerning these alternatives insufficiently 
developed to “create a genuine issue of fact,” ante, at 32, the Court 
effectively confirms that an employer cannot prevail under its strong- 
basis-in-evidence standard unless the employer decisively proves a 
disparate-impact violation against itself. The Court’s specific argu­
ments are unavailing. First, the Court suggests, changing the 
oral/written weighting may have violated Title VU’s prohibition on 
altering test scores. Ante, at 31. No one is arguing, however, that the 
results of the exams given should have been altered. Rather, the 
argument is that the City could have availed itself of a better option 
when it initially decided what selection process to use. Second, with 
respect to assessment centers, the Court identifies “statements to the 
CSB indicat[ing] that the Department could not have used [them] for 
the 2003 examinations.” Ante, at 31-32. The Court comes up with only 
a single statement on this subject—an offhand remark made by peti­
tioner Ricci, who hardly qualifies as an expert in testing methods. See 
ante, at 14. Given the large number of municipalities that regularly 
use assessment centers, it is impossible to fathom why the City, with 
proper planning, could not have done so as well.



Cite as: 557 U. S .____(2009) 31

GlNSBURG, J., dissenting

See Lanningv. Southeastern Pa. Transp. Auth., 181 F. 3d 
478, 489 (CA3 1999) (“Judicial application of a standard 
focusing solely on whether the qualities measured by an 
. . . exam bear some relationship to the job in question 
would impermissibly write out the business necessity 
prong of the Act’s chosen standard.”).

That IOS representative Chad Legel and his team may 
have been diligent in designing the exams says little about 
the exams’ suitability for selecting fire officers. IOS 
worked within the City’s constraints. Legel never dis­
cussed with the City the propriety of the 60/40 weighting 
and “was not asked to consider the possibility of an as­
sessment center.” CA2 App. A522. See also id., at A467. 
The IOS exams, Legel admitted, had not even attempted 
to assess “command presence”: “[Y]ou would probably be 
better off with an assessment center if you cared to meas­
ure that.” Id., at A521. Cf. Boston Chapter, NAACP v. 
Beecher, 504 F. 2d 1017, 1021-1022 (CA1 1974) (“A test 
fashioned from materials pertaining to the job . . . superfi­
cially may seem job-related. But what is at issue is 
whether it demonstrably selects people who will perform 
better the required on-the-job behaviors.”).

In addition to the highly questionable character of the 
exams and the neglect of available alternatives, the City 
had other reasons to worry about its vulnerability to dis­
parate-impact liability. Under the City’s ground rules, 
IOS was not allowed to show the exams to anyone in the 
New Haven Fire Department prior to their administra­
tion. This “precluded [IOS] from being able to engage in 
[its] normal subject matter expert review process”— 
something Legel described as “very critical.” CA2 App. 
A477, A506. As a result, some of the exam questions were 
confusing or irrelevant, and the exams may have over­
tested some subject-matter areas while missing others. 
See, e.g., id., at A1034-A1035, A1051. Testimony before 
the CSB also raised questions concerning unequal access



32 RICCI v. DeSTEFANO

G in s b u e g , J ., dissenting

to study materials, see id., at A857-A861, and the poten­
tial bias introduced by relying principally on job analyses 
from nonminority fire officers to develop the exams, see 
id., at A1063-A1064.16 See also supra, at 7, 10.

The Court criticizes New Haven for fading to obtain a 
“technical report” from IOS, which, the Court maintains, 
would have provided “detaded information to establish the 
validity of the exams.” Ante, at 29. The record does not 
substantiate this assertion. As Legel testified during his 
deposition, the technical report merely summarized “the 
steps that [IOS] took methodologicady speaking,” and 
would not have established the exams’ reliability. CA2 
App. A461. See also id., at A462 (the report “doesn’t say 
anything that other documents that already existed 
wouldn’t say”).

In sum, the record solidly establishes that the City had 
good cause to fear disparate-impact liability. Moreover, 
the Court supplies no tenable explanation why the evi­
dence of the tests’ multiple deficiencies does not create at 
least a triable issue under a strong-basis-in-evidence 
standard.

