Ricci v. DeStefano, 557 U.S. 557

2658 129 SUPREME COURT REPORTER

underlying response by school administra-tors was reasonable and justified. I can-not join this regrettable decision. I, there-fore, respectfully dissent from the Court’sdetermination that this search violated theFourth Amendment.

,

Frank RICCI et al., Petitioners,

v.

John DeSTEFANO et al.

Frank Ricci, et al., Petitioners,

v.

John DeStefano et al.Nos. 07–1428, 08–328.

Argued April 22, 2009.

Decided June 29, 2009.

Background: White firefighters and oneHispanic firefighter sued city and city offi-cials, alleging that city violated Title VIIby refusing to certify results of promotion-al examination, based on city’s belief thatits use of results could have disparate im-pact on minority firefighters. The UnitedStates District Court for the District ofConnecticut, Janet Bond Arterton, J., 554F.Supp.2d 142, entered summary judg-ment for city and city officials. Firefightersappealed. The Court of Appeals, 530 F.3d87, affirmed. Certiorari was granted.

Holdings: The Supreme Court, JusticeKennedy, held that:

(1) city’s refusal to certify results was vio-lation of Title VII’s disparate-treat-ment prohibition absent some valid de-fense;

(2) before employer can engage in inten-tional discrimination for asserted pur-

pose of avoiding unintentional dispa-rate impact, employer must havestrong basis in evidence to believe itwill be subject to disparate-impact lia-bility if it fails to take race-consciousaction;

(3) city officials lacked strong basis in evi-dence to believe that examinationswere not job-related and consistentwith business necessity; and

(4) city officials lacked strong basis in evi-dence to believe there existed equallyvalid, less-discriminatory alternative touse of examinations that served city’sneeds but that city refused to adopt.

Reversed and remanded.

Justice Scalia filed concurring opinion.

Justice Alito filed concurring opinionjoined by Justices Scalia and Thomas.

Justice Ginsburg filed dissenting opinionjoined by Justices Stevens, Souter, andBreyer.

1. Constitutional Law O976

Federal Courts O462

Because decision for firefighters ontheir statutory Title VII claim would pro-vide relief sought in their action allegingviolations of Title VII and their equal pro-tection rights, Supreme Court would con-sider statutory claim first. U.S.C.A.Const.Amend. 14; Civil Rights Act of 1964,§ 701 et seq., 42 U.S.C.A. § 2000e et seq.

2. Civil Rights O1138, 1140

Title VII prohibits both intentionaldiscrimination, known as ‘‘disparate treat-ment,’’ as well as, in some cases, practicesthat are not intended to discriminate butin fact have a disproportionately adverseeffect on minorities, known as ‘‘disparate

2659RICCI v. DESTEFANOCite as 129 S.Ct. 2658 (2009)

impact.’’ Civil Rights Act of 1964, § 701et seq., 42 U.S.C.A. § 2000e et seq.

See publication Words and Phras-es for other judicial constructionsand definitions.

3. Civil Rights O1138Disparate-treatment Title VII cases

present the most easily understood type ofdiscrimination, and occur where an em-ployer has treated a particular person lessfavorably than others because of a protect-ed trait. Civil Rights Act of 1964,§ 703(a)(1), 42 U.S.C.A. § 2000e–2(a)(1).

4. Civil Rights O1138A disparate-treatment Title VII plain-

tiff must establish that the defendant hada discriminatory intent or motive for tak-ing a job-related action. Civil Rights Actof 1964, § 703(a)(1), 42 U.S.C.A. § 2000e–2(a)(1).

5. Civil Rights O1142, 1234City’s refusal to certify results of fire-

fighter promotion examination, based oncity’s belief that doing so could have dispa-rate impact on minority firefighters be-cause white candidates had outperformedminority candidates, was violation of TitleVII’s disparate-treatment prohibition ab-sent some valid defense, since, howeverwell intentioned or benevolent city’s moti-vation might have seemed, city made itsemployment decision because of race.Civil Rights Act of 1964, § 703(a)(1), 42U.S.C.A. § 2000e–2(a)(1).

6. Civil Rights O1104, 1107The purpose of Title VII is that the

workplace be an environment free of dis-crimination, where race is not a barrier toopportunity. Civil Rights Act of 1964,§ 701 et seq., 42 U.S.C.A. § 2000e et seq.

7. Statutes O207When two prohibitions in a statute

could be in conflict absent a rule to recon-cile them, the Supreme Court must inter-pret the statute to give effect to bothprovisions where possible.

8. Civil Rights O1140

It is not impermissible under TitleVII for an employer to take race-basedadverse employment actions in order toavoid disparate-impact liability. CivilRights Act of 1964, § 701 et seq., 42U.S.C.A. § 2000e et seq.


An employer is not required to be inviolation of Title VII’s disparate-impactprovision before it can use compliance as adefense in a disparate-treatment suit.Civil Rights Act of 1964, § 703(a)(1),(k)(1)(A)(i), 42 U.S.C.A. § 2000e–2(a)(1),(k)(1)(A)(i).


Congress intended for voluntary com-pliance to be the preferred means ofachieving the objectives of Title VII. CivilRights Act of 1964, § 701 et seq., 42U.S.C.A. § 2000e et seq.


An employer’s good-faith belief thatits actions are necessary to comply withTitle VII’s disparate-impact provision isnot enough to justify race-conscious con-duct. Civil Rights Act of 1964, § 703(a)(1),42 U.S.C.A. § 2000e–2(a)(1).


The purpose of Title VII is to promotehiring on the basis of job qualifications,rather than on the basis of race or color.Civil Rights Act of 1964, § 701 et seq., 42U.S.C.A. § 2000e et seq.


Congress has imposed Title VII liabil-ity on employers for unintentional discrim-ination in order to rid the workplace ofpractices that are fair in form, but discrim-inatory in operation. Civil Rights Act of1964, § 703(k)(1)(A)(i), 42 U.S.C.A.§ 2000e–2(k)(1)(A)(i).


14. Civil Rights O1142, 1238An employer does not violate Title

VII by making affirmative efforts to usetesting to ensure that all groups have afair opportunity to apply for promotionsand to participate in the process by whichpromotions will be made, but once thatprocess has been established and employ-ers have made clear their selection crite-ria, they may not then invalidate the testresults, thus upsetting an employee’s legit-imate expectation not to be judged on thebasis of race. Civil Rights Act of 1964,§ 703(j), 42 U.S.C.A. § 2000e–2(j).

15. Civil Rights O1118, 1142Title VII does not prohibit an employ-

er from considering, before administeringa test or practice, how to design that testor practice in order to provide a fair op-portunity for all individuals, regardless oftheir race. Civil Rights Act of 1964, § 701et seq., 42 U.S.C.A. § 2000e et seq.

16. Civil Rights O1140, 1238Under Title VII, before an employer

can engage in intentional discriminationfor the asserted purpose of avoiding orremedying an unintentional disparate im-pact, the employer must have a strongbasis in evidence to believe it will be sub-ject to disparate-impact liability if it failsto take the race-conscious, discriminatoryaction. Civil Rights Act of 1964,§ 703(a)(1), (k)(1)(A)(i), 42 U.S.C.A.§ 2000e–2(a)(1), (k)(1)(A)(i).

17. Federal Civil Procedure O2543On a motion for summary judgment,

facts must be viewed in the light mostfavorable to the nonmoving party only ifthere is a genuine dispute as to those facts.Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.

18. Federal Civil Procedure O2470Where the record taken as a whole

could not lead a rational trier of fact tofind for the summary judgment nonmov-

ant, there is no genuine issue for trial.Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A.

19. Civil Rights O1140A prima facie case of disparate-impact

liability under Title VII is essentially athreshold showing of a significant statisti-cal disparity and nothing more. CivilRights Act of 1964, § 703(k)(1)(A)(i), 42U.S.C.A. § 2000e–2(k)(1)(A)(i).

20. Civil Rights O1142, 1234City officials lacked strong basis in

evidence to believe that city’s promotionalexaminations for firefighters were not job-related and consistent with business neces-sity, and that use of examination results inwhich white candidates outperformed mi-nority candidates, therefore would havedisparate impact on minorities, and, thus,officials failed to establish defense on suchbasis to liability under Title VII’s dispa-rate-treatment provision, where writtenexaminations were devised after painstak-ing analyses of captain and lieutenant posi-tions, examination’s developer drew ques-tions from source material approved byfire department, developer addressed chal-lenges to particular questions, and cityturned blind eye to evidence that sup-ported examinations’ validity. Civil RightsAct of 1964, § 703(a)(1), (k)(1)(A)(i), 42U.S.C.A. § 2000e–2(a)(1), (k)(1)(A)(i).

21. Civil Rights O1142, 1234City officials lacked strong basis in

evidence to believe there existed equallyvalid, less-discriminatory alternative to useof city’s promotional examinations thatserved city’s needs but that city refused toadopt because white candidates had out-performed minority candidates, and thatuse of examination results therefore wouldhave disparate impact on minorities, and,thus, officials failed to establish defense onsuch basis to liability under Title VII’sdisparate-treatment provision, where therewas no evidence that changing formula for


weighing written and oral portions of testwas equally valid way of choosing candi-dates, ‘‘banding’’ alternative would haveviolated Title VII and thus was not avail-able to city, and isolated statements byindustrial/organizational psychologist couldnot be basis for finding equally valid alter-natives. Civil Rights Act of 1964,§ 703(a)(1), (k)(1)(A)(ii), (k)(1)(C), (l), 42U.S.C.A. § 2000e–2(a)(1), (k)(1)(A)(ii),(k)(1)(C), (l).

22. Civil Rights O1142Fear of litigation alone cannot justify

an employer’s reliance on race in rejectingexamination results, to the detriment ofindividuals who passed examinations andqualified for promotions. Civil Rights Actof 1964, § 703(a)(1), (k)(1)(A)(i), 42U.S.C.A. § 2000e–2(a)(1), (k)(1)(A)(i).

Syllabus *

New Haven, Conn. (City), uses objec-tive examinations to identify those fire-fighters best qualified for promotion.When the results of such an exam to fillvacant lieutenant and captain positionsshowed that white candidates had outper-formed minority candidates, a rancorouspublic debate ensued. Confronted witharguments both for and against certifyingthe test results—and threats of a lawsuiteither way—the City threw out the resultsbased on the statistical racial disparity.Petitioners, white and Hispanic firefight-ers who passed the exams but were denieda chance at promotions by the City’s refus-al to certify the test results, sued the Cityand respondent officials, alleging that dis-carding the test results discriminatedagainst them based on their race in viola-tion of, inter alia, Title VII of the CivilRights Act of 1964. The defendants re-sponded that had they certified the testresults, they could have faced Title VIIliability for adopting a practice having a

disparate impact on minority firefighters.The District Court granted summary judg-ment for the defendants, and the SecondCircuit affirmed.

Held: The City’s action in discardingthe tests violated Title VII. Pp. 2672 –2682.

(a) Title VII prohibits intentional actsof employment discrimination based onrace, color, religion, sex, and national ori-gin, 42 U.S.C. § 2000e–2(a)(1) (disparatetreatment), as well as policies or practicesthat are not intended to discriminate butin fact have a disproportionately adverseeffect on minorities, § 2000e–2(k)(1)(A)(i)(disparate impact). Once a plaintiff hasestablished a prima facie case of disparateimpact, the employer may defend by dem-onstrating that its policy or practice is ‘‘jobrelated for the position in question andconsistent with business necessity.’’ Ibid.If the employer meets that burden, theplaintiff may still succeed by showing thatthe employer refuses to adopt an availablealternative practice that has less disparateimpact and serves the employer’s legiti-mate needs. §§ 2000e–2(k)(1)(A)(ii) and(C). Pp. 2672 – 2673.

(b) Under Title VII, before an em-ployer can engage in intentional discrimi-nation for the asserted purpose of avoidingor remedying an unintentional, disparateimpact, the employer must have a strongbasis in evidence to believe it will be sub-ject to disparate-impact liability if it failsto take the race-conscious, discriminatoryaction. The Court’s analysis begins withthe premise that the City’s actions wouldviolate Title VII’s disparate-treatment pro-hibition absent some valid defense. Allthe evidence demonstrates that the Cityrejected the test results because the high-

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


er scoring candidates were white. With-out some other justification, this express,race-based decisionmaking is prohibited.The question, therefore, is whether thepurpose to avoid disparate-impact liabilityexcuses what otherwise would be prohibit-ed disparate-treatment discrimination.The Court has considered cases similar tothe present litigation, but in the context ofthe Fourteenth Amendment’s Equal Pro-tection Clause. Such cases can providehelpful guidance in this statutory context.See Watson v. Fort Worth Bank & Trust,487 U.S. 977, 993, 108 S.Ct. 2777, 101L.Ed.2d 827. In those cases, the Courtheld that certain government actions toremedy past racial discrimination—actionsthat are themselves based on race—areconstitutional only where there is a‘‘strong basis in evidence’’ that the remedi-al actions were necessary. Richmond v.J.A. Croson Co., 488 U.S. 469, 500, 109S.Ct. 706, 102 L.Ed.2d 854; see also Wy-gant v. Jackson Bd. of Ed., 476 U.S. 267,277, 106 S.Ct. 1842, 90 L.Ed.2d 260. Inannouncing the strong-basis-in-evidencestandard, the Wygant plurality recognizedthe tension between eliminating segrega-tion and discrimination on the one handand doing away with all governmentallyimposed discrimination based on race onthe other. 476 U.S., at 277, 106 S.Ct. 1842.It reasoned that ‘‘[e]videntiary support forthe conclusion that remedial action is war-ranted becomes crucial when the remedialprogram is challenged in court by nonmi-nority employees.’’ Ibid. The same inter-ests are at work in the interplay betweenTitle VII’s disparate-treatment and dispa-rate-impact provisions. Applying thestrong-basis-in-evidence standard to TitleVII gives effect to both provisions, allow-ing violations of one in the name of compli-ance with the other only in certain, narrowcircumstances. It also allows the dispa-rate-impact prohibition to work in a man-ner that is consistent with other Title VII

provisions, including the prohibition on ad-justing employment-related test scoresbased on race, see § 2000e–2(l ), and thesection that expressly protects bona fidepromotional exams, see § 2000e–2(h).Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutoryconstruction in order to resolve any con-flict between Title VII’s disparate-treat-ment and disparate-impact provisions. Pp.2673 – 2677.

(c) The City’s race-based rejection ofthe test results cannot satisfy the strong-basis-in-evidence standard. Pp. 2677 –2681.

(i) The racial adverse impact in thislitigation was significant, and petitionersdo not dispute that the City was faced witha prima facie case of disparate-impact lia-bility. The problem for respondents isthat such a prima facie case—essentially, athreshold showing of a significant statisti-cal disparity, Connecticut v. Teal, 457 U.S.440, 446, 102 S.Ct. 2525, 73 L.Ed.2d 130,and nothing more—is far from a strongbasis in evidence that the City would havebeen liable under Title VII had it certifiedthe test results. That is because the Citycould be liable for disparate-impact dis-crimination only if the exams at issue werenot job related and consistent with busi-ness necessity, or if there existed an equal-ly valid, less discriminatory alternativethat served the City’s needs but that theCity refused to adopt. §§ 2000e–2(k)(1)(A),(C). Based on the record the parties de-veloped through discovery, there is no sub-stantial basis in evidence that the test wasdeficient in either respect. Pp. 2677 –2678.

(ii) The City’s assertions that the ex-ams at issue were not job related andconsistent with business necessity are bla-tantly contradicted by the record, whichdemonstrates the detailed steps taken todevelop and administer the tests and the


painstaking analyses of the questionsasked to assure their relevance to thecaptain and lieutenant positions. The tes-timony also shows that complaints thatcertain examination questions were con-tradictory or did not specifically apply tofirefighting practices in the City were ful-ly addressed, and that the City turned ablind eye to evidence supporting the ex-ams’ validity. Pp. 2678 – 2679.

(iii) Respondents also lack a strongbasis in evidence showing an equally valid,less discriminatory testing alternative thatthe City, by certifying the test results,would necessarily have refused to adopt.Respondents’ three arguments to the con-trary all fail. First, respondents refer totestimony that a different composite-scorecalculation would have allowed the City toconsider black candidates for then-openpositions, but they have produced no evi-dence to show that the candidate weight-ing actually used was indeed arbitrary, orthat the different weighting would be anequally valid way to determine whethercandidates are qualified for promotions.Second, respondents argue that the Citycould have adopted a different interpreta-tion of its charter provision limiting pro-motions to the highest scoring applicants,and that the interpretation would haveproduced less discriminatory results; butrespondents’ approach would have violatedTitle VII’s prohibition of race-based ad-justment of test results, § 2000e–2(l ).Third, testimony asserting that the use ofan assessment center to evaluate candi-dates’ behavior in typical job tasks wouldhave had less adverse impact than writtenexams does not aid respondents, as it iscontradicted by other statements in therecord indicating that the City could nothave used assessment centers for the ex-ams at issue. Especially when it is notedthat the strong-basis-in-evidence standardapplies to this case, respondents cannotcreate a genuine issue of fact based on a

few stray (and contradictory) statementsin the record. Pp. 2679 – 2681.

(iv) Fear of litigation alone cannotjustify the City’s reliance on race to thedetriment of individuals who passed theexaminations and qualified for promotions.Discarding the test results was impermis-sible under Title VII, and summary judg-ment is appropriate for petitioners on theirdisparate-treatment claim. If, after it cer-tifies the test results, the City faces adisparate-impact suit, then in light of to-day’s holding the City can avoid disparate-impact liability based on the strong basisin evidence that, had it not certified theresults, it would have been subject to dis-parate-treatment liability. P. 2681.

530 F.3d 87, reversed and remanded.

KENNEDY, J., delivered the opinionof the Court, in which ROBERTS, C.J.,and SCALIA, THOMAS, and ALITO, JJ.,joined. SCALIA, J., filed a concurringopinion. ALITO, J., filed a concurringopinion, in which SCALIA and THOMAS,JJ., joined. GINSBURG, J., filed adissenting opinion, in which STEVENS,SOUTER, and BREYER, JJ., joined.

Gregory S. Coleman, for Petitioners.

Edwin S. Kneedler, for United States asamicus curiae, by special leave of theCourt, supporting vacatur and remand.

Christopher J. Meade, for Respondents.

