Title VII, the Adverse Action Requirement, and Ricci v. DeStefano
posted by Tristin Green
The reverse discrimination case Ricci v. DeStefano , in which the Supreme Court recently granted certiorari, is a strange case for the Court for a number of reasons. One oddity is the fact that the case involves a Title VII Civil Rights Act claim by plaintiffs who do not seem to have suffered an “adverse employment action,” and yet there is no hint anywhere, at least that I have seen, that this issue was raised. In the traditional discrimination context, courts have consistently required that a plaintiff have suffered an adverse employment action before he or she has an actionable claim under Title VII. Many courts define the requirement strictly, to require an “ultimate” employment action, like refusal to hire or to promote, and even those applying a somewhat broader definition require that the race- or sex-based decision have had a material effect to be actionable. The firefighters in Ricci had suffered no such material effect. Why no mention of this in the case? If courts are really going to apply an adverse employment action requirement to Title VII claims, the requirement should apply regardless of how obvious the racial motivation and certainly regardless the race of the plaintiffs.
February 5, 2009 at 11:39 pm
Posted in: Civil Rights
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Responses (21)
Orin Kerr - February 6, 2009 at 10:33 am
I know extremely little about Title VII. But as practical matter, if an issue like that was not raised in the Brief in Opposition, the Justices aren’t very likely to be aware of it. (Also, I’m a bit curious, when you say that “the courts” apply this requirement, do you mean that the Supreme Court requires it, or that lower courts have required it?)
TRE - February 6, 2009 at 10:48 am
Wouldn’t holding a competition for promotion and then the racially motivated setting aside of the competition be an adverse employment action?
JP - February 6, 2009 at 11:02 am
The Plaintiff’s were not promoted because of the results of the examination they took indicated that the test had a racially disparate impact.
Failure to promote is unambiguously an adverse employment action, as you note in your post.
JP - February 6, 2009 at 11:02 am
The Plaintiffs were not promoted because of the results of the examination they took indicated that the test had a racially disparate impact.
Failure to promote is unambiguously an adverse employment action, as you note in your post.
TRE - February 6, 2009 at 3:15 pm
surely this isn’t some kind of “form pleading” objection?
Jason Mazzone - February 6, 2009 at 4:32 pm
The defendants conceded in the district court that there was an adverse employment action.
Marcia McCormick - February 6, 2009 at 4:33 pm
The adverse employment action in the case is a failure to promote, as JP says. I don’t think the city of New Haven contested the assertion that if the test results had been given effect, at least some of the plaintiffs would have been promoted. I believe, and my memory could be inaccurate, that the promotional process was laid out by statute, and a mathematical formula based on test scores and something else ranked the candidates. A certain number passed, but promotions would be given only to a few of those who passed, starting with the highest scores and working backwards. So there was a very direct causal link between throwing the test out and these plaintiffs not being promoted.
Instead of framing this as the lack of adverse employment action, the city accepted the plaintiffs’ characterization (both that it was an adverse action and that the action was taken based on the race of those involved) and instead argued that the decision to not promote (by throwing the test out) didn’t discriminate on the basis of race because no one was promoted, Black, White, or Latino.
Marcia McCormick - February 6, 2009 at 4:52 pm
That second paragraph was a little garbled; sorry. What I meant was that the City accepted the plaintiffs’ characterization of the issue: that step one of the plaintiffs’ argument was that there had been an adverse employment action; and step two was that the motivation for the action was race. The city challenged step two, but also framed it to encompass a challenge to step one by arguing that no one got promoted, so these plaintiffs didn’t suffer anything different from what everybody suffered.
JP - February 6, 2009 at 5:35 pm
Marcia,
I’ve skimmed the cert petition and opposition, which are not entirely clear on the details of the district court proceedings. You’re first paragraph seems correct, but I’m curious about this sentence in your second post:
“The city … argu[ed] that no one got promoted, so these plaintiffs didn’t suffer anything different from what everybody suffered.”