16The 1-0 Psychologists Brief identifies still other, more technical 
flaws in the exams that may well have precluded the City from prevail­
ing in a disparate-impact suit. Notably, the exams were never shown to 
be suitably precise to allow strict rank ordering of candidates. A 
difference of one or two points on a multiple-choice exam should not be 
decisive of an applicant’s promotion chances if that difference bears 
little relationship to the applicant’s qualifications for the job. Relat- 
edly, it appears that the fine between a passing and failing score did 
not accurately differentiate between qualified and unqualified candi­
dates. A number of fire-officer promotional exams have been invali­
dated on these bases. See, e.g., Guardians Assn., 630 F. 2d, at 105 
(“When a cutoff score unrelated to job performance produces disparate 
racial results, Title VII is violated.”); Vulcan Pioneers, Inc. v. New 
Jersey Dept, of Civil Serv., 625 F. Supp. 527, 538 (NJ 1985) (“[T]he tests 
here at issue are not appropriate for ranking candidates.”).



Cite as: 557 U. S .____(2009) 33

GlNSBURG, J., dissenting

B
Concurring in the Court’s opinion, JUSTICE ALITO as­

serts that summary judgment for respondents would be 
improper even if the City had good cause for its noncertifi­
cation decision. A reasonable jury, he maintains, could 
have found that respondents were not actually motivated 
by concern about disparate-impact litigation, but instead 
sought only “to placate a politically important [African- 
American] constituency.” Ante, at 3. As earlier noted, I 
would not oppose a remand for further proceedings fair to 
both sides. See supra, at 26, n. 10. It is the Court that 
has chosen to short-circuit this litigation based on its 
pretension that the City has shown, and can show, noth­
ing more than a statistical disparity. See supra, at 24, 
n. 8, 25. JUSTICE ALITO compounds the Court’s error.

Offering a truncated synopsis of the many hours of 
deliberations undertaken by the CSB, JUSTICE ALITO finds 
evidence suggesting that respondents’ stated desire to 
comply with Title VII was insincere, a mere “pretext” for 
discrimination against white firefighters. Ante, at 2-3. In 
support of his assertion, JUSTICE ALITO recounts at length 
the alleged machinations of Rev. Boise Kimber (a local 
political activist), Mayor John DeStefano, and certain 
members of the mayor’s staff. See ante, at 3-10.

Most of the allegations JUSTICE ALITO repeats are 
drawn from petitioners’ statement of facts they deem 
undisputed, a statement displaying an adversarial zeal 
not uncommonly found in such presentations.17 What

17 Some of petitioners’ so-called facts find little support in the record, 
and many others can scarcely be deemed material. Petitioners allege, 
for example, that City officials prevented New Haven’s fire chief and 
assistant chief from sharing their views about the exams with the CSB. 
App. to Pet. for Cert, in No. 07-1428, p. 228a. None of the materials 
petitioners cite, however, “suggests” that this proposition is accurate. 
Cf. ante, at 5. In her deposition testimony, City official Karen Dubois- 
Walton specifically denied that she or her colleagues directed the chief



34 RICCI v. DeSTEFANO

G in s b u r g , J ., dissenting

cannot credibly be denied, however, is that the decision 
against certification of the exams was made neither by 
Kimber nor by the mayor and his staff. The relevant 
decision was made by the CSB, an unelected, politically 
insulated body. It is striking that JUSTICE ALITO’s concur­
rence says hardly a word about the CSB itself, perhaps 
because there is scant evidence that its motivation was 
anything other than to comply with Title VII’s disparate- 
impact provision. Notably, petitioners did not even seek to 
take depositions of the two commissioners who voted 
against certification. Both submitted uncontested affida­
vits declaring unequivocally that their votes were “based 
solely on [their] good faith belief that certification” would 
have discriminated against minority candidates in viola­
tion of federal law. CA2 App. A1605, A1611.

JUSTICE Alito discounts these sworn statements, sug­
gesting that the CSB’s deliberations were tainted by the 
preferences of Kimber and City officials, whether or not 
the CSB itself was aware of the taint. Kimber and City 
officials, JUSTICE Alito speculates, decided early on to 
oppose certification and then “engineered” a skewed pres­
entation to the CSB to achieve their preferred outcome. 
Ante, at 12.

and assistant chief not to appear. App. to Pet. for Cert, in No. 07-1428, 
p. 850a. Moreover, contrary to the insinuations of petitioners and 
Ju st ic e  A lito , the statements made by City officials before the CSB did 
not emphasize allegations of cheating by test takers. Cf. ante, at 7-8. 
In her deposition, Dubois-Walton acknowledged sharing the cheating 
allegations not with the CSB, but with a different City commission. 
App. to Pet. for Cert, in No. 07-1428, p. 837a. JUSTICE ALITO also 
reports that the City’s attorney advised the mayor’s team that the way 
to convince the CSB not to certify was “to focus on something other 
than ‘a big discussion re: adverse impact’ law.” Ante, at 8 (quoting App. 
to Pet. for Cert, in No. 07-1428, p. 458a). This is a misleading abbre­
viation of the attorney’s advice. Focusing on the exams’ defects and on 
disparate-impact law is precisely what he recommended. See id., at 
458a-459a.



