Corporate America is increasingly focused on diversity in the workplace. The U.S. Supreme Court’s recent decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), complicates efforts in this area. In Ricci, white and Hispanic firefighters sued the City of New Haven for disparate treatment (i.e., intentional) discrimination under Title VII of the Civil Rights Act of 1964 after New Haven discarded the results of two promotional examinations in the face of evidence that the tests had a disparate impact on minorities. Id. at 2664.
By way of background, Title VII prohibits intentional discrimination because of an individual’s race, color, religion, sex and national origin (each a “Protected Status”). 42 USC §2000e-2(a)(1); 129 S. Ct. at 2672. It also prohibits the use of facially neutral employment practices that are discriminatory in operation, which is referred to as disparate impact discrimination.
