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Full Opinion
concurring.
I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-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 VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise 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 580-581. 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 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 VII’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 578-579; 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 designed his hiring practices to achieve the same end? Surely he would. In
It might be possible to defend the law by framing it as simply an evidentiary tool used to identify genuine, intentional discrimination — to “smoke out,” as it were, disparate 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 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 arguably 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., nonracially motivated) conduct, or perhaps even for good faith plus hiring standards that are entirely reasonable. See post, at 621-623, and n. 3 (Ginsburg, J., dissenting) (describing 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 unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or
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 609 (opinion of Ginsburg, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’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 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 component of the determination that must be made when an employer justifies an employment decision, like the one made in
The dissent advocates a different objective component of the governing standard. According to the dissent, the objective component should be whether the evidence provided “good cause” for the decision, post, at 625, and the dissent argues — incorrectly, in my view — that no reasonable 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 concern about disparate-impact litigation was simply a pretext. 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.
A
As initially described by the dissent, see post, at 609-618, 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) (internal quotation marks omitted), summarily aff’d, 530 F. 3d 87 (CA2 2008) (per curiam).
This admission finds ample support in the record. Rev. Boise Kimber, to whom the District Court referred, 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.
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 Reverend Kimber as a character witness when Reverend Kimber — then the manager of a funeral home — was prosecuted 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 political 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), Reverend Kimber is an invaluable political
In 2002, the Mayor picked Reverend 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 management.” Id., at 127a; see also id., at 928a-929a. In that capacity, Reverend 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, Hartford Courant, June 13, 2002, p. B2. After protests about this comment, Reverend 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 line to the mayor,” id., at 816a.
Almost immediately after the test results were revealed in “early January” 2004, Reverend Kimber called the City’s chief administrative officer, Karen Dubois-Walton, who “acts ‘on behalf of the Mayor.’” Id., at 221a, 812a. DuboisWalton and Reverend Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. Id., at 815a-816a. As discussed in further detail below, Reverend 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
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 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 immediately, Reverend Kimber began to exert political pressure on the CSB. He began a loud, minutes-long outburst that required the CSB chairman to shout him down and hold him out of order three times. See id., at 187a, 467a-468a; see
Four days after the CSB’s first meeting, Mayor DeStefano’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 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 Reverend Kimber “considered] [him] a bigot because [his] face is white.” Id., at 496a. The offended
One of Reverend 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 exclaimed, ‘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 May- or’s office to make the CSB meetings appear deliberative, see id., at 190a, executive officials remained publicly uncommitted about certification — while simultaneously “work[ing] as a team” behind closed doors with the secretary of the CSB to devise a political 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 recommending 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
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 competitors in the test-development business. Hornick never “stud-tied] the test [that Legel developed] at length or in detail,” id., at 549a; see also id., at 203a, 553a, but Hornick 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 corrected Hornick. Id., at 552a (“Actually, it was, Dr. Hornick”). 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, 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.”
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. Accordingly, on the evening of March 17th, Dubois-Walton sent an e-mail to the Mayor, the Mayor’s executive assistant, 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 alternative drafts, Burgett replied: “[W]ell, that seems to say it all. Let’s hope draft #2 hits the shredder tomorrow nite.” Id., at 457a.
Soon after the CSB voted against certification, Mayor De-Stefano 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 following. 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 illegal and would expose the City to disparate-impact liability. But in the event that the CSB
Ill
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 discrimination.” Post, at 642. The dissent misrepresents my position: I draw no such equation. Of course “there are many ways in which a politician can attempt to win over a constituency — including a racial constituency — without engaging in unlawful discrimination.” Ibid. 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 making employment decisions.
The second point concerns the dissent’s main argument— that efforts by the Mayor and his staff to scuttle the test results are irrelevant because the ultimate decision was made by the CSB. According to the dissent, “[t]he relevant decision was made by the CSB,” post, at 640, and there is “scant cause to suspect” that anything done by the opponents
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 influencie] over the titular decisionmaker.” Russell v. McKinney Hosp. Venture, 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 decisionmaking 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 640. But the good faith of the CSB members 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.,
* * *
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 3-month study period. Id., at 176a-177a.
Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even
The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post this page and 644. 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 been denied them.
Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.
In assessing claims of race discrimination, “[c]ontext 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 minorities. 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 Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 563. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white. ” Ante, at 580. That preten
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 department in which members of racial and ethnic minorities 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 government employers in 1972, Congress took note of a U. S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92-288, p. 17 (1971). According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal em
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 percent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]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 representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater proportion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, 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)
B
By order of its charter, New Haven must use competitive 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 fitness.” 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 consider what sort of “practical” examination would “fairly 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 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
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 candidates passed at about half the rate