Cite as: 557 U. S .____(2009) 35

GlNSBURG, J., dissenting

As an initial matter, JUSTICE ALITO exaggerates the 
influence of these actors. The CSB, the record reveals, 
designed and conducted an inclusive decisionmaking 
process, in which it heard from numerous individuals on 
both sides of the certification question. See, e.g., CA2 App. 
A1090. Kimber and others no doubt used strong words to 
urge the CSB not to certify the exam results, but the CSB 
received “pressure” from supporters of certification as well 
as opponents. Cf. ante, at 6. Petitioners, for example, 
engaged counsel to speak on their behalf before the CSB. 
Their counsel did not mince words: “[I]f you discard these 
results,” she warned, “you will get sued. You will force the 
taxpayers of the city of New Haven into protracted litiga­
tion.” CA2 App. A816. See also id., at A788.

The local firefighters union—an organization required 
by law to represent all the City’s firefighters—was simi­
larly outspoken in favor of certification. Discarding the 
test results, the union’s president told the CSB, would be 
“totally ridiculous.” Id., at A806. He insisted, inaccu­
rately, that the City was not at risk of disparate-impact 
liability because the exams were administered pursuant to 
“a collective bargaining agreement.” Id., at A1137. Cf. 
supra, at 26-27, n. 11. Never mentioned by JUSTICE 
ALITO in his attempt to show testing expert Christopher 
Hornick’s alliance with the City, ante, at 8-9, the CSB 
solicited Hornick’s testimony at the union’s suggestion, not 
the City’s. CA2 App. A1128. Hornick’s cogent testimony 
raised substantial doubts about the exams’ reliability. See 
supra, at 8-10.18

18 City officials, JUSTICE A lito  reports, sent Hornick newspaper ac­
counts and other material about the exams prior to his testimony. 
Ante, at 8. Some of these materials, Ju stic e  A lito  intimates, may have 
given Hornick an inaccurate portrait of the exams. But Hornick’s 
testimony before the CSB, viewed in full, indicates that Hornick had an 
accurate understanding of the exam process. Much of Hornick’s analy­
sis focused on the 60/40 weighting of the written and oral exams,



36 RICCI v. DeSTEFANO

GlNSBURG, J., dissenting

There is scant cause to suspect that maneuvering or 
overheated rhetoric, from either side, prevented the CSB 
from evenhandedly assessing the reliability of the exams 
and rendering an independent, good-faith decision on 
certification. JUSTICE ALITO acknowledges that the CSB 
had little patience for Kimber’s antics. Ante, at 6-7.19 As 
to petitioners, Chairman Segaloff—who voted to certify 
the exam results—dismissed the threats made by their 
counsel as unhelpful and needlessly “inflammatory.” CA2 
App. A821. Regarding the views expressed by City offi­
cials, the CSB made clear that they were entitled to no 
special weight. Id., at A1080.20

In any event, JUSTICE ALITO’s analysis contains a more 
fundamental flaw: It equates political considerations with 
unlawful discrimination. As JUSTICE ALITO sees it, if the 
mayor and his staff were motivated by their desire “to 
placate a . . . racial constituency,” ante, at 3, then they 
engaged in unlawful discrimination against petitioners. 
But JUSTICE Au t o  fails to ask a vital question: “[P]lacate” 
how? That political officials would have politics in mind is 
hardly extraordinary, and there are many ways in which a 
politician can attempt to win over a constituency—

something that neither the Court nor the concurrences even attempt to 
defend. It is, moreover, entirely misleading to say that the City later 
hired union-proposed Hornick as a “rewarfd]” for his testimony. Cf. 
Ante, at 9.

19 To be clear, the Board of Fire Commissioners on which Kimber 
served is an entity separate from the CSB. Kimber was not a member 
of the CSB. Kimber, JUSTICE A lito  states, requested a private meeting 
with the CSB. Ante, at 6. There is not a shred of evidence that a 
private meeting with Kimber or anyone else took place.

20 JUSTICE A l it o  points to evidence that the mayor had decided not to 
make promotions based on the exams even if the CSB voted to certify 
the results, going so far as to prepare a press release to that effect. 
Ante, at 9. If anything, this evidence reinforces the conclusion that the 
CSB—which made the noncertification decision—remained independ­
ent and above the political fray. The mayor and his staff needed a 
contingency plan precisely because they did not control the CSB.



37

GlNSBUKG, J., dissenting

including a racial constituency—without engaging in 
unlawful discrimination. As courts have recognized, 
“[politicians routinely respond to bad press . . . , but it is 
not a violation of Title VII to take advantage of a situation 
to gain political favor.” Henry v. Jones, 507 F. 3d 558, 567 
(CA7 2007).

The real issue, then, is not whether the mayor and his 
staff were politically motivated; it is whether their at­
tempt to score political points was legitimate (i.e., nondis- 
criminatory). Were they seeking to exclude white fire­
fighters from promotion (unlikely, as a fair test would 
undoubtedly result in the addition of white firefighters to 
the officer ranks), or did they realize, at least belatedly, 
that their tests could be toppled in a disparate-impact 
suit? In the latter case, there is no disparate-treatment 
violation. JUSTICE ALITO, I recognize, would disagree. In 
his view, an employer’s action to avoid Title VII disparate- 
impact liability qualifies as a presumptively improper 
race-based employment decision. See ante, at 2. I reject 
that construction of Title VII. See supra, at 18-20. As I 
see it, when employers endeavor to avoid exposure to 
disparate-impact liability, they do not thereby encounter 
liability for disparate treatment.

Applying this understanding of Title VII, supported by 
Griggs and the long line of decisions following Griggs, see 
supra, at 16-17, and nn. 3-4, the District Court found no 
genuine dispute of material fact. That court noted, par­
ticularly, the guidance furnished by Second Circuit prece­
dent. See supra, at 12. Petitioners’ allegations that City 
officials took account of politics, the District Court deter­
mined, simply “d[id] not suffice” to create an inference of 
unlawful discrimination. 554 F. Supp. 2d, at 160, n. 12. 
The noncertification decision, even if undertaken “in a 
political context,” reflected a legitimate “intent not to 
implement a promotional process based on testing results 
that had an adverse impact.” Id., at 158, 160. Indeed, the

Cite as: 557 U .S .____(2009)



38 RICCI v. DeSTEFANO

GlNSBURG, J., dissenting

District Court perceived “a total absence of any evidence of 
discriminatory animus towards [petitioners].” Id., at 158. 
See also id., at 162 (“Nothing in the record in this case 
suggests that the City defendants or CSB acted ‘because 
of discriminatory animus toward [petitioners] or other 
non-minority applicants for promotion.”). Perhaps the 
District Court could have been more expansive in its 
discussion of these issues, but its conclusions appear 
entirely consistent with the record before it.21

It is indeed regrettable that the City’s noncertification 
decision would have required all candidates to go through 
another selection process. But it would have been more 
regrettable to rely on flawed exams to shut out candidates 
who may well have the command presence and other 
qualities needed to excel as fire officers. Yet that is the 
choice the Court makes today. It is a choice that breaks 
the promise of Griggs that groups long denied equal oppor­
tunity would not be held back by tests “fair in form, but 
discriminatory in operation.” 401 U. S., at 431.

21 The District Court, JUSTICE Alito writes, “all but conceded that a 
jury could find that the City’s asserted justification was pretextual” by 
“admitting] that ‘a jury could rationally infer that city officials worked 
behind the scenes to sabotage the promotional examinations because 
they knew that, were the exams certified, the Mayor would incur the 
wrath of [Rev. Boise] Kimber and other influential leaders of New 
Haven’s African-American community.’ ” Ante, at 3, 13 (quoting 554 F. 
Supp. 2d, at 162). The District Court drew the quoted passage from 
petitioners’ lower court brief, and used it in reference to a First Amend­
ment claim not before this Court. In any event, it is not apparent why 
these alleged political maneuvers suggest an intent to discriminate 
against petitioners. That City officials may have wanted to please 
political supporters is entirely consistent with their stated desire to
avoid a disparate-impact violation. Cf. Ashcroft v. Iqbal, 556 U. S .___,
___(2009) (slip op., at 18) (allegations that senior Government officials
condoned the arrest and detention of thousands of Arab Muslim men 
following the September 11 attacks failed to establish even a “plausible 
inference” of unlawful discrimination sufficient to survive a motion to 
dismiss).



39

GlNSBURG, J., dissenting 

* * *

This case presents an unfortunate situation, one New 
Haven might well have avoided had it utilized a better 
selection process in the first place. But what this case 
does not present is race-based discrimination in violation 
of Title VTI. I dissent from the Court’s judgment, which 
rests on the false premise that respondents showed “a 
significant statistical disparity,” but “nothing more.” See 
ante, at 27-28.

Cite as: 557 U. S .____(2009)