Is that really true? I’m almost certain it would be a losing argument. Evidence that individuals outside the protected class (here Race [Caucasian and Hispanic]) received the position can be sufficient to establish the causal element of a prima facie case of discrimination. However, I’m reasonably certain every Circuit has clarified that such a showing is not necessary.
Ricci was decided on second step: the city showed a legitimate, non-discriminatory justification other than race for the failure to promote the Plaintiffs. The city refused to certify the exams based on a good-faith belief that the use of the exams violated Title VII.
(The Plaintiffs argued, unsuccessfully, that the city should bear the burden of proving that the exams in fact violated Title VII. Also, an amicus brief in the 2nd Circuit argued that the district court should have applied a mixed-motive analysis, but Plaintiffs [bizarrely] waived that argument below.)
Marcia McCormick - February 6, 2009 at 9:19 pm
JP, you’re right that the case was decided on the second step–that the plaintiffs couldn’t demonstrate that the reason proffered by the City was discriminatory or a pretext for discrimination. I was just addressing the way the issues were framed before the district court as a way to explain why the adverse employment action piece wasn’t at issue. But at the trial level, the City did challenge the plaintiffs’ prima facie case.
The District Court opinion, 554 F.Supp.2d 142, 152, states, “Defendants do not dispute the first three prongs of the test [1. membership in protected class; 2. qualified for promotion; 3. adverse employment action], but argue that plaintiffs cannot establish an inference of discrimination because all applicants were treated the same, as nobody was promoted off the examination lists.”
I suppose, since the defendants prevailed, they could actually raise the issue on appeal as an alternative ground to support the judgment. Waiver doesn’t apply quite the same way to appelles/respondents. But that would be a bit risky and outside of the question the Court granted cert. on. Not that that always matters.
Tristin Green - February 6, 2009 at 11:13 pm
Interesting comments. Orin, yes, it’s the lower courts that have applied the requirement, though I think it likely that the Supreme Court will adopt an adverse employment action requirement of some kind when it does face the issue. The question will be how broadly the requirement is defined.
As to whether the plaintiffs in the Ricci case suffered an adverse employment action? As I understand it, the ranking on the test determined “eligibility” for promotion. Someone who is promoted after, say, having taken another test will not have suffered an adverse employment action. There’s no indication in the facts as I read them that the firefighters who ranked high on the test have been passed over for promotion altogether; rather, the implication is that they will be required to take another test or go through a different promotion procedure. Perhaps the adverse employment action requirement was never raised because everyone thought there would be “a direct causal link,” as Marcia puts it, to a denial of promotion, even if it hadn’t yet taken place, but that’s exactly why I think this is an odd aspect of the case. Plaintiffs in other cases have to wait until the denial has taken place, and then prove that the denial was caused by the earlier discriminatory decision (e.g., poor evaluation, failure to train, etc.). Then again, maybe it’s because this is really more of a systemic discrimination case about what policies or practices are permitted under Title VII.
Of course, aside from the adverse employment action requirement applied by the lower courts for claims under Title VII, an argument can be made that the department’s action, although motivated by race considerations, did not single out any individuals for race-based treatment (much like a decision to expand recruitment efforts to include a more diverse population) and therefore did not violate the nondiscrimination mandate of Title VII. I think that’s what the district court was trying to say, but that’s another issue . . . .
DC - February 7, 2009 at 10:32 am
I’m confused — are you saying that the Supreme Court has not recognized that there is an adverse-action requirement for Title VII discrimination claims? Isn’t that what section 703(a)(1) means by making it unlawful for an employer “to fail or refuse to hire or to discharge” an employee on a discriminatory basis? And hasn’t this been part of a plaintiff’s prima facie case since McDonnell Douglas?