Karen Lee Torre, Norman A. PattisLLC, New Haven, CT, Gregory S. Cole-man, Edward C. Dawson, Dori K. Gold-man, Ryan P. Bates, Yetter, Warden &Coleman, L.L.P., Austin, TX, for Petition-ers.

Victor A. Bolden, Vikki Cooper, Kath-leen M. Foster, New Haven, CT, David T.Goldberg, Donahue & Goldberg, LLP,New York, NY, Richard A. Roberts, Todd


J. Richardson, Stacey L. Pitcher, Nuzzo &Roberts, L.L.C., Cheshire, CT, Seth P.Waxman, Christopher J. Meade, Anne K.Small, D. Hien Tran, Daniel C. Richenthal,Pamela K. Bookman, Julia M. Lipez, KeithBradley, Wilmer Cutler Pickering Haleand Dorr LLP, Washington, DC, for Re-spondents.

For U.S. Supreme Court briefs, see:

2009 WL 453242 (Pet.Brief)

2009 WL 740763 (Resp.Brief)

2009 WL 952214 (Reply.Brief)

Justice KENNEDY delivered theopinion of the Court.

In the fire department of New Haven,Connecticut—as in emergency-serviceagencies throughout the Nation—firefight-ers prize their promotion to and within theofficer ranks. An agency’s officers com-mand respect within the department andin the whole community; and, of course,added responsibilities command increasedsalary and benefits. Aware of the intensecompetition for promotions, New Haven,like many cities, relies on objective exami-nations to identify the best qualified candi-dates.

In 2003, 118 New Haven firefighterstook examinations to qualify for promotionto the rank of lieutenant or captain. Pro-motion examinations in New Haven (orCity) were infrequent, so the stakes werehigh. The results would determine whichfirefighters would be considered for pro-motions during the next two years, and theorder in which they would be considered.Many firefighters studied for months, atconsiderable personal and financial cost.

When the examination results showedthat white candidates had outperformedminority candidates, the mayor and otherlocal politicians opened a public debatethat turned rancorous. Some firefightersargued the tests should be discarded be-

cause the results showed the tests to bediscriminatory. They threatened a dis-crimination lawsuit if the City made pro-motions based on the tests. Other fire-fighters said the exams were neutral andfair. And they, in turn, threatened a dis-crimination lawsuit if the City, relying onthe statistical racial disparity, ignored thetest results and denied promotions to thecandidates who had performed well. Inthe end the City took the side of those whoprotested the test results. It threw outthe examinations.

Certain white and Hispanic firefighterswho likely would have been promotedbased on their good test performance suedthe City and some of its officials. Theirsis the suit now before us. The suit allegesthat, by discarding the test results, theCity and the named officials discriminatedagainst the plaintiffs based on their race,in violation of both Title VII of the CivilRights Act of 1964, 78 Stat. 253, as amend-ed, 42 U.S.C. § 2000e et seq., and theEqual Protection Clause of the FourteenthAmendment. The City and the officialsdefended their actions, arguing that if theyhad certified the results, they could havefaced liability under Title VII for adoptinga practice that had a disparate impact onthe minority firefighters. The DistrictCourt granted summary judgment for thedefendants, and the Court of Appeals af-firmed.

We conclude that race-based action likethe City’s in this case is impermissibleunder Title VII unless the employer candemonstrate a strong basis in evidencethat, had it not taken the action, it wouldhave been liable under the disparate-im-pact statute. The respondents, we furtherdetermine, cannot meet that thresholdstandard. As a result, the City’s action indiscarding the tests was a violation of TitleVII. In light of our ruling under the stat-utes, we need not reach the question


whether respondents’ actions may have vi-olated the Equal Protection Clause.

I

This litigation comes to us after theparties’ cross-motions for summary judg-ment, so we set out the facts in somedetail. As the District Court noted, al-though ‘‘the parties strenuously disputethe relevance and legal import of, andinferences to be drawn from, many aspectsof this case, the underlying facts are large-ly undisputed.’’ 554 F.Supp.2d 142, 145(Conn.2006).

A

When the City of New Haven undertookto fill vacant lieutenant and captain posi-tions in its fire department (Department),the promotion and hiring process was gov-erned by the city charter, in addition tofederal and state law. The charter estab-lishes a merit system. That system re-quires the City to fill vacancies in theclassified civil-service ranks with the mostqualified individuals, as determined by job-related examinations. After each exami-nation, the New Haven Civil Service Board(CSB) certifies a ranked list of applicantswho passed the test. Under the charter’s‘‘rule of three,’’ the relevant hiring authori-ty must fill each vacancy by choosing onecandidate from the top three scorers onthe list. Certified promotional lists remainvalid for two years.

The City’s contract with the New Havenfirefighters’ union specifies additional re-quirements for the promotion process.Under the contract, applicants for lieuten-ant and captain positions were to bescreened using written and oral examina-tions, with the written exam accounting for60 percent and the oral exam 40 percent ofan applicant’s total score. To sit for theexaminations, candidates for lieutenantneeded 30 months’ experience in the De-

partment, a high-school diploma, and cer-tain vocational training courses. Candi-dates for captain needed one year’s serviceas a lieutenant in the Department, a high-school diploma, and certain vocationaltraining courses.

After reviewing bids from various con-sultants, the City hired Industrial/Organi-zational Solutions, Inc. (IOS) to developand administer the examinations, at a costto the City of $100,000. IOS is an Illinoiscompany that specializes in designing en-try-level and promotional examinations forfire and police departments. In order tofit the examinations to the New HavenDepartment, IOS began the test-designprocess by performing job analyses toidentify the tasks, knowledge, skills, andabilities that are essential for the lieuten-ant and captain positions. IOS represen-tatives interviewed incumbent captains andlieutenants and their supervisors. Theyrode with and observed other on-duty offi-cers. Using information from those inter-views and ride-alongs, IOS wrote job-anal-ysis questionnaires and administered themto most of the incumbent battalion chiefs,captains, and lieutenants in the Depart-ment. At every stage of the job analyses,IOS, by deliberate choice, oversampled mi-nority firefighters to ensure that the re-sults—which IOS would use to develop theexaminations—would not unintentionallyfavor white candidates.

With the job-analysis information inhand, IOS developed the written exami-nations to measure the candidates’ job-re-lated knowledge. For each test, IOScompiled a list of training manuals, De-partment procedures, and other materialsto use as sources for the test questions.IOS presented the proposed sources tothe New Haven fire chief and assistantfire chief for their approval. Then, usingthe approved sources, IOS drafted a mul-tiple-choice test for each position. Each


test had 100 questions, as required byCSB rules, and was written below a 10th-grade reading level. After IOS preparedthe tests, the City opened a 3–monthstudy period. It gave candidates a listthat identified the source material for thequestions, including the specific chaptersfrom which the questions were taken.

IOS developed the oral examinations aswell. These concentrated on job skills andabilities. Using the job-analysis informa-tion, IOS wrote hypothetical situations totest incident-command skills, firefightingtactics, interpersonal skills, leadership, andmanagement ability, among other things.Candidates would be presented with thesehypotheticals and asked to respond beforea panel of three assessors.

IOS assembled a pool of 30 assessorswho were superior in rank to the positionsbeing tested. At the City’s insistence (be-cause of controversy surrounding previousexaminations), all the assessors came fromoutside Connecticut. IOS submitted theassessors’ resumes to City officials for ap-proval. They were battalion chiefs, assis-tant chiefs, and chiefs from departments ofsimilar sizes to New Haven’s throughoutthe country. Sixty-six percent of the pa-nelists were minorities, and each of thenine three-member assessment panels con-tained two minority members. IOStrained the panelists for several hours onthe day before it administered the exami-nations, teaching them how to score thecandidates’ responses consistently usingchecklists of desired criteria.

Candidates took the examinations in No-vember and December 2003. Seventy-sev-en candidates completed the lieutenant ex-amination—43 whites, 19 blacks, and 15Hispanics. Of those, 34 candidatespassed—25 whites, 6 blacks, and 3 Hispan-ics. 554 F.Supp.2d, at 145. Eight lieuten-ant positions were vacant at the time ofthe examination. As the rule of three

operated, this meant that the top 10 candi-dates were eligible for an immediate pro-motion to lieutenant. All 10 were white.Ibid. Subsequent vacancies would have al-lowed at least 3 black candidates to beconsidered for promotion to lieutenant.

Forty-one candidates completed the cap-tain examination—25 whites, 8 blacks, and8 Hispanics. Of those, 22 candidatespassed—16 whites, 3 blacks, and 3 Hispan-ics. Ibid. Seven captain positions werevacant at the time of the examination.Under the rule of three, 9 candidates wereeligible for an immediate promotion to cap-tain—7 whites and 2 Hispanics. Ibid.

B

The City’s contract with IOS contem-plated that, after the examinations, IOSwould prepare a technical report that de-scribed the examination processes andmethodologies and analyzed the results.But in January 2004, rather than request-ing the technical report, City officials, in-cluding the City’s counsel, Thomas Ude,convened a meeting with IOS Vice Presi-dent Chad Legel. (Legel was the leaderof the IOS team that developed and admin-istered the tests.) Based on the test re-sults, the City officials expressed concernthat the tests had discriminated againstminority candidates. Legel defended theexaminations’ validity, stating that any nu-merical disparity between white and mi-nority candidates was likely due to variousexternal factors and was in line with re-sults of the Department’s previous pro-motional examinations.

Several days after the meeting, Udesent a letter to the CSB purporting tooutline its duties with respect to the exam-ination results. Ude stated that underfederal law, ‘‘a statistical demonstration ofdisparate impact,’’ standing alone, ‘‘consti-tutes a sufficiently serious claim of racialdiscrimination to serve as a predicate for


employer-initiated, voluntar[y] remedies—even TTT race-conscious remedies.’’ App.to Pet. for Cert. in No. 07–1428, p. 443a;see also 554 F.Supp.2d, at 145 (issue ofdisparate impact ‘‘appears to have beenraised by TTT Ude’’).

1

The CSB first met to consider certifyingthe results on January 22, 2004. TinaBurgett, director of the City’s Departmentof Human Resources, opened the meetingby telling the CSB that ‘‘there is a signifi-cant disparate impact on these two ex-ams.’’ App. to Pet. for Cert. in No. 07–1428, at 466a. She distributed lists show-ing the candidates’ races and scores (writ-ten, oral, and composite) but not theirnames. Ude also described the test re-sults as reflecting ‘‘a very significant dispa-rate impact,’’ id., at 477a, and he outlinedpossible grounds for the CSB’s refusing tocertify the results.

Although they did not know whetherthey had passed or failed, some firefighter-candidates spoke at the first CSB meetingin favor of certifying the test results. Mi-chael Blatchley stated that ‘‘[e]very one’’ ofthe questions on the written examination‘‘came from the [study] material. TTT [I]fyou read the materials and you studied thematerial, you would have done well on thetest.’’ App. in No. 06–4996–cv (CA2), pp.A772–A773 (hereinafter CA2 App.).Frank Ricci stated that the test questionswere based on the Department’s own rulesand procedures and on ‘‘nationally recog-nized’’ materials that represented the ‘‘ac-cepted standard[s]’’ for firefighting. Id.,at A785–A786. Ricci stated that he had‘‘several learning disabilities,’’ includingdyslexia; that he had spent more than$1,000 to purchase the materials and payhis neighbor to read them on tape so hecould ‘‘give it [his] best shot’’; and that hehad studied ‘‘8 to 13 hours a day to pre-

pare’’ for the test. Id., at A786, A789. ‘‘Idon’t even know if I made it,’’ Ricci toldthe CSB, ‘‘[b]ut the people who passedshould be promoted. When your life’s onthe line, second best may not be goodenough.’’ Id., at A787–A788.

Other firefighters spoke against certify-ing the test results. They described thetest questions as outdated or not relevantto firefighting practices in New Haven.Gary Tinney stated that source materials‘‘came out of New YorkTTTT Their make-up of their city and everything is totallydifferent than ours.’’ Id., at A774–A775;see also id., at A779, A780–A781. Andthey criticized the test materials, a full setof which cost about $500, for being tooexpensive and too long.

2

At a second CSB meeting, on February5, the president of the New Haven fire-fighters’ union asked the CSB to performa validation study to determine whetherthe tests were job-related. Petitioners’counsel in this action argued that the CSBshould certify the results. A representa-tive of the International Association ofBlack Professional Firefighters, DonaldDay from neighboring Bridgeport, Con-necticut, ‘‘beseech[ed]’’ the CSB ‘‘to throwaway that test,’’ which he described as‘‘inherently unfair’’ because of the racialdistribution of the results. Id., at A830–A831. Another Bridgeport-based repre-sentative of the association, Ronald Mack-ey, stated that a validation study was nec-essary. He suggested that the City could‘‘adjust’’ the test results to ‘‘meet the crite-ria of having a certain amount of minori-ties get elevated to the rank of Lieutenantand Captain.’’ Id., at A838. At the end ofthis meeting, the CSB members agreed toask IOS to send a representative to ex-plain how it had developed and adminis-tered the examinations. They also dis-


cussed asking a panel of experts to reviewthe examinations and advise the CSBwhether to certify the results.

3

At a third meeting, on February 11,Legel addressed the CSB on behalf ofIOS. Legel stated that IOS had previouslyprepared entry-level firefighter examina-tions for the City but not a promotionalexamination. He explained that IOS haddeveloped examinations for departments incommunities with demographics similar toNew Haven’s, including Orange County,Florida; Lansing, Michigan; and SanJose, California.

Legel explained the exam-developmentprocess to the CSB. He began by describ-ing the job analyses IOS performed of thecaptain and lieutenant positions—the in-terviews, ride-alongs, and questionnairesIOS designed to ‘‘generate a list of tasks,knowledge, skills and abilities that are con-sidered essential to performance’’ of thejobs. Id., at A931–A932. He outlined howIOS prepared the written and oral exami-nations, based on the job-analysis results,to test most heavily those qualities that theresults indicated were ‘‘critica[l]’’ or ‘‘es-sentia[l].’’ Id., at A931. And he noted thatIOS took the material for each test ques-tion directly from the approved source ma-terials. Legel told the CSB that third-party reviewers had scrutinized the exami-nations to ensure that the written test wasdrawn from the source material and thatthe oral test accurately tested real-worldsituations that captains and lieutenantswould face. Legel confirmed that IOS hadselected oral-examination panelists so thateach three-member assessment panel in-cluded one white, one black, and one His-panic member.

Near the end of his remarks, Legel‘‘implor[ed] anyone that had TTT concernsto review the content of the exam. In my

professional opinion, it’s facially neutral.There’s nothing in those examinations TTT

that should cause somebody to think thatone group would perform differently thananother group.’’ Id., at A961.

4

At the next meeting, on March 11, theCSB heard from three witnesses it hadselected to ‘‘tell us a little bit about theirviews of the testing, the process, [and] themethodology.’’ Id., at A1020. The first,Christopher Hornick, spoke to the CSB bytelephone. Hornick is an industrial/organ-izational psychologist from Texas who op-erates a consulting business that ‘‘di-rect[ly]’’ competes with IOS. Id., at A1029.Hornick, who had not ‘‘stud[ied] the test atlength or in detail’’ and had not ‘‘seen thejob analysis data,’’ told the CSB that thescores indicated a ‘‘relatively high adverseimpact.’’ Id., at A1028, A1030, A1043. Hestated that ‘‘[n]ormally, whites outperformethnic minorities on the majority of stan-dardized testing procedures,’’ but that hewas ‘‘a little surprised’’ by the disparity inthe candidates’ scores—although ‘‘[s]omeof it is fairly typical of what we’ve seen inother areas of the countr[y] and othertests.’’ Id., at A1028–A1029. Hornickstated that the ‘‘adverse impact on thewritten exam was somewhat higher butgenerally in the range that we’ve seenprofessionally.’’ Id., at A1030–A1031.

When asked to explain the New Haventest results, Hornick opined in the tele-phone conversation that the collective-bar-gaining agreement’s requirement of usingwritten and oral examinations with a 60/40composite score might account for the sta-tistical disparity. He also stated that ‘‘[b]ynot having anyone from within the [D]e-partment review’’ the tests before theywere administered—a limitation the Cityhad imposed to protect the security of theexam questions—‘‘you inevitably get


things in there’’ that are based on thesource materials but are not relevant toNew Haven. Id., at A1034–A1035. Hor-nick suggested that testing candidates atan ‘‘assessment center’’ rather than usingwritten and oral examinations ‘‘mightserve [the City’s] needs better.’’ Id., atA1039–A1040. Hornick stated that assess-ment centers, where candidates face real-world situations and respond just as theywould in the field, allow candidates ‘‘todemonstrate how they would address aparticular problem as opposed to just ver-bally saying it or identifying the correctoption on a written test.’’ Ibid.

Hornick made clear that he was ‘‘notsuggesting that [IOS] somehow created atest that had adverse impacts that itshould not have had.’’ Id., at A1038. Hedescribed the IOS examinations as ‘‘rea-sonably good test[s].’’ Id., at A1041. Hestated that the CSB’s best option might beto ‘‘certify the list as it exists’’ and work tochange the process for future tests, includ-ing by ‘‘[r]ewriting the Civil ServiceRules.’’ Ibid. Hornick concluded his tele-phonic remarks by telling the CSB that‘‘for the future,’’ his company ‘‘certainlywould like to help you if we can.’’ Id., atA1046.

The second witness was Vincent Lewis,a fire program specialist for the Depart-ment of Homeland Security and a retiredfire captain from Michigan. Lewis, who isblack, had looked ‘‘extensively’’ at the lieu-tenant exam and ‘‘a little less extensively’’at the captain exam. He stated that thecandidates ‘‘should know that material.’’Id., at A1048, A1052. In Lewis’s view, the‘‘questions were relevant for both exams,’’and the New Haven candidates had anadvantage because the study materialsidentified the particular book chaptersfrom which the questions were taken. Inother departments, by contrast, ‘‘you hadto know basically the TTT entire book.’’

Id., at A1053. Lewis concluded that anydisparate impact likely was due to a pat-tern that ‘‘usually whites outperform someof the minorities on testing,’’ or that ‘‘morewhites TTT take the exam.’’ Id., at A1054.

The final witness was Janet Helms, aprofessor at Boston College whose ‘‘pri-mary area of expertise’’ is ‘‘not with fire-fighters per se’’ but in ‘‘race and culture asthey influence performance on tests andother assessment procedures.’’ Id., atA1060. Helms expressly declined theCSB’s offer to review the examinations.At the outset, she noted that ‘‘regardlessof what kind of written test we give in thiscountry TTT we can just about predict howmany people will pass who are members ofunder-represented groups. And your dataare not that inconsistent with what predic-tions would say were the case.’’ Id., atA1061. Helms nevertheless offered sever-al ‘‘ideas about what might be possiblefactors’’ to explain statistical differences inthe results. Id., at A1062. She concludedthat because 67 percent of the respondentsto the job-analysis questionnaires werewhite, the test questions might have fa-vored white candidates, because ‘‘most ofthe literature on firefighters shows thatthe different groups perform the job dif-ferently.’’ Id., at A1063. Helms closed bystating that no matter what test the Cityhad administered, it would have revealed‘‘a disparity between blacks and whites,Hispanics and whites,’’ particularly on awritten test. Id., at A1072.

5

At the final CSB meeting, on March 18,Ude (the City’s counsel) argued againstcertifying the examination results. Dis-cussing the City’s obligations under feder-al law, Ude advised the CSB that a findingof adverse impact ‘‘is the beginning, notthe end, of a review of testing procedures’’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 forTTT those positions that are equally validwith less adverse impact.’’ Id., at A1101.Ude described Hornick as having said thatthe written examination ‘‘had one of themost severe adverse impacts that he hadseen’’ and that ‘‘there are much betteralternatives to identifying [firefighting]skills.’’ Ibid. Ude offered his ‘‘opinion thatpromotions TTT as a result of these testswould not be consistent with federal law,would not be consistent with the purposesof our Civil Service Rules or our Charter[,]nor is it in the best interests of the fire-fighters TTT who took the exams.’’ Id., atA1103–A1104. He stated that previousDepartment exams ‘‘have not had this kindof result,’’ and that previous results hadnot been ‘‘challenged as having adverseimpact, whereas we are assured that thesewill be.’’ Id., at A1107, A1108.

CSB Chairman Segaloff asked Ude sev-eral questions about the Title VII dispa-rate-impact standard.

‘‘CHAIRPERSON SEGALOFF:[M]y understanding is the group TTT

that is making to throw the exam outhas the burden of showing that there isout there an exam that is reasonablyprobable or likely to have less of anadverse impact. It’s not our burden toshow that there’s an exam out there thatcan be better. We’ve got an exam.We’ve got a result TTT.

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

‘‘CHAIRPERSON SEGALOFF: Youthink that’s enough for us to throw thistest upside-down TTT because Dr. Hor-nick said it?

‘‘MR. UDE: I think that by itselfwould be sufficient. Yes. I also wouldpoint out that TTT it is the employer’sburden to justify the use of the examina-tion.’’ Id., at A1108–A1109.

Karen DuBois–Walton, the City’s chiefadministrative officer, spoke on behalf ofMayor John DeStefano and argued againstcertifying the results. DuBois–Waltonstated that the results, when consideredunder the rule of three and applied tothen-existing captain and lieutenant vacan-cies, created a situation in which black andHispanic candidates were disproportion-ately excluded from opportunity. DuBois–Walton also relied on Hornick’s testimony,asserting that Hornick ‘‘made it extremelyclear that TTT there are more appropriateways to assess one’s ability to serve’’ as acaptain or lieutenant. Id., at A1120.

Burgett (the human resources director)asked the CSB to discard the examinationresults. She, too, relied on Hornick’sstatement to show the existence of alterna-tive testing methods, describing Hornickas having ‘‘started to point out that alter-native testing does exist’’ and as having‘‘begun to suggest that there are somedifferent ways of doing written examina-tions.’’ Id., at A1125, A1128.

Other witnesses addressed the CSB.They included the president of the NewHaven firefighters’ union, who supportedcertification. He reminded the CSB thatHornick ‘‘also concluded that the testswere reasonable and fair and under thecurrent structure to certify them.’’ Id., atA1137. Firefighter Frank Ricci again ar-gued for certification; he stated that al-though ‘‘assessment centers in some casesshow less adverse impact,’’ id., at A1140,they were not available alternatives for thecurrent round of promotions. It wouldtake several years, Ricci explained, for theDepartment to develop an assessment-cen-ter protocol and the accompanying training


materials. Id., at A1141. LieutenantMatthew Marcarelli, who had taken thecaptain’s exam, spoke in favor of certifica-tion.

At the close of witness testimony, theCSB voted on a motion to certify the ex-aminations. With one member recused,the CSB deadlocked 2 to 2, resulting in adecision not to certify the results. Ex-plaining his vote to certify the results,Chairman Segaloff stated that ‘‘nobodyconvinced me that we can feel comfortablethat, in fact, there’s some likelihood thatthere’s going to be an exam designedthat’s going to be less discriminatory.’’Id., at A1159–A1160.

C

The CSB’s decision not to certify theexamination results led to this lawsuit.The plaintiffs—who are the petitionershere—are 17 white firefighters and 1 His-panic firefighter who passed the examina-tions but were denied a chance at pro-motions when the CSB refused to certifythe test results. They include the namedplaintiff, Frank Ricci, who addressed theCSB at multiple meetings.

Petitioners sued the City, Mayor DeSte-fano, DuBois–Walton, Ude, Burgett, andthe two CSB members who voted againstcertification. Petitioners also named as adefendant Boise Kimber, a New Havenresident who voiced strong opposition tocertifying the results. Those individualsare respondents in this Court. Petitionersfiled suit under Rev. Stat. §§ 1979 and1980, 42 U.S.C. §§ 1983 and 1985, allegingthat respondents, by arguing or votingagainst certifying the results, violated andconspired to violate the Equal ProtectionClause of the Fourteenth Amendment.Petitioners also filed timely charges of dis-crimination with the Equal EmploymentOpportunity Commission (EEOC); uponthe EEOC’s issuing right-to-sue letters,

petitioners amended their complaint to as-sert that the City violated the disparate-treatment prohibition contained in TitleVII of the Civil Rights Act of 1964, asamended. See 42 U.S.C. §§ 2000e–2(a).

The parties filed cross-motions for sum-mary judgment. Respondents assertedthey had a good-faith belief that theywould have violated the disparate-impactprohibition in Title VII, § 2000e–2(k), hadthey certified the examination results. Itfollows, they maintained, that they cannotbe held liable under Title VII’s disparate-treatment provision for attempting to com-ply with Title VII’s disparate-impact bar.Petitioners countered that respondents’good-faith belief was not a valid defense toallegations of disparate treatment and un-constitutional discrimination.

The District Court granted summaryjudgment for respondents. 554 F.Supp.2d142. It described petitioners’ argument as‘‘boil[ing] down to the assertion that if[respondents] cannot prove that the dis-parities on the Lieutenant and Captainexams were due to a particular flaw inher-ent in those exams, then they should havecertified the results because there was noother alternative in place.’’ Id., at 156.The District Court concluded that, ‘‘[n]ot-withstanding the shortcomings in the evi-dence on existing, effective alternatives, itis not the case that [respondents] mustcertify a test where they cannot pinpointits deficiency explaining its disparate im-pact TTT simply because they have not yetformulated a better selection method.’’Ibid. It also ruled that respondents’ ‘‘moti-vation to avoid making promotions basedon a test with a racially disparate impactTTT does not, as a matter of law, constitutediscriminatory intent’’ under Title VII. Id.,at 160. The District Court rejected peti-tioners’ equal protection claim on the theo-ry that respondents had not acted becauseof ‘‘discriminatory animus’’ toward peti-


tioners. Id., at 162. It concluded thatrespondents’ actions were not ‘‘based onrace’’ because ‘‘all applicants took the sametest, and the result was the same for allbecause the test results were discardedand nobody was promoted.’’ Id., at 161.

After full briefing and argument by theparties, the Court of Appeals affirmed in aone-paragraph, unpublished summary or-der; it later withdrew that order, issuingin its place a nearly identical, one-para-graph per curiam opinion adopting theDistrict Court’s reasoning. 530 F.3d 87(C.A.2 2008). Three days later, the Courtof Appeals voted 7 to 6 to deny rehearingen banc, over written dissents by ChiefJudge Jacobs and Judge Cabranes. 530F.3d 88.

This action presents two provisions ofTitle VII to be interpreted and reconciled,with few, if any, precedents in the courtsof appeals discussing the issue. Depend-ing on the resolution of the statutoryclaim, a fundamental constitutional ques-tion could also arise. We found it prudentand appropriate to grant certiorari. 555U.S. ––––, 129 S.Ct. 894, 172 L.Ed.2d 768(2009). We now reverse.

II

[1] Petitioners raise a statutory claim,under the disparate-treatment prohibitionof Title VII, and a constitutional claim,under the Equal Protection Clause of theFourteenth Amendment. A decision forpetitioners on their statutory claim wouldprovide the relief sought, so we consider itfirst. See Atkins v. Parker, 472 U.S. 115,123, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985);Escambia County v. McMillan, 466 U.S.48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984)(per curiam) (‘‘[N]ormally the Court willnot decide a constitutional question if thereis some other ground upon which to dis-pose of the case’’).

A

[2] Title VII of the Civil Rights Act of1964, 42 U.S.C. § 2000e et seq., as amend-ed, prohibits employment discriminationon the basis of race, color, religion, sex, ornational origin. Title VII prohibits bothintentional discrimination (known as ‘‘dis-parate treatment’’) as well as, in somecases, practices that are not intended todiscriminate but in fact have a dispropor-tionately adverse effect on minorities(known as ‘‘disparate impact’’).

[3, 4] As enacted in 1964, Title VII’sprincipal nondiscrimination provision heldemployers liable only for disparate treat-ment. That section retains its originalwording today. It makes it unlawful foran employer ‘‘to fail or refuse to hire or todischarge any individual, or otherwise todiscriminate against any individual withrespect to his compensation, terms, condi-tions, or privileges of employment, becauseof such individual’s race, color, religion,sex, or national origin.’’ § 2000e–2(a)(1);see also 78 Stat. 255. Disparate-treatmentcases present ‘‘the most easily understoodtype of discrimination,’’ Teamsters v. Unit-ed States, 431 U.S. 324, 335, n. 15, 97 S.Ct.1843, 52 L.Ed.2d 396 (1977), and occurwhere an employer has ‘‘treated [a] partic-ular person less favorably than others be-cause of’’ a protected trait. Watson v.Fort Worth Bank & Trust, 487 U.S. 977,985–986, 108 S.Ct. 2777, 101 L.Ed.2d 827(1988). A disparate-treatment plaintiffmust establish ‘‘that the defendant had adiscriminatory intent or motive’’ for takinga job-related action. Id., at 986, 108 S.Ct.2777.

The Civil Rights Act of 1964 did notinclude an express prohibition on policiesor practices that produce a disparate im-pact. But in Griggs v. Duke Power Co.,401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158(1971), the Court interpreted the Act toprohibit, in some cases, employers’ facially


neutral practices that, in fact, are ‘‘discrim-inatory in operation.’’ Id., at 431, 91 S.Ct.849. The Griggs Court stated that the‘‘touchstone’’ for disparate-impact liabilityis the lack of ‘‘business necessity’’: ‘‘If anemployment practice which operates to ex-clude [minorities] cannot be shown to berelated to job performance, the practice isprohibited.’’ Ibid.; see also id., at 432, 91S.Ct. 849 (employer’s burden to demon-strate that practice has ‘‘a manifest rela-tionship to the employment in question’’);Albemarle Paper Co. v. Moody, 422 U.S.405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280(1975). Under those precedents, if an em-ployer met its burden by showing that itspractice was job-related, the plaintiff wasrequired to show a legitimate alternativethat would have resulted in less discrimi-nation. Ibid. (allowing complaining partyto show ‘‘that other tests or selection de-vices, without a similarly undesirable racialeffect, would also serve the employer’s le-gitimate interest’’).

Twenty years after Griggs, the CivilRights Act of 1991, 105 Stat. 1071, wasenacted. The Act included a provision co-difying the prohibition on disparate-impactdiscrimination. That provision is now inforce along with the disparate-treatmentsection already noted. Under the dispa-rate-impact statute, a plaintiff establishesa prima facie violation by showing that anemployer uses ‘‘a particular employmentpractice that causes a disparate impact onthe basis of race, color, religion, sex, ornational origin.’’ 42 U.S.C. § 2000e–2(k)(1)(A)(i). An employer may defendagainst liability by demonstrating that thepractice is ‘‘job related for the position inquestion and consistent with business ne-cessity.’’ Ibid. Even if the employer meetsthat burden, however, a plaintiff may stillsucceed by showing that the employer re-fuses to adopt an available alternative em-ployment practice that has less disparateimpact and serves the employer’s legiti-

mate needs. §§ 2000e–2(k)(1)(A)(ii) and(C).

B

Petitioners allege that when the CSBrefused to certify the captain and lieuten-ant exam results based on the race of thesuccessful candidates, it discriminatedagainst them in violation of Title VII’sdisparate-treatment provision. The Citycounters that its decision was permissiblebecause the tests ‘‘appear[ed] to violateTitle VII’s disparate-impact provisions.’’Brief for Respondents 12.

[5] Our analysis begins with this prem-ise: The City’s actions would violate thedisparate-treatment prohibition of TitleVII absent some valid defense. All theevidence demonstrates that the City chosenot to certify the examination results be-cause of the statistical disparity based onrace—i.e., how minority candidates hadperformed when compared to white candi-dates. As the District Court put it, theCity rejected the test results because ‘‘toomany whites and not enough minoritieswould be promoted were the lists to becertified.’’ 554 F.Supp.2d, at 152; see alsoibid. (respondents’ ‘‘own arguments TTT

show that the City’s reasons for advocatingnon-certification were related to the racialdistribution of the results’’). Withoutsome other justification, this express, race-based decisionmaking violates Title VII’scommand that employers cannot take ad-verse employment actions because of anindividual’s race. See § 2000e–2(a)(1).

The District Court did not adhere to thisprinciple, however. It held that respon-dents’ ‘‘motivation to avoid making pro-motions based on a test with a raciallydisparate impact TTT does not, as a matterof law, constitute discriminatory intent.’’554 F.Supp.2d, at 160. And the Govern-ment makes a similar argument in this


Court. It contends that the ‘‘structure ofTitle VII belies any claim that an employ-er’s intent to comply with Title VII’s dis-parate-impact provisions constitutes pro-hibited discrimination on the basis ofrace.’’ Brief for United States as AmicusCuriae 11. But both of those statementsturn upon the City’s objective—avoidingdisparate-impact liability—while ignoringthe City’s conduct in the name of reachingthat objective. Whatever the City’s ulti-mate aim—however well intentioned or be-nevolent it might have seemed—the Citymade its employment decision because ofrace. The City rejected the test resultssolely because the higher scoring candi-dates were white. The question is notwhether that conduct was discriminatorybut whether the City had a lawful justifica-tion for its race-based action.

[6] We consider, therefore, whetherthe purpose to avoid disparate-impact lia-bility excuses what otherwise would beprohibited disparate-treatment discrimina-tion. Courts often confront cases in whichstatutes and principles point in differentdirections. Our task is to provide guid-ance to employers and courts for situationswhen these two prohibitions could be inconflict absent a rule to reconcile them.In providing this guidance our decisionmust be consistent with the important pur-pose of Title VII—that the workplace bean environment free of discrimination,where race is not a barrier to opportunity.

[7, 8] With these principles in mind, weturn to the parties’ proposed means ofreconciling the statutory provisions. Peti-tioners take a strict approach, arguing thatunder Title VII, it cannot be permissiblefor an employer to take race-based ad-verse employment actions in order to avoiddisparate-impact liability—even if the em-ployer knows its practice violates the dis-parate-impact provision. See Brief for Pe-titioners 43. Petitioners would have us

hold that, under Title VII, avoiding unin-tentional discrimination cannot justify in-tentional discrimination. That assertion,however, ignores the fact that, by codify-ing the disparate-impact provision in 1991,Congress has expressly prohibited bothtypes of discrimination. We must inter-pret the statute to give effect to bothprovisions where possible. See, e.g., Unit-ed States v. Atlantic Research Corp., 551U.S. 128, 137, 127 S.Ct. 2331, 168 L.Ed.2d28 (2007) (rejecting an interpretation thatwould render a statutory provision ‘‘a deadletter’’). We cannot accept petitioners’broad and inflexible formulation.

[9, 10] Petitioners next suggest that anemployer in fact must be in violation of thedisparate-impact provision before it canuse compliance as a defense in a disparate-treatment suit. Again, this is overly sim-plistic and too restrictive of Title VII’spurpose. The rule petitioners offer wouldrun counter to what we have recognized asCongress’s intent that ‘‘voluntary compli-ance’’ be ‘‘the preferred means of achiev-ing the objectives of Title VII.’’ Firefight-ers v. Cleveland, 478 U.S. 501, 515, 106S.Ct. 3063, 92 L.Ed.2d 405 (1986); see alsoWygant v. Jackson Bd. of Ed., 476 U.S.267, 290, 106 S.Ct. 1842, 90 L.Ed.2d 260(1986) (O’Connor, J., concurring in partand concurring in judgment). Forbiddingemployers to act unless they know, withcertainty, that a practice violates the dis-parate-impact provision would bring com-pliance efforts to a near standstill. Evenin the limited situations when this restrict-ed standard could be met, employers likelywould hesitate before taking voluntary ac-tion for fear of later being proven wrong inthe course of litigation and then held toaccount for disparate treatment.

[11, 12] At the opposite end of thespectrum, respondents and the Govern-ment assert that an employer’s good-faith


belief that its actions are necessary tocomply with Title VII’s disparate-impactprovision should be enough to justify race-conscious conduct. But the original, foun-dational prohibition of Title VII bars em-ployers from taking adverse action ‘‘be-cause of TTT race.’’ § 2000e–2(a)(1). Andwhen Congress codified the disparate-im-pact provision in 1991, it made no excep-tion to disparate-treatment liability for ac-tions taken in a good-faith effort to complywith the new, disparate-impact provision insubsection (k). Allowing employers to vio-late the disparate-treatment prohibitionbased on a mere good-faith fear of dispa-rate-impact liability would encourage race-based action at the slightest hint of dispa-rate impact. A minimal standard couldcause employers to discard the results oflawful and beneficial promotional examina-tions even where there is little if any evi-dence of disparate-impact discrimination.That would amount to a de facto quotasystem, in which a ‘‘focus on statistics TTT

could put undue pressure on employers toadopt inappropriate prophylactic meas-ures.’’ Watson, 487 U.S., at 992, 108 S.Ct.2777 (plurality opinion). Even worse, anemployer could discard test results (or oth-er employment practices) with the intentof obtaining the employer’s preferred ra-cial balance. That operational principlecould not be justified, for Title VII isexpress in disclaiming any interpretationof its requirements as calling for outrightracial balancing. § 2000e–2(j). The pur-pose of Title VII ‘‘is to promote hiring onthe basis of job qualifications, rather thanon the basis of race or color.’’ Griggs, 401U.S., at 434, 91 S.Ct. 849.

In searching for a standard that strikesa more appropriate balance, we note thatthis Court has considered cases similar tothis one, albeit in the context of the EqualProtection Clause of the FourteenthAmendment. The Court has held that cer-tain government actions to remedy past

racial discrimination—actions that arethemselves based on race—are constitu-tional only where there is a ‘‘ ‘strong basisin evidence’ ’’ that the remedial actionswere necessary. Richmond v. J.A. CrosonCo., 488 U.S. 469, 500, 109 S.Ct. 706, 102L.Ed.2d 854 (1989) (quoting Wygant, su-pra, at 277, 106 S.Ct. 1842 (plurality opin-ion)). This suit does not call on us toconsider whether the statutory constraintsunder Title VII must be parallel in allrespects to those under the Constitution.That does not mean the constitutional au-thorities are irrelevant, however. Ourcases discussing constitutional principlescan provide helpful guidance in this statu-tory context. See Watson, supra, at 993,108 S.Ct. 2777 (plurality opinion).

Writing for a plurality in Wygant andannouncing the strong-basis-in-evidencestandard, Justice Powell recognized thetension between eliminating segregationand discrimination on the one hand anddoing away with all governmentally im-posed discrimination based on race on theother. 476 U.S., at 277, 106 S.Ct. 1842.The plurality stated that those ‘‘relatedconstitutional duties are not always harmo-nious,’’ and that ‘‘reconciling them requiresTTT employers to act with extraordinarycare.’’ Ibid. The plurality required astrong basis in evidence because ‘‘[e]viden-tiary support for the conclusion that reme-dial action is warranted becomes crucialwhen the remedial program is challengedin court by nonminority employees.’’ Ibid.The Court applied the same standard inCroson, observing that ‘‘an amorphousclaim that there has been past discrimina-tion TTT cannot justify the use of an un-yielding racial quota.’’ 488 U.S., at 499,109 S.Ct. 706.

[13] The same interests are at work inthe interplay between the disparate-treat-ment and disparate-impact provisions of


Title VII. Congress has imposed liabilityon employers for unintentional discrimina-tion in order to rid the workplace of ‘‘prac-tices that are fair in form, but discrimina-tory in operation.’’ Griggs, supra, at 431,91 S.Ct. 849. But it has also prohibitedemployers from taking adverse employ-ment actions ‘‘because of’’ race. § 2000e–2(a)(1). Applying the strong-basis-in-evi-dence standard to Title VII gives effect toboth the disparate-treatment and dispa-rate-impact provisions, allowing violationsof one in the name of compliance with theother only in certain, narrow circum-stances. The standard leaves ample roomfor employers’ voluntary compliance ef-forts, which are essential to the statutoryscheme and to Congress’s efforts to eradi-cate workplace discrimination. See Fire-fighters, supra, at 515. And the standardappropriately constrains employers’ discre-tion in making race-based decisions: Itlimits that discretion to cases in whichthere is a strong basis in evidence of dispa-rate-impact liability, but it is not so restric-tive that it allows employers to act onlywhen there is a provable, actual violation.

Resolving the statutory conflict in thisway allows the disparate-impact prohibi-tion to work in a manner that is consistentwith other provisions of Title VII, includ-ing the prohibition on adjusting employ-ment-related test scores on the basis ofrace. See § 2000e–2(l ). Examinationslike those administered by the City createlegitimate expectations on the part ofthose who took the tests. As is the casewith any promotion exam, some of thefirefighters here invested substantial time,money, and personal commitment in pre-paring for the tests. Employment testscan be an important part of a neutralselection system that safeguards againstthe very racial animosities Title VII wasintended to prevent. Here, however, thefirefighters saw their efforts invalidated by

the City in sole reliance upon race-basedstatistics.

If an employer cannot rescore a testbased on the candidates’ race, § 2000e–2(l ), then it follows a fortiori that it maynot take the greater step of discarding thetest altogether to achieve a more desirableracial distribution of promotion-eligiblecandidates—absent a strong basis in evi-dence that the test was deficient and thatdiscarding the results is necessary to avoidviolating the disparate-impact provision.Restricting an employer’s ability to discardtest results (and thereby discriminateagainst qualified candidates on the basis oftheir race) also is in keeping with TitleVII’s express protection of bona fide pro-motional examinations. See § 2000e–2(h)(‘‘[N]or shall it be an unlawful employmentpractice for an employer to give and to actupon the results of any professionally de-veloped ability test provided that such test,its administration or action upon the re-sults is not designed, intended or used todiscriminate because of race’’); cf. AT &T Corp. v. Hulteen, 556 U.S. ––––, ––––,129 S.Ct. 1962, 1970, ––– L.Ed.2d ––––(2009).

For the foregoing reasons, we adopt thestrong-basis-in-evidence standard as amatter of statutory construction to resolveany conflict between the disparate-treat-ment and disparate-impact provisions ofTitle VII.

Our statutory holding does not addressthe constitutionality of the measures takenhere in purported compliance with TitleVII. We also do not hold that meeting thestrong-basis-in-evidence standard wouldsatisfy the Equal Protection Clause in afuture case. As we explain below, becauserespondents have not met their burdenunder Title VII, we need not decide wheth-er a legitimate fear of disparate impact isever sufficient to justify discriminatorytreatment under the Constitution.


[14] Nor do we question an employer’saffirmative efforts to ensure that allgroups have a fair opportunity to apply forpromotions and to participate in the pro-cess by which promotions will be made.But once that process has been establishedand employers have made clear their selec-tion criteria, they may not then invalidatethe test results, thus upsetting an employ-ee’s legitimate expectation not to bejudged on the basis of race. Doing so,absent a strong basis in evidence of animpermissible disparate impact, amountsto the sort of racial preference that Con-gress has disclaimed, § 2000e–2(j), and isantithetical to the notion of a workplacewhere individuals are guaranteed equal op-portunity regardless of race.

[15, 16] Title VII does not prohibit anemployer from considering, before admin-istering a test or practice, how to designthat test or practice in order to provide afair opportunity for all individuals, regard-less of their race. And when, during thetest-design stage, an employer invites com-ments to ensure the test is fair, that pro-cess can provide a common ground foropen discussions toward that end. Wehold only that, under Title VII, before anemployer can engage in intentional dis-crimination for the asserted purpose ofavoiding or remedying an unintentionaldisparate impact, the employer must havea strong basis in evidence to believe it willbe subject to disparate-impact liability if itfails to take the race-conscious, discrimina-tory action.

C

The City argues that, even under thestrong-basis-in-evidence standard, its deci-sion to discard the examination results waspermissible under Title VII. That is incor-rect. Even if respondents were motivatedas a subjective matter by a desire to avoidcommitting disparate-impact discrimina-

tion, the record makes clear there is nosupport for the conclusion that respon-dents had an objective, strong basis inevidence to find the tests inadequate, withsome consequent disparate-impact liabilityin violation of Title VII.

[17, 18] On this basis, we conclude thatpetitioners have met their obligation todemonstrate that there is ‘‘no genuine is-sue as to any material fact’’ and that theyare ‘‘entitled to judgment as a matter oflaw.’’ Fed. Rule Civ. Proc. 56(c). On amotion for summary judgment, ‘‘facts mustbe viewed in the light most favorable tothe nonmoving party only if there is a‘genuine’ dispute as to those facts.’’ Scottv. Harris, 550 U.S. 372, 380, 127 S.Ct.1769, 167 L.Ed.2d 686 (2007). ‘‘Where therecord taken as a whole could not lead arational trier of fact to find for the non-moving party, there is no genuine issue fortrial.’’ Matsushita Elec. Industrial Co. v.Zenith Radio Corp., 475 U.S. 574, 587, 106S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internalquotation marks omitted). In this Court,the City’s only defense is that it acted tocomply with Title VII’s disparate-impactprovision. To succeed on their motion,then, petitioners must demonstrate thatthere can be no genuine dispute that therewas no strong basis in evidence for theCity to conclude it would face disparate-impact liability if it certified the examina-tion results. See Celotex Corp. v. Catrett,477 U.S. 317, 324, 106 S.Ct. 2548, 91L.Ed.2d 265 (1986) (where the nonmovingparty ‘‘will bear the burden of proof attrial on a dispositive issue,’’ the nonmovingparty bears the burden of production un-der Rule 56 to ‘‘designate specific factsshowing that there is a genuine issue fortrial’’ (internal quotation marks omitted)).

The racial adverse impact here was sig-nificant, and petitioners do not disputethat the City was faced with a prima faciecase of disparate-impact liability. On the


captain exam, the pass rate for white can-didates was 64 percent but was 37.5 per-cent for both black and Hispanic candi-dates. On the lieutenant exam, the passrate for white candidates was 58.1 percent;for black candidates, 31.6 percent; and forHispanic candidates, 20 percent. The passrates of minorities, which were approxi-mately one-half the pass rates for whitecandidates, fall well below the 80–percentstandard set by the EEOC to implementthe disparate-impact provision of Title VII.See 29 CFR § 1607.4(D) (2008) (selectionrate that is less than 80 percent ‘‘of therate for the group with the highest ratewill generally be regarded by the Federalenforcement agencies as evidence of ad-verse impact’’); Watson, 487 U.S., at 995–996, n. 3, 108 S.Ct. 2777 (plurality opinion)(EEOC’s 80–percent standard is ‘‘a rule ofthumb for the courts’’). Based on how thepassing candidates ranked and an applica-tion of the ‘‘rule of three,’’ certifying theexaminations would have meant that theCity could not have considered black can-didates for any of the then-vacant lieuten-ant or captain positions.

[19] Based on the degree of adverseimpact reflected in the results, respon-dents were compelled to take a hard lookat the examinations to determine whethercertifying the results would have had animpermissible disparate impact. Theproblem for respondents is that a primafacie case of disparate-impact liability—essentially, a threshold showing of a signif-icant statistical disparity, Connecticut v.Teal, 457 U.S. 440, 446, 102 S.Ct. 2525, 73L.Ed.2d 130 (1982), and nothing more—isfar from a strong basis in evidence thatthe City would have been liable under TitleVII had it certified the results. That isbecause the City could be liable for dispa-rate-impact discrimination only if the ex-aminations were not job related and con-sistent with business necessity, or if there

existed an equally valid, less-discriminato-ry alternative that served the City’s needsbut that the City refused to adopt.§ 2000e–2(k)(1)(A), (C). We concludethere is no strong basis in evidence toestablish that the test was deficient ineither of these respects. We address eachof the two points in turn, based on therecord developed by the parties throughdiscovery—a record that concentrates insubstantial part on the statements variouswitnesses made to the CSB.

1

[20] There is no genuine dispute thatthe examinations were job-related and con-sistent with business necessity. The City’sassertions to the contrary are ‘‘blatantlycontradicted by the record.’’ Scott, supra,at 380, 127 S.Ct. 1769. The CSB heardstatements from Chad Legel (the IOS vicepresident) as well as city officials outliningthe detailed steps IOS took to develop andadminister the examinations. IOS devisedthe written examinations, which were thefocus of the CSB’s inquiry, after painstak-ing analyses of the captain and lieutenantpositions—analyses in which IOS madesure that minorities were overrepresented.And IOS drew the questions from sourcematerial approved by the Department. Ofthe outside witnesses who appeared beforethe CSB, only one, Vincent Lewis, hadreviewed the examinations in any detail,and he was the only one with any firefight-ing experience. Lewis stated that the‘‘questions were relevant for both exams.’’CA2 App. A1053. The only other witnesswho had seen any part of the examina-tions, Christopher Hornick (a competitorof IOS’s), criticized the fact that no onewithin the Department had reviewed thetests—a condition imposed by the City toprotect the integrity of the exams in lightof past alleged security breaches. ButHornick stated that the exams ‘‘appea[r] tobe TTT reasonably good’’ and recom-


mended that the CSB certify the results.Id., at A1041.

Arguing that the examinations were notjob-related, respondents note some candi-dates’ complaints that certain examinationquestions were contradictory or did notspecifically apply to firefighting practicesin New Haven. But Legel told the CSBthat IOS had addressed those concerns—that it entertained ‘‘a handful’’ of chal-lenges to the validity of particular exami-nation questions, that it ‘‘reviewed thosechallenges and provided feedback [to theCity] as to what we thought the bestcourse of action was,’’ and that he couldremember at least one question IOS hadthrown out (‘‘offer[ing] credit to everybodyfor that particular question’’). Id., atA955–A957. For his part, Hornick said he‘‘suspect[ed] that some of the criticismsTTT [leveled] by candidates’’ were not val-id. Id., at A1035.

The City, moreover, turned a blind eyeto evidence that supported the exams’ va-lidity. Although the City’s contract withIOS contemplated that IOS would preparea technical report consistent with EEOCguidelines for examination-validity studies,the City made no request for its report.After the January 2004 meeting betweenLegel and some of the city-official respon-dents, in which Legel defended the exami-nations, the City sought no further infor-mation from IOS, save its appearance at aCSB meeting to explain how it developedand administered the examinations. IOSstood ready to provide respondents withdetailed information to establish the validi-ty of the exams, but respondents did notaccept that offer.

2

[21] Respondents also lacked a strongbasis in evidence of an equally valid, less-discriminatory testing alternative that theCity, by certifying the examination results,

would necessarily have refused to adopt.Respondents raise three arguments to thecontrary, but each argument fails. First,respondents refer to testimony before theCSB that a different composite-score cal-culation—weighting the written and oralexamination scores 30/70—would have al-lowed the City to consider two black candi-dates for then-open lieutenant positionsand one black candidate for then-open cap-tain positions. (The City used a 60/40weighting as required by its contract withthe New Haven firefighters’ union.) Butrespondents have produced no evidence toshow that the 60/40 weighting was indeedarbitrary. In fact, because that formulawas the result of a union-negotiated collec-tive-bargaining agreement, we presumethe parties negotiated that weighting for arational reason. Nor does the record con-tain any evidence that the 30/70 weightingwould be an equally valid way to deter-mine whether candidates possess the prop-er mix of job knowledge and situationalskills to earn promotions. Changing theweighting formula, moreover, could wellhave violated Title VII’s prohibition of al-tering test scores on the basis of race.See § 2000e–2(l ). On this record, there isno basis to conclude that a 30/70 weightingwas an equally valid alternative the Citycould have adopted.

Second, respondents argue that the Citycould have adopted a different interpreta-tion of the ‘‘rule of three’’ that would haveproduced less discriminatory results. Therule, in the New Haven city charter, re-quires the City to promote only from‘‘those applicants with the three highestscores’’ on a promotional examination.New Haven, Conn., Code of Ordinances,Tit. I, Art. XXX, § 160 (1992). A statecourt has interpreted the charter to pro-hibit so-called ‘‘banding’’—the City’s previ-ous practice of rounding scores to thenearest whole number and considering all


candidates with the same whole-numberscore as being of one rank. Banding al-lowed the City to consider three ranks ofcandidates (with the possibility of multiplecandidates filling each rank) for purposesof the rule of three. See Kelly v. NewHaven, No. CV000444614, 2004 WL114377, *3 (Conn.Super.Ct., Jan.9, 2004).Respondents claim that employing bandinghere would have made four black and oneHispanic candidates eligible for then-openlieutenant and captain positions.

A state court’s prohibition of banding, asa matter of municipal law under the char-ter, may not eliminate banding as a validalternative under Title VII. See 42 U.S.C.§ 2000e–7. We need not resolve thatpoint, however. Here, banding was not avalid alternative for this reason: Had theCity reviewed the exam results and thenadopted banding to make the minority testscores appear higher, it would have violat-ed Title VII’s prohibition of adjusting testresults on the basis of race. § 2000e–2(l );see also Chicago Firefighters Local 2 v.Chicago, 249 F.3d 649, 656 (C.A.7 2001)(Posner, J.) (‘‘We have no doubt that ifbanding were adopted in order to makelower black scores seem higher, it wouldindeed be TTT forbidden’’). As a matter oflaw, banding was not an alternative avail-able to the City when it was consideringwhether to certify the examination results.

Third, and finally, respondents refer tostatements by Hornick in his telephoneinterview with the CSB regarding alterna-tives to the written examinations. Hor-nick stated his ‘‘belie[f]’’ that an ‘‘assess-ment center process,’’ which would haveevaluated candidates’ behavior in typicaljob tasks, ‘‘would have demonstrated lessadverse impact.’’ CA2 App. A1039. ButHornick’s brief mention of alternative test-ing methods, standing alone, does not raisea genuine issue of material fact that as-sessment centers were available to the

City at the time of the examinations andthat they would have produced less ad-verse impact. Other statements to theCSB indicated that the Department couldnot have used assessment centers for the2003 examinations. Supra, at 2670. Andalthough respondents later argued to theCSB that Hornick had pushed the City toreject the test results, supra, at 2671 –2672, the truth is that the essence of Hor-nick’s remarks supported its certifying thetest results. See Scott, 550 U.S., at 380,127 S.Ct. 1769. Hornick stated that ad-verse impact in standardized testing ‘‘hasbeen in existence since the beginning oftesting,’’ CA2 App. A1037, and that thedisparity in New Haven’s test results was‘‘somewhat higher but generally in therange that we’ve seen professionally.’’ Id.,at A1030–A1031. He told the CSB he was‘‘not suggesting’’ that IOS ‘‘somehow cre-ated a test that had adverse impacts that itshould not have had.’’ Id., at A1038. Andhe suggested that the CSB should ‘‘certifythe list as it exists.’’ Id., at A1041.

Especially when it is noted that thestrong-basis-in-evidence standard applies,respondents cannot create a genuine issueof fact based on a few stray (and contradic-tory) statements in the record. And thereis no doubt respondents fall short of themark by relying entirely on isolated state-ments by Hornick. Hornick had not‘‘stud[ied] the test at length or in detail.’’Id., at A1030. And as he told the CSB, heis a ‘‘direct competitor’’ of IOS’s. Id., atA1029. The remainder of his remarksshowed that Hornick’s primary concern—somewhat to the frustration of CSB mem-bers—was marketing his services for thefuture, not commenting on the results ofthe tests the City had already adminis-tered. See, e.g., id., at A1026, A1027,A1032, A1036, A1040, A1041. Hornick’shinting had its intended effect: The Cityhas since hired him as a consultant. Asfor the other outside witnesses who spoke


to the CSB, Vincent Lewis (the retired firecaptain) thought the CSB should certifythe test results. And Janet Helms (theBoston College professor) declined to re-view the examinations and told the CSBthat, as a society, ‘‘we need to develop anew way of assessing people.’’ Id., atA1073. That task was beyond the reach ofthe CSB, which was concerned with theadequacy of the test results before it.

3

[22] On the record before us, there isno genuine dispute that the City lacked astrong basis in evidence to believe it wouldface disparate-impact liability if it certifiedthe examination results. In other words,there is no evidence—let alone the re-quired strong basis in evidence—that thetests were flawed because they were notjob-related or because other, equally validand less discriminatory tests were avail-able to the City. Fear of litigation alonecannot justify an employer’s reliance onrace to the detriment of individuals whopassed the examinations and qualified forpromotions. The City’s discarding the testresults was impermissible under Title VII,and summary judgment is appropriate forpetitioners on their disparate-treatmentclaim.

* * *

The record in this litigation documents aprocess that, at the outset, had the poten-tial to produce a testing procedure thatwas true to the promise of Title VII: Noindividual should face workplace discrimi-nation based on race. Respondentsthought about promotion qualifications andrelevant experience in neutral ways. Theywere careful to ensure broad racial partic-ipation in the design of the test itself andits administration. As we have discussedat length, the process was open and fair.

The problem, of course, is that after thetests were completed, the raw racial re-sults became the predominant rationale forthe City’s refusal to certify the results.The injury arises in part from the high,and justified, expectations of the candi-dates who had participated in the testingprocess on the terms the City had estab-lished for the promotional process. Manyof the candidates had studied for months,at considerable personal and financial ex-pense, and thus the injury caused by theCity’s reliance on raw racial statistics atthe end of the process was all the moresevere. Confronted with arguments bothfor and against certifying the test re-sults—and threats of a lawsuit eitherway—the City was required to make adifficult inquiry. But its hearings pro-duced no strong evidence of a disparate-impact violation, and the City was notentitled to disregard the tests based solelyon the racial disparity in the results.

Our holding today clarifies how Title VIIapplies to resolve competing expectationsunder the disparate-treatment and dispa-rate-impact provisions. If, after it certifiesthe test results, the City faces a disparate-impact suit, then in light of our holdingtoday it should be clear that the Citywould avoid disparate-impact liabilitybased on the strong basis in evidence that,had it not certified the results, it wouldhave been subject to disparate-treatmentliability.

Petitioners are entitled to summaryjudgment on their Title VII claim, and wetherefore need not decide the underlyingconstitutional question. The judgment ofthe Court of Appeals is reversed, and thecases are remanded for further proceed-ings consistent with this opinion.

It is so ordered.

Justice SCALIA, concurring.

I join the Court’s opinion in full, butwrite separately to observe that its resolu-


tion of this dispute merely postpones theevil day on which the Court will have toconfront the question: Whether, or towhat extent, are the disparate-impact pro-visions of Title VII of the Civil Rights Actof 1964 consistent with the Constitution’sguarantee of equal protection? The ques-tion is not an easy one. See generallyPrimus, Equal Protection and DisparateImpact: Round Three, 117 Harv. L.Rev.493 (2003).

The difficulty is this: Whether or notTitle VII’s disparate-treatment provisionsforbid ‘‘remedial’’ race-based actions whena disparate-impact violation would not oth-erwise result—the question resolved bythe Court today—it is clear that Title VIInot only permits but affirmatively requiressuch actions when a disparate-impact vio-lation would otherwise result. See ante,at 2674. But if the Federal Government isprohibited from discriminating on the basisof race, Bolling v. Sharpe, 347 U.S. 497,500, 74 S.Ct. 693, 98 L.Ed. 884 (1954), thensurely it is also prohibited from enactinglaws mandating that third parties—e.g.,employers, whether private, State, or mu-nicipal—discriminate on the basis of race.See Buchanan v. Warley, 245 U.S. 60, 78–82, 38 S.Ct. 16, 62 L.Ed. 149 (1917). Asthe facts of these cases illustrate, TitleVII’s disparate-impact provisions place aracial thumb on the scales, often requiringemployers to evaluate the racial outcomesof their policies, and to make decisionsbased on (because of) those racial out-comes. That type of racial decisionmakingis, as the Court explains, discriminatory.See ante, at 2673; Personnel Administra-tor of Mass. v. Feeney, 442 U.S. 256, 279,99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).

To be sure, the disparate-impact laws donot mandate imposition of quotas, but it isnot clear why that should provide a safeharbor. Would a private employer not be

guilty of unlawful discrimination if he re-frained from establishing a racial hiringquota but intentionally designed his hiringpractices to achieve the same end? Surelyhe would. Intentional discrimination isstill occurring, just one step up the chain.Government compulsion of such designwould therefore seemingly violate equalprotection principles. Nor would it matterthat Title VII requires consideration ofrace on a wholesale, rather than retail,level. ‘‘[T]he Government must treat citi-zens as individuals, not as simply compo-nents of a racial, religious, sexual or na-tional class.’’ Miller v. Johnson, 515 U.S.900, 911, 115 S.Ct. 2475, 132 L.Ed.2d 762(1995) (internal quotation marks omitted).And of course the purportedly benign mo-tive for the disparate-impact provisionscannot save the statute. See AdarandConstructors, Inc. v. Pena, 515 U.S. 200,227, 115 S.Ct. 2097, 132 L.Ed.2d 158(1995).

It might be possible to defend the lawby framing it as simply an evidentiary toolused to identify genuine, intentional dis-crimination—to ‘‘smoke out,’’ as it were,disparate treatment. See Primus, supra,at 498–499, 520–521. Disparate impact issometimes (though not always, see Watsonv. Fort Worth Bank & Trust, 487 U.S. 977,992, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)(plurality opinion)) a signal of somethingillicit, so a regulator might allow statisticaldisparities to play some role in the eviden-tiary process. Cf. McDonnell DouglasCorp. v. Green, 411 U.S. 792, 802–803, 93S.Ct. 1817, 36 L.Ed.2d 668 (1973). Butarguably the disparate-impact provisionssweep too broadly to be fairly character-ized in such a fashion—since they fail toprovide an affirmative defense for good-faith (i.e., nonracially motivated) conduct,or perhaps even for good faith plus hiringstandards that are entirely reasonable.See post, at 2697 – 2698, and n. 1 (GINS-BURG, J., dissenting) (describing the de-


manding nature of the ‘‘business necessity’’defense). This is a question that thisCourt will have to consider in due course.It is one thing to free plaintiffs from prov-ing an employer’s illicit intent, but quiteanother to preclude the employer fromproving that its motives were pure and itsactions reasonable.

The Court’s resolution of these casesmakes it unnecessary to resolve these mat-ters today. But the war between dispa-rate impact and equal protection will bewaged sooner or later, and it behooves usto begin thinking about how—and on whatterms—to make peace between them.

Justice ALITO, with whom JusticeSCALIA and Justice THOMAS join,concurring.

I join the Court’s opinion in full. I writeseparately only because the dissent, whileclaiming that ‘‘[t]he Court’s recitation ofthe facts leaves out important parts of thestory,’’ post, at 2690 (opinion of GINS-BURG, J.), provides an incomplete de-scription of the events that led to NewHaven’s decision to reject the results of itsexam. The dissent’s omissions are impor-tant because, when all of the evidence inthe record is taken into account, it is clearthat, even if the legal analysis in Parts IIand III–A of the dissent were accepted,affirmance of the decision below is untena-ble.

I

When an employer in a disparate-treat-ment case under Title VII of the CivilRights Act of 1964 claims that an employ-ment decision, such as the refusal to pro-mote, was based on a legitimate reason,two questions—one objective and onesubjective—must be decided. The first,objective question is whether the reasongiven by the employer is one that is legit-imate under Title VII. See St. Mary’s

Honor Center v. Hicks, 509 U.S. 502,506–507, 113 S.Ct. 2742, 125 L.Ed.2d 407(1993). If the reason provided by theemployer is not legitimate on its face, theemployer is liable. Id., at 509, 113 S.Ct.2742. The second, subjective questionconcerns the employer’s intent. If anemployer offers a facially legitimate rea-son for its decision but it turns out thatthis explanation was just a pretext fordiscrimination, the employer is again lia-ble. See id., at 510–512, 113 S.Ct. 2742.

The question on which the opinion of theCourt and the dissenting opinion disagreeconcerns the objective component of thedetermination that must be made when anemployer justifies an employment decision,like the one made in this litigation, on theground that a contrary decision wouldhave created a risk of disparate-impactliability. The Court holds—and I entirelyagree—that concern about disparate-im-pact liability is a legitimate reason for adecision of the type involved here only ifthere was a ‘‘substantial basis in evidenceto find the tests inadequate.’’ Ante, at2677. The Court ably demonstrates thatin this litigation no reasonable jury couldfind that the city of New Haven (City)possessed such evidence and thereforesummary judgment for petitioners is re-quired. Because the Court correctly holdsthat respondents cannot satisfy this objec-tive component, the Court has no need todiscuss the question of the respondents’actual intent. As the Court puts it,‘‘[e]ven if respondents were motivated as asubjective matter by a desire to avoid com-mitting disparate-impact discrimination,the record makes clear there is no supportfor the conclusion that respondents had anobjective, substantial basis in evidence tofind the tests inadequate.’’ Ibid.

The dissent advocates a different objec-tive component of the governing standard.According to the dissent, the objective


component should be whether the evidenceprovided ‘‘good cause’’ for the decision,post, at 2699, and the dissent argues—incorrectly, in my view—that no reason-able juror could fail to find that such evi-dence was present here. But even if thedissent were correct on this point, I as-sume that the dissent would not counte-nance summary judgment for respondentsif respondents’ professed concern aboutdisparate-impact litigation was simply apretext. Therefore, the decision below,which sustained the entry of summaryjudgment for respondents, cannot be af-firmed unless no reasonable jury couldfind that the City’s asserted reason forscrapping its test—concern about dispa-rate-impact liability—was a pretext andthat the City’s real reason was illegitimate,namely, the desire to placate a politicallyimportant racial constituency.

II

A

As initially described by the dissent, seepost, at 2690 – 2695, the process by whichthe City reached the decision not to acceptthe test results was open, honest, serious,and deliberative. But even the DistrictCourt admitted that ‘‘a jury could rational-ly infer that city officials worked behindthe scenes to sabotage the promotionalexaminations because they knew that,were the exams certified, the Mayor wouldincur the wrath of [Rev. Boise] Kimberand other influential leaders of New Ha-ven’s African–American community.’’ 554F.Supp.2d 142, 162 (Conn.2006), summarilyaff’d, 530 F.3d 87 (C.A.2 2008) (per cu-riam).

This admission finds ample support inthe record. Reverend Boise Kimber, towhom the District Court referred, is apolitically powerful New Haven pastor anda self-professed ‘‘ ‘kingmaker.’ ’’ App. toPet. for Cert. in No. 07–1428, p. 906a; see

also id., at 909a. On one occasion, ‘‘[i]nfront of TV cameras, he threatened a raceriot during the murder trial of the blackman arrested for killing white Yalie Chris-tian Prince. He continues to call whitesracist if they question his actions.’’ Id., at931a.

Reverend Kimber’s personal ties withseven-term New Haven Mayor John DeS-tefano (Mayor) stretch back more than adecade. In 1996, for example, Mayor DeS-tefano testified for Rev. Kimber as a char-acter witness when Rev. Kimber—then themanager of a funeral home—was prosecut-ed and convicted for stealing prepaid fu-neral expenses from an elderly woman andthen lying about the matter under oath.See id., at 126a, 907a. ‘‘Reverend Kimberhas played a leadership role in all of May-or DeStefano’s political campaigns, [and] isconsidered a valuable political supporterand vote-getter.’’ Id., at 126a. Accordingto the Mayor’s former campaign manager(who is currently his executive assistant),Rev. Kimber is an invaluable political assetbecause ‘‘[h]e’s very good at organizingpeople and putting together field opera-tions, as a result of his ties to labor, hisprominence in the religious community andhis long-standing commitment to roots.’’Id., at 908a (internal quotation marks andalteration omitted).

In 2002, the Mayor picked Rev. Kimberto serve as the Chairman of the NewHaven Board of Fire Commissioners(BFC), ‘‘despite the fact that he had noexperience in the profession, fire adminis-tration, [or] municipal management.’’ Id.,at 127a; see also id., at 928a–929a. Inthat capacity, Rev. Kimber told firefight-ers that certain new recruits would not behired because ‘‘ ‘they just have too manyvowels in their name[s].’ ’’ Thanawala,New Haven Fire Panel Chairman StepsDown Over Racial Slur, Hartford Courant,June 13, 2002, p. B2. After protests about


this comment, Rev. Kimber stepped downas chairman of the BFC, ibid.; see alsoApp. to Pet. for Cert. in No. 07–1428, at929a, but he remained on the BFC andretained ‘‘a direct line to the mayor,’’ id.,at 816a.

Almost immediately after the test re-sults were revealed in ‘‘early January’’2004, Rev. Kimber called the City’s ChiefAdministrative Officer, Karen Dubois–Walton, who ‘‘acts ‘on behalf of the May-or.’ ’’ Id., at 221a, 812a. Dubois–Waltonand Rev. Kimber met privately in her of-fice because he wanted ‘‘to express hisopinion’’ about the test results and ‘‘tohave some influence’’ over the City’s re-sponse. Id., at 815a–816a. As discussedin further detail below, Rev. Kimber ada-mantly opposed certification of the testresults—a fact that he or someone in theMayor’s office eventually conveyed to theMayor. Id., at 229a.

B

On January 12, 2004, Tina Burgett (thedirector of the City’s Department of Hu-man Resources) sent an e-mail to Dubois–Walton to coordinate the City’s responseto the test results. Burgett wanted toclarify that the City’s executive officialswould meet ‘‘sans the Chief, and that oncewe had a better fix on the next steps wewould meet with the Mayor (possibly) andthen the two Chiefs.’’ Id., at 446a. The‘‘two Chiefs’’ are Fire Chief William Grant(who is white) and Assistant Fire ChiefRonald Dumas (who is African–American).Both chiefs believed that the test resultsshould be certified. Id., at 228a, 817a.Petitioners allege, and the record sug-gests, that the Mayor and his staff collud-ed ‘‘sans the Chief[s]’’ because ‘‘the defen-dants did not want Grant’s or Dumas’

views to be publicly known; accordinglyboth men were prevented by the Mayorand his staff from making any statementsregarding the matter.’’ Id., at 228a.1

The next day, on January 13, 2004, ChadLegel, who had designed the tests, flewfrom Chicago to New Haven to meet withDubois–Walton, Burgett, and Thomas Ude,the City’s corporate counsel. Id., at 179a.‘‘Legel outlined the merits of the examina-tion and why city officials should be confi-dent in the validity of the results.’’ Ibid.But according to Legel, Dubois–Waltonwas ‘‘argumentative’’ and apparently hadalready made up her mind that the testswere ‘‘ ‘discriminatory.’ ’’ Id., at 179a–180a. Again according to Legel, ‘‘[a]theme’’ of the meeting was ‘‘the politicaland racial overtones of what was going onin the City.’’ Id., at 181a. ‘‘Legel cameaway from the January 13, 2004 meetingwith the impression that defendants werealready leaning toward discarding the ex-amination results.’’ Id., at 180a.

On January 22, 2004, the Civil ServiceBoard (CSB or Board) convened its firstpublic meeting. Almost immediately, Rev.Kimber began to exert political pressureon the CSB. He began a loud, minutes-long outburst that required the CSBChairman to shout him down and hold himout of order three times. See id., at 187a,467a–468a; see also App. in No. 06–4996–cv (CA2), pp. A703–A705. ReverendKimber protested the public meeting, ar-guing that he and the other fire commis-sioners should first be allowed to meetwith the CSB in private. App. to Pet. forCert. in No. 07–1428, at 188a.

Four days after the CSB’s first meeting,Mayor DeStefano’s executive aide sent ane-mail to Dubois–Walton, Burgett, and

1. Although the dissent disputes it, see post, at2707, n. 17, the record certainly permits theinference that petitioners’ allegation is true.

See App. to Pet. for Cert. in No. 07–1428, pp.846a–851a (deposition of Dubois–Walton).


Ude. Id., at 190a. The message clearlyindicated that the Mayor had made up hismind to oppose certification of the testresults (but nevertheless wanted to concealthat fact from the public):

‘‘I wanted to make sure we are all on thesame page for this meeting tomorrowTTT. [L]et’s remember, that these folksare not against certification yet. So wecan’t go in and tell them that is ourposition; we have to deliberate and ar-rive there as the fairest and most cogentoutcome.’’ Ibid.

On February 5, 2004, the CSB convenedits second public meeting. Reverend Kim-ber again testified and threatened the CSBwith political recriminations if they votedto certify the test results:

‘‘I look at this [Board] tonight. I look atthree whites and one Hispanic and noblacks TTT. I would hope that you wouldnot put yourself in this type of position,a political ramification that may comeback upon you as you sit on this [Board]and decide the future of a departmentand the future of those who are beingpromoted.

.TTTT

‘‘(APPLAUSE).’’ Id., at 492a (emphasisadded).

One of the CSB members ‘‘t[ook] greatoffense’’ because he believed that Rev.Kimber ‘‘consider[ed][him] a bigot because[his] face is white.’’ Id., at 496a. Theoffended CSB member eventually votednot to certify the test results. Id., at586a–587a.

One of Rev. Kimber’s ‘‘friends and al-lies,’’ Lieutenant Gary Tinney, also exacer-bated racial tensions before the CSB. Id.,at 129a. After some firefighters applaud-ed in support of certifying the test results,‘‘Lt. Tinney exclaimed, ‘Listen to theKlansmen behind us.’ ’’ Id., at 225a.

Tinney also has strong ties to the May-or’s office. See, e.g., id., at 129a–130a,816a–817a. After learning that he had notscored well enough on the captain’s examto earn a promotion, Tinney called Dubois–Walton and arranged a meeting in heroffice. Id., at 830a–831a, 836a. Tinneyalleged that the white firefighters hadcheated on their exams—an accusationthat Dubois–Walton conveyed to the Boardwithout first conducting an investigationinto its veracity. Id., at 837a–838a; seealso App. 164 (statement of CSB Chair-man, noting the allegations of cheating).The allegation turned out to be baseless.App. to Pet. for Cert. in No. 07–1428, at836a.

Dubois–Walton never retracted thecheating allegation, but she and other ex-ecutive officials testified several times be-fore the CSB. In accordance with di-rections from the Mayor’s office to makethe CSB meetings appear deliberative, seeid., at 190a, executive officials remainedpublicly uncommitted about certification—while simultaneously ‘‘work[ing] as ateam’’ behind closed doors with the secre-tary of the CSB to devise a political mes-sage that would convince the CSB to voteagainst certification, see id., at 447a. Atthe public CSB meeting on March 11,2004, for example, Corporation CounselUde bristled at one board member’s sug-gestion that City officials were recom-mending against certifying the test results.See id., at 215a (‘‘Attorney Ude took of-fense, stating, ‘Frankly, because I wouldnever make a recommendation—I wouldnot have made a recommendation likethat’ ’’). But within days of making thatpublic statement, Ude privately told othermembers of the Mayor’s team ‘‘the ONLYway we get to a decision not to certify is’’to focus on something other than ‘‘a bigdiscussion re: adverse impact’’ law. Id.,at 458a–459a.


As part of its effort to deflect attentionfrom the specifics of the test, the Cityrelied heavily on the testimony of Dr.Christopher Hornick, who is one of ChadLegel’s competitors in the test-develop-ment business. Hornick never ‘‘stud[ied]the test [that Legel developed] at lengthor in detail,’’ id., at 549a; see also id., at203a, 553a, but Hornick did review andrely upon literature sent to him by Burgettto criticize Legel’s test. For example,Hornick ‘‘noted in the literature that [Bur-gett] sent that the test was not customizedto the New Haven Fire Department.’’ Id.,at 551a. The Chairman of the CSB imme-diately corrected Hornick. Id., at 552a(‘‘Actually, it was, Dr. Hornick’’). Hornickalso relied on newspaper accounts—again,sent to him by Burgett—pertaining to thecontroversy surrounding the certificationdecision. See id., at 204a, 557a. AlthoughHornick again admitted that he had noknowledge about the actual test that Legelhad developed and that the City had ad-ministered, see id., at 560a–561a, the Cityrepeatedly relied upon Hornick as a test-ing ‘‘guru’’ and, in the CSB Chairman’swords, ‘‘the City ke[pt] quoting him as aperson that we should rely upon more thananybody else [to conclude that there] is abetter way—a better mousetrap.’’ 2 App.in No. 06–4996–cv (CA2), at A1128. Du-bois–Walton later admitted that the Cityrewarded Hornick for his testimony byhiring him to develop and administer analternative test. App. to Pet. for Cert. inNo. 07–1428, at 854a; see also id., at 562a–563a (Hornick’s plea for future businessfrom the City on the basis of his criticismsof Legel’s tests).

At some point prior to the CSB’s publicmeeting on March 18, 2004, the Mayordecided to use his executive authority todisregard the test results—even if theCSB ultimately voted to certify them. Id.,at 819a–820a. Accordingly, on the eveningof March 17th, Dubois–Walton sent an e-mail to the Mayor, the Mayor’s executiveassistant, Burgett, and attorney Ude, at-taching two alternative press releases.Id., at 457a. The first would be issued ifthe CSB voted not to certify the test re-sults; the second would be issued (andwould explain the Mayor’s invocation of hisexecutive authority) if the CSB voted tocertify the test results. Id., at 217a–218a,590a–591a, 819a–820a. Half an hour afterDubois–Walton circulated the alternativedrafts, Burgett replied: ‘‘[W]ell, thatseems to say it all. Let’s hope draft # 2hits the shredder tomorrow nite.’’ Id., at457a.

Soon after the CSB voted against certifi-cation, Mayor DeStefano appeared at adinner event and ‘‘took credit for thescu[tt]ling of the examination results.’’Id., at 230a.

C

Taking into account all the evidence inthe summary judgment record, a reason-able jury could find the following. Almostas soon as the City disclosed the racialmakeup of the list of firefighters whoscored the highest on the exam, the Cityadministration was lobbied by an influen-tial community leader to scrap the testresults, and the City administration decid-ed on that course of action before making

2. The City’s heavy reliance on Hornick’s testi-mony makes the two chiefs’ silence all themore striking. See supra, at 2685. WhileHornick knew little or nothing about the testshe criticized, the two chiefs were involved‘‘during the lengthy process that led to thedevising of the administration of these ex-

ams,’’ App. to Pet. for Cert. in No. 07–1428, at847a, including ‘‘collaborating with City offi-cials on the extensive job analyses that weredone,’’ ‘‘selection of the oral panelists,’’ andselection of ‘‘the proper content and subjectmatter of the exams,’’ id., at 847a–848a.


any real assessment of the possibility of adisparate-impact violation. To achievethat end, the City administration concealedits internal decision but worked—as thingsturned out, successfully—to persuade theCSB that acceptance of the test resultswould be illegal and would expose the Cityto disparate-impact liability. But in theevent that the CSB was not persuaded, theMayor, wielding ultimate decisionmakingauthority, was prepared to overrule theCSB immediately. Taking this view of theevidence, a reasonable jury could easilyfind that the City’s real reason for scrap-ping the test results was not a concernabout violating the disparate-impact provi-sion of Title VII but a simple desire toplease a politically important racial constit-uency. It is noteworthy that the SolicitorGeneral—whose position on the principallegal issue in this case is largely alignedwith the dissent—concludes that ‘‘[n]eitherthe district court nor the court of appealsTTT adequately considered whether, view-ing the evidence in the light most favor-able to petitioners, a genuine issue of ma-terial fact remained whether respondents’claimed purpose to comply with Title VIIwas a pretext for intentional racial dis-crimination TTT .’’ Brief for United Statesas Amicus Curiae 6; see also id., at 32–33.

III

I will not comment at length on thedissent’s criticism of my analysis, but twopoints require a response.

The first concerns the dissent’s state-ment that I ‘‘equat[e] political consider-ations with unlawful discrimination.’’Post, at 2708 – 2709. The dissent misre-presents my position: I draw no suchequation. Of course ‘‘there are many waysin which a politician can attempt to winover a constituency—including a racialconstituency—without engaging in unlaw-ful discrimination.’’ Post, at 2708 – 2709.

But—as I assume the dissent wouldagree—there are some things that a publicofficial cannot do, and one of those is en-gaging in intentional racial discriminationwhen making employment decisions.

The second point concerns the dissent’smain argument—that efforts by the Mayorand his staff to scuttle the test results areirrelevant because the ultimate decisionwas made by the CSB. According to thedissent, ‘‘[t]he relevant decision was madeby the CSB,’’ post, at 2708 – 2709, andthere is ‘‘scant cause to suspect’’ that any-thing done by the opponents of certifica-tion, including the Mayor and his staff,‘‘prevented the CSB from evenhandedlyassessing the reliability of the exams andrendering an independent, good-faith deci-sion on certification,’’ post, at 2708.

Adoption of the dissent’s argumentwould implicitly decide an important ques-tion of Title VII law that this Court hasnever resolved—the circumstances inwhich an employer may be held liablebased on the discriminatory intent of sub-ordinate employees who influence but donot make the ultimate employment deci-sion. There is a large body of court ofappeals case law on this issue, and thesecases disagree about the proper standard.See EEOC v. BCI Coca–Cola Bottling Co.of Los Angeles, 450 F.3d 476, 484–488(C.A.10 2006) (citing cases and describingthe approaches taken in different Circuits).One standard is whether the subordinate‘‘exerted influenc[e] over the titular deci-sionmaker.’’ Russell v. McKinney Hosp.Venture, 235 F.3d 219, 227 (C.A.5 2000);see also Poland v. Chertoff, 494 F.3d 1174,1182 (C.A.9 2007) (A subordinate’s bias isimputed to the employer where the subor-dinate ‘‘influenced or was involved in thedecision or decisionmaking process’’). An-other is whether the discriminatory input‘‘caused the adverse employment action.’’


See BCI Coca–Cola Bottling Co. of LosAngeles, supra, at 487.

In the present cases, a reasonable jurycould certainly find that these standardswere met. The dissent makes much of thefact that members of the CSB swore underoath that their votes were based on thegood-faith belief that certification of theresults would have violated federal law.See post, at 2707 – 2708. But the goodfaith of the CSB members would not pre-clude a finding that the presentations engi-neered by the Mayor and his staff influ-enced or caused the CSB decision.

The least employee-friendly standardasks only whether ‘‘the actual decisionmak-er’’ acted with discriminatory intent, seeHill v. Lockheed Martin Logistics Man-agement, Inc., 354 F.3d 277, 291 (C.A.42004) (en banc), and it is telling that, evenunder this standard, summary judgmentfor respondents would not be proper.This is so because a reasonable jury couldcertainly find that in New Haven, theMayor—not the CSB—wielded the finaldecisionmaking power. After all, the May-or claimed that authority and was poisedto use it in the event that the CSB decidedto accept the test results. See supra, at2687. If the Mayor had the authority tooverrule a CSB decision accepting the testresults, the Mayor also presumably hadthe authority to overrule the CSB’s deci-sion rejecting the test results. In light ofthe Mayor’s conduct, it would be quitewrong to throw out petitioners’ case on theground that the CSB was the ultimatedecisionmaker.

* * *

Petitioners are firefighters who seekonly a fair chance to move up the ranks intheir chosen profession. In order to quali-fy for promotion, they made personal sac-rifices. Petitioner Frank Ricci, who isdyslexic, found it necessary to ‘‘hir[e]

someone, at considerable expense, to readonto audiotape the content of the booksand study materials.’’ App. to Pet. forCert. in No. 07–1428, at 169a. He ‘‘studiedan average of eight to thirteen hours a dayTTT, even listening to audio tapes whiledriving his car.’’ Ibid. Petitioner Benja-min Vargas, who is Hispanic, had to ‘‘giveup a part-time job,’’ and his wife had to‘‘take leave from her own job in order totake care of their three young childrenwhile Vargas studied.’’ Id., at 176a.‘‘Vargas devoted countless hours to studyTTT, missed two of his children’s birthdaysand 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 forwhich they qualified because of the raceand ethnicity of the firefighters whoachieved the highest scores on the City’sexam. The District Court threw out theircase on summary judgment, even thoughthat court all but conceded that a jurycould find that the City’s asserted justifica-tion was pretextual. The Court of Appealsthen summarily affirmed that decision.

The dissent grants that petitioners’ sit-uation is ‘‘unfortunate’’ and that they‘‘understandably attract this Court’s sym-pathy.’’ Post, at 2690, 2710. But ‘‘sym-pathy’’ is not what petitioners have aright to demand. What they have aright to demand is evenhanded enforce-ment of the law—of Title VII’s prohibi-tion against discrimination based on race.And that is what, until today’s decision,has been denied them.

Justice GINSBURG, with whom JusticeSTEVENS, Justice SOUTER, and JusticeBREYER join, dissenting.

In assessing claims of race discrimina-tion, ‘‘[c]ontext matters.’’ Grutter v. Bol-linger, 539 U.S. 306, 327, 123 S.Ct. 2325,


156 L.Ed.2d 304 (2003). In 1972, Con-gress extended Title VII of the CivilRights Act of 1964 to cover public employ-ment. At that time, municipal fire depart-ments across the country, including NewHaven’s, pervasively discriminated againstminorities. The extension of Title VII tocover jobs in firefighting effected no over-night change. It took decades of persis-tent effort, advanced by Title VII litiga-tion, to open firefighting posts to membersof racial minorities.

The white firefighters who scored highon New Haven’s promotional exams under-standably attract this Court’s sympathy.But they had no vested right to promotion.Nor have other persons received pro-motions in preference to them. New Ha-ven maintains that it refused to certify thetest results because it believed, for goodcause, that it would be vulnerable to aTitle VII disparate-impact suit if it reliedon those results. The Court today holdsthat New Haven has not demonstrated ‘‘astrong basis in evidence’’ for its plea.Ante, at 2664. In so holding, the Courtpretends that ‘‘[t]he City rejected the testresults solely because the higher scoringcandidates were white.’’ Ante, at 2674.That pretension, essential to the Court’sdisposition, ignores substantial evidence ofmultiple flaws in the tests New Havenused. The Court similarly fails to ac-knowledge the better tests used in othercities, which have yielded less raciallyskewed outcomes.1

By order of this Court, New Haven, acity in which African–Americans and His-panics account for nearly 60 percent of thepopulation, must today be served—as itwas in the days of undisguised discrimina-

tion—by a fire department in which mem-bers of racial and ethnic minorities arerarely seen in command positions. In ar-riving at its order, the Court barely ac-knowledges the pathmarking decision inGriggs v. Duke Power Co., 401 U.S. 424, 91S.Ct. 849, 28 L.Ed.2d 158 (1971), whichexplained the centrality of the disparate-impact concept to effective enforcement ofTitle VII. The Court’s order and opinion, Ianticipate, will not have staying power.

I

A

The Court’s recitation of the facts leavesout important parts of the story. Fire-fighting is a profession in which the legacyof racial discrimination casts an especiallylong shadow. In extending Title VII tostate and local government employers in1972, Congress took note of a U.S. Com-mission on Civil Rights (USCCR) reportfinding racial discrimination in municipalemployment even ‘‘more pervasive than inthe private sector.’’ H.R.Rep. No. 92–238,p. 17 (1971). According to the report,overt racism was partly to blame, but sotoo was a failure on the part of municipalemployers to apply merit-based employ-ment principles. In making hiring andpromotion decisions, public employers of-ten ‘‘rel[ied] on criteria unrelated to jobperformance,’’ including nepotism or politi-cal patronage. 118 Cong. Rec. 1817 (1972).Such flawed selection methods served toentrench preexisting racial hierarchies.The USCCR report singled out police andfire departments for having ‘‘[b]arriers toequal employment TTT greater TTT than in

1. Never mind the flawed tests New Havenused and the better selection methods usedelsewhere, Justice ALITO’s concurring opin-ion urges. Overriding all else, racial politics,fired up by a strident African–American pas-tor, were at work in New Haven. See ante, at

2665 – 2668. Even a detached and disinter-ested observer, however, would have everyreason to ask: Why did such racially skewedresults occur in New Haven, when better testslikely would have produced less dispropor-tionate results?


any other area of State or local govern-ment,’’ with African–Americans ‘‘hold[ing]almost no positions in the officer ranks.’’Ibid. See also National Commission onFire Prevention and Control, AmericaBurning 5 (1973) (‘‘Racial minorities areunder-represented in the fire departmentsin nearly every community in which theylive.’’).

The city of New Haven (City) was noexception. In the early 1970’s, African–Americans and Hispanics composed 30percent of New Haven’s population, butonly 3.6 percent of the City’s 502 firefight-ers. The racial disparity in the officerranks was even more pronounced: ‘‘[O]fthe 107 officers in the Department onlyone was black, and he held the lowest rankabove private.’’ Firebird Soc. of New Ha-ven, Inc. v. New Haven Bd. of FireComm’rs, 66 F.R.D. 457, 460 (Conn.1975).

Following a lawsuit and settlementagreement, see ibid., the City initiated ef-forts to increase minority representation inthe New Haven Fire Department (Depart-ment). Those litigation-induced effortsproduced some positive change. New Ha-ven’s population includes a greater propor-tion of minorities today than it did in the1970’s: Nearly 40 percent of the City’sresidents are African–American and morethan 20 percent are Hispanic. Among en-try-level firefighters, minorities are stillunderrepresented, but not starkly so. Asof 2003, African–Americans and Hispanicsconstituted 30 percent and 16 percent ofthe City’s firefighters, respectively. In su-pervisory positions, however, significantdisparities remain. Overall, the senior of-ficer ranks (captain and higher) are ninepercent African–American and nine per-cent Hispanic. Only one of the Depart-ment’s 21 fire captains is African–Ameri-can. See App. in No. 06–4996–cv (CA2), p.A1588 (hereinafter CA2 App.). It isagainst this backdrop of entrenched in-

equality that the promotion process at is-sue in this litigation should be assessed.

B

By order of its charter, New Havenmust use competitive examinations to fillvacancies in fire officer and other civil-service positions. Such examinations, theCity’s civil service rules specify, ‘‘shall bepractical in nature, shall relate to matterswhich fairly measure the relative fitnessand capacity of the applicants to dischargethe duties of the position which they seek,and shall take into account character,training, experience, physical and mentalfitness.’’ Id., at A331. The City maychoose among a variety of testing methods,including written and oral exams and‘‘[p]erformance tests to demonstrate skilland ability in performing actual work.’’Id., at A332.

New Haven, the record indicates, didnot closely consider what sort of ‘‘prac-tical’’ examination would ‘‘fairly measurethe relative fitness and capacity of theapplicants to discharge the duties’’ of a fireofficer. Instead, the City simply adheredto the testing regime outlined in its two-decades-old contract with the local fire-fighters’ union: a written exam, whichwould account for 60 percent of an appli-cant’s total score, and an oral exam, whichwould account for the remaining 40 per-cent. Id., at A1045. In soliciting bidsfrom exam development companies, NewHaven made clear that it would entertainonly ‘‘proposals that include a written com-ponent that will be weighted at 60%, andan oral component that will be weighted at40%.’’ Id., at A342. Chad Legel, a repre-sentative of the winning bidder, Industri-al/Organizational Solutions, Inc. (IOS), tes-tified during his deposition that the Citynever asked whether alternative methodsmight better measure the qualities of asuccessful fire officer, including leadership


skills and command presence. See id., atA522 (‘‘I was under contract and had re-sponsibility only to create the oral inter-view and the written exam.’’).

Pursuant to New Haven’s specifications,IOS developed and administered the oraland written exams. The results showedsignificant racial disparities. On the lieu-tenant exam, the pass rate for African–American candidates was about one-halfthe rate for Caucasian candidates; thepass rate for Hispanic candidates was evenlower. On the captain exam, both Afri-can–American and Hispanic candidatespassed at about half the rate of their Cau-casian counterparts. See App. 225–226.More striking still, although nearly half ofthe 77 lieutenant candidates were African–American or Hispanic, none would havebeen eligible for promotion to the eightpositions then vacant. The highest scoringAfrican–American candidate ranked 13th;the top Hispanic candidate was 26th. Asfor the seven then-vacant captain positions,two Hispanic candidates would have beeneligible, but no African–Americans. Thehighest scoring African–American candi-date ranked 15th. See id., at 218–219.

These stark disparities, the Court ac-knowledges, sufficed to state a prima faciecase under Title VII’s disparate-impactprovision. See ante, at 2678 (‘‘The passrates of minorities TTT f[e]ll well below the80–percent standard set by the [EqualEmployment Opportunity Commission(EEOC) ] to implement the disparate-im-pact provision of Title VII.’’). New Haventhus had cause for concern about the pros-pect of Title VII litigation and liability.City officials referred the matter to theNew Haven Civil Service Board (CSB), theentity responsible for certifying the resultsof employment exams.

Between January and March 2004, theCSB held five public meetings to considerthe proper course. At the first meeting,

New Haven’s Corporation Counsel, Thom-as Ude, described the legal standard gov-erning Title VII disparate-impact claims.Statistical imbalances alone, Ude correctlyrecognized, do not give rise to liability.Instead, presented with a disparity, an em-ployer ‘‘has the opportunity and the bur-den of proving that the test is job-relatedand consistent with business necessity.’’CA2 App. A724. A Title VII plaintiff mayattempt to rebut an employer’s showing ofjob-relatedness and necessity by identify-ing alternative selection methods thatwould have been at least as valid but with‘‘less of an adverse or disparate or discrim-inatory effect.’’ Ibid. See also id., at A738.Accordingly, the CSB Commissioners un-derstood, their principal task was to decidewhether they were confident about thereliability of the exams: Had the examsfairly measured the qualities of a success-ful fire officer despite their disparate re-sults? Might an alternative examinationprocess have identified the most qualifiedcandidates without creating such signifi-cant racial imbalances?

Seeking a range of input on these ques-tions, the CSB heard from test takers, thetest designer, subject-matter experts, Cityofficials, union leaders, and communitymembers. Several candidates for pro-motion, who did not yet know their examresults, spoke at the CSB’s first two meet-ings. Some candidates favored certifica-tion. The exams, they emphasized, hadclosely tracked the assigned study materi-als. Having invested substantial time andmoney to prepare themselves for the test,they felt it would be unfair to scrap theresults. See, e.g., id., at A772–A773,A785–A789.

Other firefighters had a different view.A number of the exam questions, theypointed out, were not germane to NewHaven’s practices and procedures. See,e.g., id., at A774–A784. At least two candi-


dates opposed to certification noted un-equal access to study materials. Someindividuals, they asserted, had the neces-sary books even before the syllabus wasissued. Others had to invest substantialsums to purchase the materials and ‘‘wait amonth and a half for some of the booksbecause they were on back-order.’’ Id., atA858. These disparities, it was suggested,fell at least in part along racial lines.While many Caucasian applicants could ob-tain materials and assistance from rela-tives in the fire service, the overwhelmingmajority of minority applicants were ‘‘first-generation firefighters’’ without such sup-port networks. See id., at A857–A861,A886–A887.

A representative of the Northeast Re-gion of the International Association ofBlack Professional Firefighters, DonaldDay, also spoke at the second meeting.Statistical disparities, he told the CSB, hadbeen present in the Department’s previouspromotional exams. On earlier tests, how-ever, a few minority candidates had faredwell enough to earn promotions. Id., atA828. See also App. 218–219. Day con-trasted New Haven’s experience with thatof nearby Bridgeport, where minority fire-fighters held one-third of lieutenant andcaptain positions. Bridgeport, Day ob-served, had once used a testing processsimilar to New Haven’s, with a writtenexam accounting for 70 percent of an appli-cant’s score, an oral exam for 25 percent,and seniority for the remaining five per-cent. CA2 App. A830. Bridgeport recog-nized, however, that the oral component,more so than the written component, ad-dressed the sort of ‘‘real-life scenarios’’ fireofficers encounter on the job. Id., atA832. Accordingly, that city ‘‘changed therelative weights’’ to give primacy to theoral exam. Ibid. Since that time, Dayreported, Bridgeport had seen minorities‘‘fairly represented’’ in its exam results.Ibid.

The CSB’s third meeting featured IOSrepresentative Legel, the leader of theteam that had designed and administeredthe exams for New Haven. Several Cityofficials also participated in the discussion.Legel described the exam developmentprocess in detail. The City, he recounted,had set the ‘‘parameters’’ for the exams,specifically, the requirement of written andoral components with a 60/40 weighting.Id., at A923, A974. For security reasons,Department officials had not been permit-ted to check the content of the questionsprior to their administration. Instead,IOS retained a senior fire officer fromGeorgia to review the exams ‘‘for contentand 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., atA962. City officials did not dispute theneutrality of IOS’s work. But, they cau-tioned, even if individual exam questionshad no intrinsic bias, the selection processas a whole may nevertheless have beendeficient. The officials urged the CSB toconsult with experts about the ‘‘larger pic-ture.’’ Id., at A1012.

At its fourth meeting, CSB solicited theviews of three individuals with testing-re-lated expertise. Dr. Christopher Hornick,an industrial/organizational psychologyconsultant with 25 years’ experience withpolice and firefighter testing, described theexam results as having ‘‘relatively highadverse impact.’’ Id., at A1028. Most ofthe tests he had developed, Hornick stat-ed, exhibited ‘‘significantly and dramatical-ly less adverse impact.’’ Id., at A1029.Hornick downplayed the notion of ‘‘facialneutrality.’’ It was more important, headvised the CSB, to consider ‘‘the broaderissue of how your procedures and yourrules and the types of tests that you areusing are contributing to the adverse im-pact.’’ Id., at A1038.


Specifically, Hornick questioned NewHaven’s union-prompted 60/40 written/oralexamination structure, noting the availabil-ity of ‘‘different types of testing proce-dures that are much more valid in terms ofidentifying the best potential supervisorsin [the] fire department.’’ Id., at A1032.He suggested, for example, ‘‘an assess-ment center process, which is essentiallyan opportunity for candidates TTT to dem-onstrate how they would address a particu-lar problem as opposed to just verballysaying it or identifying the correct optionon a written test.’’ Id., at A1039–A1040.Such selection processes, Hornick said,better ‘‘identif[y] the best possible people’’and ‘‘demonstrate dramatically less ad-verse impacts.’’ Ibid. Hornick added:

‘‘I’ve spoken to at least 10,000, maybe15,000 firefighters in group settings inmy consulting practice and I have neverone time ever had anyone in the fireservice say to me, ‘Well, the person whoanswers—gets the highest score on awritten job knowledge, multiple-guesstest makes the best company officer.’We know that it’s not as valid as otherprocedures that exist.’’ Id., at A1033.

See also id., at A1042–A1043 (‘‘I think aperson’s leadership skills, their commandpresence, their interpersonal skills, theirmanagement skills, their tactical skillscould have been identified and evaluated ina much more appropriate way.’’).

Hornick described the written test itselfas ‘‘reasonably good,’’ id., at A1041, but hecriticized the decision not to allow Depart-ment officials to check the content. Ac-cording to Hornick, this ‘‘inevitably’’ led to‘‘test[ing] for processes and proceduresthat don’t necessarily match up into thedepartment.’’ Id., at A1034–A1035. Hepreferred ‘‘experts from within the depart-ment who have signed confidentialityagreements TTT to make sure that theterminology and equipment that’s being

identified from standardized readingsources apply to the department.’’ Id., atA1035.

Asked whether he thought the Cityshould certify the results, Hornick hedged:‘‘There is adverse impact in the test. Thatwill be identified in any proceeding thatyou have. You will have industrial psy-chology experts, if it goes to court, on bothsides. And it will not be a pretty orcomfortable position for anyone to be in.’’Id., at A1040–A1041. Perhaps, he sug-gested, New Haven might certify the re-sults but immediately begin exploring ‘‘al-ternative ways to deal with these issues’’ inthe future. Id., at A1041.

The two other witnesses made relativelybrief appearances. Vincent Lewis, a spe-cialist with the Department of HomelandSecurity and former fire officer in Michi-gan, believed the exams had generallytested relevant material, although he noteda relatively heavy emphasis on questionspertaining to being an ‘‘apparatus driver.’’He suggested that this may have disadvan-taged test takers ‘‘who had not had thetraining or had not had an opportunity todrive the apparatus.’’ Id., at A1051. Healso urged the CSB to consider whethercandidates had, in fact, enjoyed equal ac-cess to the study materials. Ibid. Cf. su-pra, at 2693.

Janet Helms, a professor of counselingpsychology at Boston College, observedthat two-thirds of the incumbent fire offi-cers who submitted job analyses to IOSduring the exam design phase were Cauca-sian. Members of different racial groups,Helms told the CSB, sometimes do theirjobs in different ways, ‘‘often because theexperiences that are open to white malefirefighters are not open to members ofthese other under-represented groups.’’CA2 App. A1063–A1064. The heavy reli-ance on job analyses from white firefight-


ers, she suggested, may thus have intro-duced an element of bias. Id., at A1063.

The CSB’s fifth and final meeting beganwith statements from City officials recom-mending against certification. Ude, NewHaven’s counsel, repeated the applicabledisparate-impact standard:

‘‘[A] finding of adverse impact is thebeginning, not the end, of a review oftesting procedures. Where a proceduredemonstrates adverse impact, you lookto how closely it is related to the jobthat you’re looking to fill and you alsolook at whether there are other ways totest for those qualities, those traits,those positions that are equally validwith less adverse impact.’’ Id., atA1100–A1101.

New Haven, Ude and other officials as-serted, would be vulnerable to Title VIIliability under this standard. Even if theexams were ‘‘facially neutral,’’ significantdoubts had been raised about whetherthey properly assessed the key attributesof a successful fire officer. Id., at A1103.See also id., at A1125 (‘‘Upon close readingof the exams, the questions themselveswould appear to test a candidate’s abilityto memorize textbooks but not necessarilyto identify solutions to real problems onthe fire ground.’’). Moreover, City offi-cials reminded the CSB, Hornick and oth-ers had identified better, less discriminato-ry selection methods-such as assessmentcenters or exams with a more heavilyweighted oral component. Id., at A1108–A1109, A1129–A1130.

After giving members of the public afinal chance to weigh in, the CSB voted oncertification, dividing 2 to 2. By rule, theresult was noncertification. Voting no,Commissioner Webber stated, ‘‘I originallywas going to vote to certify. TTT But I’veheard enough testimony here to give megreat doubts about the test itself and TTT

some of the procedures. And I believe we

can do better.’’ Id., at A1157. Commis-sioner Tirado likewise concluded that the‘‘flawed’’ testing process counseled againstcertification. Id., at A1158. ChairmanSegaloff and Commissioner Caplan votedto certify. According to Segaloff, the testi-mony had not ‘‘compelled [him] to say thisexam was not job-related,’’ and he wasunconvinced that alternative selection pro-cesses would be ‘‘less discriminatory.’’ Id.,at A1159–A1160. Both Segalhoff and Ca-plan, however, urged the City to undertakecivil service reform. Id., at A1150–A1154.

C

Following the CSB’s vote, petitioners—17 white firefighters and one Hispanic fire-fighter, all of whom had high marks on theexams—filed suit in the United States Dis-trict Court for the District of Connecticut.They named as defendants—respondentshere—the City, several City officials, alocal political activist, and the two CSBmembers who voted against certifying theresults. By opposing certification, peti-tioners alleged, respondents had discrimi-nated against them in violation of TitleVII’s disparate-treatment provision andthe Fourteenth Amendment’s Equal Pro-tection Clause. The decision not to certi-fy, respondents answered, was a lawfuleffort to comply with Title VII’s disparate-impact provision and thus could not haverun afoul of Title VII’s prohibition of dis-parate treatment. Characterizing respon-dents’ stated rationale as a mere pretext,petitioners insisted that New Haven wouldhave had a solid defense to any disparate-impact suit.

In a decision summarily affirmed by theCourt of Appeals, the District Court grant-ed summary judgment for respondents.554 F.Supp.2d 142 (Conn.2006), aff’d, 530F.3d 87 (C.A.2 2008) (per curiam). UnderSecond Circuit precedent, the DistrictCourt explained, ‘‘the intent to remedy the


disparate impact’’ of a promotional exam‘‘is not equivalent to an intent to discrimi-nate against non-minority applicants.’’ 554F.Supp.2d, at 157 (quoting Hayden v.County of Nassau, 180 F.3d 42, 51 (C.A.21999)). Rejecting petitioners’ pretext ar-gument, the court observed that the examresults were sufficiently skewed ‘‘to makeout a prima facie case of discrimination’’under Title VII’s disparate-impact provi-sion. 554 F.Supp.2d, at 158. Had NewHaven gone forward with certification andbeen sued by aggrieved minority test tak-ers, the City would have been forced todefend tests that were presumptively in-valid. And, as the CSB testimony of Hor-nick and others indicated, overcoming thatpresumption would have been no easytask. Id., at 153–156. Given Title VII’spreference for voluntary compliance, thecourt held, New Haven could lawfully dis-card the disputed exams even if the Cityhad not definitively ‘‘pinpoint[ed]’’ thesource of the disparity and ‘‘ha[d] not yetformulated a better selection method.’’Id., at 156.

Respondents were no doubt conscious ofrace during their decisionmaking process,the court acknowledged, but this did notmean they had engaged in racially dispa-rate treatment. The conclusion they hadreached and the action thereupon takenwere race-neutral in this sense: ‘‘[A]ll thetest results were discarded, no one waspromoted, and firefighters of every racewill have to participate in another selection

process to be considered for promotion.’’Id., at 158. New Haven’s action, whichgave no individual a preference, ‘‘was ‘sim-ply not analogous to a quota system or aminority set-aside where candidates, onthe basis of their race, are not treateduniformly.’ ’’ Id., at 157 (quoting Hayden,180 F.3d, at 50). For these and otherreasons, the court also rejected petitioners’equal protection claim.

II

A

Title VII became effective in July 1965.Employers responded to the law by elimi-nating rules and practices that explicitlybarred racial minorities from ‘‘white’’ jobs.But removing overtly race-based job clas-sifications did not usher in genuinely equalopportunity. More subtle—and sometimesunconscious—forms of discrimination re-placed once undisguised restrictions.

In Griggs v. Duke Power Co., 401 U.S.424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971),this Court responded to that reality andsupplied important guidance on Title VII’smission and scope. Congress, the land-mark decision recognized, aimed beyond‘‘disparate treatment’’; it targeted ‘‘dispa-rate impact’’ as well. Title VII’s originaltext, it was plain to the Court, ‘‘pro-scribe[d] not only overt discrimination butalso practices that are fair in form, butdiscriminatory in operation.’’ Id., at 431,91 S.Ct. 849.2 Only by ignoring Griggs

2. The Court’s disparate-impact analysis restedon two provisions of Title VII: § 703(a)(2),which made it unlawful for an employer ‘‘tolimit, segregate, or classify his employees inany way which would deprive or tend to de-prive any individual of employment opportu-nities or otherwise adversely affect his statusas an employee, because of such individual’srace, color, religion, sex, or national origin’’;and § 703(h), which permitted employers ‘‘toact upon the results of any professionally de-veloped ability test provided that such test, its

administration or action upon the results isnot designed, intended or used to discrimi-nate because of race, color, religion, sex ornational origin.’’ Griggs v. Duke Power Co.,401 U.S. 424, 426, n. 1, 91 S.Ct. 849, 28L.Ed.2d 158 (1971) (quoting 78 Stat. 255, 42U.S.C. § 2000e–2(a)(2), (h) (1964 ed.)). Seealso 401 U.S., at 433–436, 91 S.Ct. 849 (ex-plaining that § 703(h) authorizes only teststhat are ‘‘demonstrably a reasonable measureof job performance’’).


could one maintain that intentionally dispa-rate treatment alone was Title VII’s ‘‘origi-nal, foundational prohibition,’’ and dispa-rate impact a mere afterthought. Cf. ante,at 2675.

Griggs addressed Duke Power Compa-ny’s policy that applicants for positions,save in the company’s labor department,be high school graduates and score satis-factorily on two professionally preparedaptitude tests. ‘‘[T]here was no showingof a discriminatory purpose in the adoptionof the diploma and test requirements.’’401 U.S., at 428, 91 S.Ct. 849. The policy,however, ‘‘operated to render ineligible amarkedly disproportionate number of [Af-rican–Americans].’’ Id., at 429, 91 S.Ct.849. At the time of the litigation, in NorthCarolina, where the Duke Power plant waslocated, 34 percent of white males, butonly 12 percent of African–Americanmales, had high school diplomas. Id., at430, n. 6, 91 S.Ct. 849. African–Americansalso failed the aptitude tests at a signifi-cantly higher rate than whites. Ibid. Nei-ther requirement had been ‘‘shown to beara demonstrable relationship to successfulperformance of the jobs for which it wasused.’’ Id., at 431, 91 S.Ct. 849.

The Court unanimously held that thecompany’s diploma and test requirementsviolated Title VII. ‘‘[T]o achieve equality ofemployment opportunities,’’ the Courtcomprehended, Congress ‘‘directed thethrust of the Act to the consequences ofemployment practices, not simply the moti-vation.’’ Id., at 429, 432, 91 S.Ct. 849.That meant ‘‘unnecessary barriers to em-ployment’’ must fall, even if ‘‘neutral ontheir face’’ and ‘‘neutral in terms of in-tent.’’ Id., at 430, 431, 91 S.Ct. 849. ‘‘Thetouchstone’’ for determining whether a test

or qualification meets Title VII’s measure,the Court said, is not ‘‘good intent or theabsence of discriminatory intent’’; it is‘‘business necessity.’’ Id., at 431, 432, 91S.Ct. 849. Matching procedure to sub-stance, the Griggs Court observed, Con-gress ‘‘placed on the employer the burdenof showing that any given requirement TTT

ha[s] a manifest relationship to the em-ployment in question.’’ Id., at 432, 91S.Ct. 849.

In Albemarle Paper Co. v. Moody, 422U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280(1975), the Court, again without dissent,elaborated on Griggs. When an employ-ment test ‘‘select[s] applicants for hire orpromotion in a racial pattern significantlydifferent from the pool of applicants,’’ theCourt reiterated, the employer must dem-onstrate a ‘‘manifest relationship’’ betweentest and job. 422 U.S., at 425, 95 S.Ct.2362. Such a showing, the Court cau-tioned, does not necessarily mean the em-ployer prevails: ‘‘[I]t remains open to thecomplaining party to show that other testsor selection devices, without a similarlyundesirable racial effect, would also servethe employer’s legitimate interest in ‘effi-cient and trustworthy workmanship.’ ’’Ibid.

Federal trial and appellate courts ap-plied Griggs and Albemarle to disallow ahost of hiring and promotion practices that‘‘operate[d] as ‘built in headwinds’ for mi-nority groups.’’ Griggs, 401 U.S., at 432,91 S.Ct. 849. Practices discriminatory ineffect, courts repeatedly emphasized, couldbe maintained only upon an employer’sshowing of ‘‘an overriding and compellingbusiness purpose.’’ Chrisner v. CompleteAuto Transit, Inc., 645 F.2d 1251, 1261, n.9 (C.A.6 1981).3 That a practice served

3. See also Dothard v. Rawlinson, 433 U.S.321, 332, n. 14, 97 S.Ct. 2720, 53 L.Ed.2d 786(1977) (‘‘a discriminatory employment prac-tice must be shown to be necessary to safe

and efficient job performance to survive aTitle VII challenge’’); Williams v. ColoradoSprings, Colo., School Dist., 641 F.2d 835,840–841 (C.A.10 1981) (‘‘The term ‘necessity’


‘‘legitimate management functions’’ didnot, it was generally understood, suffice toestablish business necessity. Williams v.Colorado Springs, Colo., School Dist., 641F.2d 835, 840–841 (C.A.10 1981) (internalquotation marks omitted). Among selec-tion methods cast aside for lack of a ‘‘mani-fest relationship’’ to job performance werea number of written hiring and promotion-al examinations for firefighters.4

Moving in a different direction, inWards Cove Packing Co. v. Atonio, 490U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733(1989), a bare majority of this Court signif-icantly modified the Griggs–Albemarle de-lineation of Title VII’s disparate-impactproscription. As to business necessity fora practice that disproportionately excludesmembers of minority groups, Wards Coveheld, the employer bears only the burdenof production, not the burden of persua-sion. 490 U.S., at 659–660, 109 S.Ct. 2115.And in place of the instruction that thechallenged practice ‘‘must have a manifestrelationship to the employment in ques-tion,’’ Griggs, 401 U.S., at 432, 91 S.Ct.849, Wards Cove said that the practicewould be permissible as long as it‘‘serve[d], in a significant way, the legiti-

mate employment goals of the employer.’’490 U.S., at 659, 109 S.Ct. 2115.

In response to Wards Cove and ‘‘a num-ber of [other] recent decisions by the Unit-ed States Supreme Court that sharply cutback on the scope and effectiveness of[civil rights] laws,’’ Congress enacted theCivil Rights Act of 1991. H.R.Rep. No.102–40, pt. 2, p. 2 (1991). Among the 1991alterations, Congress formally codified thedisparate-impact component of Title VII.In so amending the statute, Congressmade plain its intention to restore ‘‘theconcepts of ‘business necessity’ and ‘jobrelated’ enunciated by the Supreme Courtin Griggs v. Duke Power Co. TTT and inother Supreme Court decisions prior toWards Cove Packing Co. v. Atonio.’’§ 3(2), 105 Stat. 1071. Once a complainingparty demonstrates that an employmentpractice causes a disparate impact, amend-ed Title VII states, the burden is on theemployer ‘‘to demonstrate that the chal-lenged practice is job related for the posi-tion in question and consistent with busi-ness necessity.’’ 42 U.S.C. § 2000e–2(k)(1)(A)(i). If the employer carries thatsubstantial burden, the complainant mayrespond by identifying ‘‘an alternative em-

connotes that the exclusionary practice mustbe shown to be of great importance to jobperformance.’’); Kirby v. Colony FurnitureCo., 613 F.2d 696, 705, n. 6 (C.A.8 1980) (‘‘theproper standard for determining whether‘business necessity’ justifies a practice whichhas a racially discriminatory result is notwhether it is justified by routine business con-siderations but whether there is a compellingneed for the employer to maintain that prac-tice and whether the employer can provethere is no alternative to the challenged prac-tice’’); Pettway v. American Cast Iron Pipe Co.,494 F.2d 211, 244, n. 87 (C.A.5 1974) (‘‘thisdoctrine of business necessity TTT connotes anirresistible demand’’ (internal quotationmarks omitted)); United States v. BethlehemSteel Corp., 446 F.2d 652, 662 (C.A.2 1971)(an exclusionary practice ‘‘must not only di-rectly foster safety and efficiency of a plant,but also be essential to those goals’’); Robin-

son v. Lorillard Corp., 444 F.2d 791, 798(C.A.4 1971) (‘‘The test is whether there existsan overriding legitimate business purposesuch that the practice is necessary to the safeand efficient operation of the business.’’).

4. See, e.g., Nash v. Jacksonville, 837 F.2d1534 (C.A.11 1988), vacated, 490 U.S. 1103,109 S.Ct. 3151, 104 L.Ed.2d 1015 (1989),opinion reinstated, 905 F.2d 355 (C.A.111990); Vulcan Pioneers, Inc. v. New JerseyDept. 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 (C.A.2 1980);Ensley Branch of NAACP v. Seibels, 616 F.2d812 (C.A.5 1980); Firefighters Inst. for RacialEquality v. St. Louis, 616 F.2d 350 (C.A.81980); Boston Chapter, NAACP v. Beecher,504 F.2d 1017 (C.A.1 1974).


ployment practice’’ which the employer‘‘refuses to adopt.’’ § 2000e–2(k)(1)(A)(ii),(C).

B

Neither Congress’ enactments nor thisCourt’s Title VII precedents (including thenow-discredited decision in Wards Cove )offer even a hint of ‘‘conflict’’ between anemployer’s obligations under the statute’sdisparate-treatment and disparate-impactprovisions. Cf. ante, at 2673 – 2674.Standing on an equal footing, these twinpillars of Title VII advance the same ob-jectives: ending workplace discriminationand promoting genuinely equal opportuni-ty. See McDonnell Douglas Corp. v.Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 36L.Ed.2d 668 (1973).

Yet the Court today sets at odds thestatute’s core directives. When an em-ployer changes an employment practice inan effort to comply with Title VII’s dispa-rate-impact provision, the Court reasons, itacts ‘‘because of race’’—something TitleVII’s disparate-treatment provision, see§ 2000e–2(a)(1), generally forbids. Ante,at 2673 – 2674. This characterization of anemployer’s compliance-directed actionshows little attention to Congress’ designor to the Griggs line of cases Congressrecognized as pathmarking.

‘‘[O]ur task in interpreting separate pro-visions of a single Act is to give the Actthe most harmonious, comprehensivemeaning possible in light of the legislativepolicy and purpose.’’ Weinberger v. Hyn-son, Westcott & Dunning, Inc., 412 U.S.609, 631–632, 93 S.Ct. 2469, 37 L.Ed.2d 207(1973) (internal quotation marks omitted).A particular phrase need not ‘‘extend tothe outer limits of its definitional possibili-ties’’ if an incongruity would result. Do-

lan v. Postal Service, 546 U.S. 481, 486,126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006).Here, Title VII’s disparate-treatment anddisparate-impact proscriptions must beread as complementary.

In codifying the Griggs and Albemarleinstructions, Congress declared unambigu-ously that selection criteria operating tothe disadvantage of minority group mem-bers can be retained only if justified bybusiness necessity.5 In keeping with Con-gress’ design, employers who reject suchcriteria due to reasonable doubts abouttheir reliability can hardly be held to haveengaged in discrimination ‘‘because of’’race. A reasonable endeavor to complywith the law and to ensure that qualifiedcandidates of all races have a fair opportu-nity to compete is simply not what Con-gress meant to interdict. I would there-fore hold that an employer who jettisons aselection device when its disproportionateracial impact becomes apparent does notviolate Title VII’s disparate-treatment barautomatically or at all, subject to this keycondition: The employer must have goodcause to believe the device would not with-stand examination for business necessity.Cf. Faragher v. Boca Raton, 524 U.S. 775,806, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)(observing that it accords with ‘‘clear stat-utory policy’’ for employers ‘‘to preventviolations’’ and ‘‘make reasonable efforts todischarge their duty’’ under Title VII).

EEOC’s interpretative guidelines arecorroborative. ‘‘[B]y the enactment of ti-tle VII,’’ the guidelines state, ‘‘Congressdid not intend to expose those who complywith the Act to charges that they areviolating the very statute they are seekingto implement.’’ 29 CFR § 1608.1(a)(2008). Recognizing EEOC’s ‘‘enforce-

5. What was the ‘‘business necessity’’ for thetests New Haven used? How could one justi-fy, e.g., the 60/40 written/oral ratio, see supra,

at 2665 – 2666, 2667 – 2668, under that stan-dard? Neither the Court nor the concurringopinions attempt to defend the ratio.


ment responsibility’’ under Title VII, wehave previously accorded the Commission’sposition respectful consideration. See,e.g., Albemarle, 422 U.S., at 431, 95 S.Ct.2362; Griggs, 401 U.S., at 434, 91 S.Ct.849. Yet the Court today does not somuch as mention EEOC’s counsel.

Our precedents defining the contours ofTitle VII’s disparate-treatment prohibitionfurther confirm the absence of any intra-statutory discord. In Johnson v. Trans-portation Agency, Santa Clara Cty., 480U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615(1987), we upheld a municipal employer’svoluntary affirmative-action plan against adisparate-treatment challenge. Pursuantto the plan, the employer selected a wom-an for a road-dispatcher position, a jobcategory traditionally regarded as ‘‘male.’’A male applicant who had a slightly higherinterview score brought suit under TitleVII. This Court rejected his claim andapproved the plan, which allowed consider-ation of gender as ‘‘one of numerous fac-tors.’’ Id., at 638, 107 S.Ct. 1442. Suchconsideration, we said, is ‘‘fully consistentwith Title VII’’ because plans of that ordercan aid ‘‘in eliminating the vestiges of dis-crimination in the workplace.’’ Id., at 642,107 S.Ct. 1442.

This litigation does not involve affirma-tive action. But if the voluntary affirma-tive action at issue in Johnson does notdiscriminate within the meaning of TitleVII, neither does an employer’s reasonableeffort to comply with Title VII’s disparate-impact provision by refraining from actionof doubtful consistency with business ne-cessity.

C

To ‘‘reconcile’’ the supposed ‘‘conflict’’between disparate treatment and disparateimpact, the Court offers an enigmatic stan-dard. Ante, at 2673 – 2674. Employersmay attempt to comply with Title VII’s

disparate-impact provision, the Court de-clares, only where there is a ‘‘strong basisin evidence’’ documenting the necessity oftheir action. Ante, at 2662. The Court’sstandard, drawn from inapposite equalprotection precedents, is not elaborated.One is left to wonder what cases wouldmeet the standard and why the Court is sosure this case does not.

1

In construing Title VII, I note prelimi-narily, equal protection doctrine is of limit-ed utility. The Equal Protection Clause,this Court has held, prohibits only inten-tional discrimination; it does not have adisparate-impact component. See Person-nel Administrator of Mass. v. Feeney, 442U.S. 256, 272, 99 S.Ct. 2282, 60 L.Ed.2d870 (1979); Washington v. Davis, 426 U.S.229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597(1976). Title VII, in contrast, aims toeliminate all forms of employment discrim-ination, unintentional as well as deliberate.Until today, cf. ante, at 2664; ante, p. 2664(SCALIA, J., concurring), this Court hasnever questioned the constitutionality ofthe disparate-impact component of TitleVII, and for good reason. By instructingemployers to avoid needlessly exclusionaryselection processes, Title VII’s disparate-impact provision calls for a ‘‘race-neutralmeans to increase minority TTT partic-ipation’’—something this Court’s equalprotection precedents also encourage. SeeAdarand Constructors, Inc. v. Pena, 515U.S. 200, 238, 115 S.Ct. 2097, 132 L.Ed.2d158 (1995) (quoting Richmond v. J.A. Cro-son Co., 488 U.S. 469, 507, 109 S.Ct. 706,102 L.Ed.2d 854 (1989)). ‘‘The very radi-calism of holding disparate impact doctrineunconstitutional as a matter of equal pro-tection,’’ moreover, ‘‘suggests that only avery uncompromising court would issuesuch a decision.’’ Primus, Equal Protec-


tion and Disparate Impact: Round Three,117 Harv. L.Rev. 493, 585 (2003).

The cases from which the Court drawsits strong-basis-in-evidence standard areparticularly inapt; they concern the consti-tutionality of absolute racial preferences.See Wygant v. Jackson Bd. of Ed., 476U.S. 267, 277, 106 S.Ct. 1842, 90 L.Ed.2d260 (1986) (plurality opinion) (invalidatinga school district’s plan to lay off nonminor-ity teachers while retaining minorityteachers with less seniority); Croson, 488U.S., at 499–500, 109 S.Ct. 706 (rejecting aset-aside program for minority contractorsthat operated as ‘‘an unyielding racial quo-ta’’). An employer’s effort to avoid TitleVII liability by repudiating a suspect selec-tion method scarcely resembles thosecases. Race was not merely a relevantconsideration in Wygant and Croson; itwas the decisive factor. Observance ofTitle VII’s disparate-impact provision, incontrast, calls for no racial preference, ab-solute or otherwise. The very purpose ofthe provision is to ensure that individualsare hired and promoted based on qualifica-tions manifestly necessary to successfulperformance of the job in question, qualifi-cations that do not screen out members ofany race.6

2

The Court’s decision in this litigationunderplays a dominant Title VII theme.This Court has repeatedly emphasized thatthe statute ‘‘should not be read to thwart’’efforts at voluntary compliance. Johnson,

480 U.S., at 630, 107 S.Ct. 1442. Suchcompliance, we have explained, is ‘‘the pre-ferred means of achieving [Title VII’s] ob-jectives.’’ Firefighters v. Cleveland, 478U.S. 501, 515, 106 S.Ct. 3063, 92 L.Ed.2d405 (1986). See also Kolstad v. AmericanDental Assn., 527 U.S. 526, 545, 119 S.Ct.2118, 144 L.Ed.2d 494 (1999) (‘‘Dissuadingemployers from [taking voluntary action]to prevent discrimination in the workplaceis directly contrary to the purposes under-lying Title VII.’’); 29 CFR § 1608.1(c).The strong-basis-in-evidence standard,however, as barely described in general,and cavalierly applied in this case, makesvoluntary compliance a hazardous venture.

As a result of today’s decision, an em-ployer who discards a dubious selectionprocess can anticipate costly disparate-treatment litigation in which its chancesfor success—even for surviving a sum-mary-judgment motion—are highly pro-blematic. Concern about exposure to dis-parate-impact liability, however wellgrounded, is insufficient to insulate an em-ployer from attack. Instead, the employermust make a ‘‘strong’’ showing that (1) itsselection method was ‘‘not job related andconsistent with business necessity,’’ or (2)that it refused to adopt ‘‘an equally valid,less-discriminatory alternative.’’ Ante, at2778. It is hard to see how these require-ments differ from demanding that an em-ployer establish ‘‘a provable, actual viola-tion’’ against itself. Cf. ante, at 2676.There is indeed a sharp conflict here, butit is not the false one the Court describesbetween Title VII’s core provisions. It is,

6. Even in Title VII cases involving race-con-scious (or gender-conscious) affirmative-ac-tion plans, the Court has never proposed astrong-basis-in-evidence standard. In John-son v. Transportation Agency, Santa ClaraCty., 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d615 (1987), the Court simply examined themunicipal employer’s action for reasonable-ness: ‘‘Given the obvious imbalance in theSkilled Craft category, and given the Agency’s

commitment to eliminating such imbalances,it was plainly not unreasonable for the Agen-cy TTT to consider as one factor the sex of[applicants] in making its decision.’’ Id., at637, 107 S.Ct. 1442. See also Firefighters v.Cleveland, 478 U.S. 501, 516, 106 S.Ct. 3063,92 L.Ed.2d 405 (1986) (‘‘Title VII permitsemployers and unions voluntarily to make useof reasonable race-conscious affirmative ac-tion.’’).


instead, the discordance of the Court’sopinion with the voluntary compliance ide-al. Cf. Wygant, 476 U.S., at 290, 106 S.Ct.1842 (O’Connor, J., concurring in part andconcurring in judgment) (‘‘The impositionof a requirement that public employersmake findings that they have engaged inillegal discrimination before they [act]would severely undermine public employ-ers’ incentive to meet voluntarily their civilrights obligations.’’).7

3

The Court’s additional justifications forannouncing a strong-basis-in-evidencestandard are unimpressive. First, discard-ing the results of tests, the Court suggests,calls for a heightened standard because it‘‘upset[s] an employee’s legitimate expecta-tion.’’ Ante, at 2677. This rationale putsthe cart before the horse. The legitimacyof an employee’s expectation depends onthe legitimacy of the selection method. Ifan employer reasonably concludes that anexam fails to identify the most qualifiedindividuals and needlessly shuts out a seg-ment of the applicant pool, Title VII surelydoes not compel the employer to hire orpromote based on the test, however unreli-able it may be. Indeed, the statute’sprime objective is to prevent exclusionarypractices from ‘‘operat[ing] to ‘freeze’ the

status quo.’’ Griggs, 401 U.S., at 430, 91S.Ct. 849.

Second, the Court suggests, anythingless than a strong-basis-in-evidence stan-dard risks creating ‘‘a de facto quota sys-tem, in which TTT an employer could dis-card test results TTT with the intent ofobtaining the employer’s preferred racialbalance.’’ Ante, at 2675. Under a reason-ableness standard, however, an employercould not cast aside a selection methodbased on a statistical disparity alone.8 Theemployer must have good cause to believethat the method screens out qualified ap-plicants and would be difficult to justify asgrounded in business necessity. Should anemployer repeatedly reject test results, itwould be fair, I agree, to infer that theemployer is simply seeking a racially bal-anced outcome and is not genuinely en-deavoring to comply with Title VII.

D

The Court stacks the deck further bydenying respondents any chance to satisfythe newly announced strong-basis-in-evi-dence standard. When this Court formu-lates a new legal rule, the ordinary courseis to remand and allow the lower courts toapply the rule in the first instance. See,e.g., