In the first, Ricci v. DeStefano, 129 S. Ct. 2658 (June 29, 2009), the Court (5-4) ruled in favor of a group of white firefighters who had challenged New Haven, Connecticut’s decision to essentially throw out the results of an exam used to determine promotions to captain and lieutenant positions within the fire department. Within the test results, white candidates outperformed minority candidates, and only two minority candidates (both Hispanic) were likely to be promoted based on the results. After considering the results, and fearing discrimination and disparate-impact lawsuits, the city ultimately opted to disregard the test results. The white firefighters then brought suit against the city, alleging that discarding the test results amounted to disparate treatment against them, based on race. After a federal court sided with the city and the Second Circuit affirmed that decision (Supreme Court Justice nominee Sonia Sotomayor participated in the decision), the firefighters appealed to the U.S. Supreme Court. 

 

The Supreme Court reversed, and stated that the city's refusal to certify promotion test results because no black firefighters were eligible for promotion constituted disparate treatment of non-black firefighters who were denied promotions in violation of Title VII, because there was no strong basis in evidence that the test was deficient and discarding results was necessary to avoid disparate impact to the non-black firefighters. Interestingly, the Court stated: “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 light 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.”

 

In the second case, Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (June 18, 2009), the Court held (5-4) that there is no “mixed motive” burden shifting framework in a case brought under the Age Discrimination in Employment Act (“ADEA”). Importantly, the Court stated that a mixed motive jury instruction is never proper in an ADEA case, because that framework is not a part of the ADEA. The Court stated that ADEA plaintiffs must prove that their age was the but-for cause of an adverse employment action, and not merely one of several factors. The burden does not shift to the employer to show that it would have taken the action regardless of the employee’s age, even when an employee produces some evidence that his or her age was a motivating factor in the decision. The Court based this result on its reading of the statute, stating that the mixed motive analysis is present in Title VII, but is not found in the ADEA. This decision is significant in that the Court has long interpreted the ADEA in a fashion consistent with Title VII due to the similarity in language and purpose of the two acts. This decision marks a sharp shift in the state of the law in that regard.

 

Any questions regarding this Advisory can be directed to Corey Adamson at (717) 255-7639 or cadamson@tthlaw.com