Joe Anzio - February 7, 2009 at 4:53 pm
You are all not grasping the unidsputed facts here. The city charter, applicable civil service regulations, and CT state law all required the filling of vacancies with the most qualified as determined by exam performance and score. The CT Supreme Court, in another similar case against New Haven, unanimously stuck down New Haven’s skirting of these rules and ordered the city to comply strictly with these laws. Accordingly, the city is on record as saying they took the action that they did because otherwise they would have had to promote the petitioners and they cited the reason why they refused to do that: disparate impact, Title VII concerns, etc. But there is no dispute that had the city not done what it did, the petitioners would have been promoted. Thus, it is a classic refusal to hire situation and I don’t know how Green could possibly say there was no adverse action here. That seems plain as day. To the extent that failing or low-scoring applicants also “were not promoted” seems a silly argument in light of the fact that they were not entitled to be promoted because they either failed the tests or performed poorly on them. The petitioners, on the other hand, by the city’s own admission, lost the promotions. A do-over of the competition doesn’t matter for gettiing a promotion five years later that you should have gotten five years earlier translates to huge salary and pension losses as well as a barrier to future advancement to higher ranks. That is, you need to be a Lt. to become a Cpt, and so on up the line. Thus, the city will be be hard pressed to show there was no injury here.
Kath - February 8, 2009 at 11:59 am
To JP: Since mixed motives is an “affirmative defense” by which the employer alternately asserts that even if race (or gender or whatever) was shown to have been a factor, it remains that the adverse action would have occurred even in the absence of the prohibited factor, how is it that this defense is waived by the plaintiffs? Did not the defendants waive it by insisting the case be analyzed only under McDonnell Douglas? Since race was the undisputed reason for the city’s action I don’t see any basis for a conclusion that the adverse action would have occurred even in the absence of consideration of race – again it seems clear that but for race, petitioners, by the city’s admission would have been promoted. So this case doesn’t fit into any traditional Title VII framwwork really. In any event, does this framework question really matter since plaintiffs went in principly on equal protection grounds?(as I understand from the SC briefing so far.) That is, no matter how you interpret Title VII, the city’s action fails upon all counts under the EPC. I don’t see any preexisting authority to support the notion that a race-driven governmental action to remedy unintentional disparate impact under the rubric of Title VII is exempted from strict scrutiny. All interesting stuff.
Kath - February 8, 2009 at 12:01 pm
To JP: Since mixed motives is an “affirmative defense” by which the employer alternately asserts that even if race (or gender or whatever) was shown to have been a factor, it remains that the adverse action would have occurred even in the absence of the prohibited factor, how is it that this defense is waived by the plaintiffs? Did not the defendants waive it by insisting the case be analyzed only under McDonnell Douglas? Since race was the undisputed reason for the city’s action I don’t see any basis for a conclusion that the adverse action would have occurred even in the absence of consideration of race – again it seems clear that but for race, petitioners, by the city’s admission would have been promoted. So this case doesn’t fit into any traditional Title VII framwwork really. In any event, does this framework question really matter since plaintiffs went in principly on equal protection grounds?(as I understand from the SC briefing so far.) That is, no matter how you interpret Title VII, the city’s action fails upon all counts under the EPC. I don’t see any preexisting authority to support the notion that a race-driven governmental action to remedy unintentional disparate impact under the rubric of Title VII is exempted from strict scrutiny. All interesting stuff.
JP - February 9, 2009 at 11:00 am
Kath,
I don’t think it’s quite right to say “mixed motives” is an affirmative defense. Rather, in a mixed motives case, it is an affirmative defense that even if race was a factor in the decision, the employment action would have been taken anyway for other legitimate reasons. [Also, this is not a defense to liability, only compensatory damages.]
In this case, Plaintiffs insisted that the case be analyzed only under McDonnell Douglas, and accordingly waived their ability to proceed under the mixed motives proof structure.
Also, race was not the undisputed reason for the failure to promote. The Defendants argued that the legitimate, non-discriminatory reason for the failure to promote was concern that the selection process was illegal (i.e., it had an unlawful disparate impact under Title VII).
Plaintiffs argued that this was not non-discriminatory, because the concerns arose only due to the racial composition of the exam results. There is also the question whether the refusal to certify the exam results violated the provision of Title VII making it unlawful to to “adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race.”
Kath - February 9, 2009 at 11:34 am
JP – I get what you are suggesting but the courts labeled it an “affirmative defense”(and it always goes to the jury as such with jurors told the employer, having asserted it, bears the burden of proof.) As to a legitimate motive, the employer must articulate a motive that does not include consideration of a statutorily prohibited factor (whether it is gender, race, religion, etc). Call it what you want (e.g.,”concern over disparate impact”) but at its root it is overt consideration of the successful applicants’ race. Thus, the employer’s burden on the second prong of McDonnell was not met here. You can’t (or shouldn’t) be able to meet that burden with a mere proxy for race. Also, consider another failure to hire situation: a furniture retailer refuses hire to a qualified and experienced black applicant who responds to a job ad. Assume further there are no qualified competing white applicants. The employer refuses hire to the black applicant because he has “too many blacks on the sales floor already” and thinks it’s good for his business image and customer interaction that he have a diverse sales force, and decides he should re-run the job ad as an affirmative effort to ensure “equal opportunity” to others of a different race. You see what I mean . . . name me a court that wouldn’t hammer that employer. When it comes down to it, I think what we are really confronting here is a clumsy effort to sustain a dual Title VII jurisprudence based on the race of the victim and that effort bleeds through Ricci. The district court held petitioners had no Title VII-protected interest in the mere “opportunity” for promotion. Apart from the fact that “opportunity” is right in the statute as a protected right, name another district court (or cicuit court) that has applied that notion to minority plaintiffs. You won’t find one.
JP - February 9, 2009 at 1:09 pm
Kath,
The problem is that your analysis places employers in a Catch-22. If the city had certified the exam results, it could have faced a disparate impact lawsuit by the unsuccessful Black employees. (Indeed, I gather from the cert petition that such litigation was threatened.)
Kath - February 16, 2009 at 3:40 pm
JP – so what? An employer can’t just cave in to a threatened (and probably meritless)disparate impact suit. If that was the law, racial quotas would rule the day. Disparate impact, many holdings warned, may not be used as a back door to racial balancing. Plus, no employer, especially not a government employer, can engage in blatant intentional race discrimination because it fears a DI claim. Remember disparate impact does not violate Title VII – a showing of DI is but the first step in the analysis. By all accounts any test-takers who threatened a DI suit had no basis to attack these tests as not job-related and accurate in their results. And what’s up with Tristin Green? Didn’t she read the record? The city conceded there was an adverse action and the district court recognized this no-brainer as well. How can you possibly say a refusal to hire (or promote) an applicant is not an adverse action. Geez . . . .
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Frostlyne - June 21, 2009 at 10:28 am
I would say that the idea of disparate impact is important, but if one looks at the precedent set forth by the Supreme Court in the Arlington v Metropolitan case and the Washington v Davis Case, there are times when disparate impact is allowed. If there is no deliberate intent – which is established by IOS’s protocal for creating the test – than those that failed the test would have no standing to sue. However, because the city deliberatly threw the test out because of lack of enough minorities qualifying for positions, it does become deliberate against the white firefighters. To further prove this, it is also allowed should the city be able to prove that the information on the test was not meant to be bias, but was in fact job-related. None of the experts provided by the City actually looked at the test, they just focused on the numbers alone, something that Washington case claims isn’t enough to claim discrimination under Titvle VII. i am shocked at how the District Court ruled, and expect that it will end up opposite in the Supreme Court – however, wouldn’t surprised if they used this as an opportunity to throw out or significantly reduce the validity of title VII
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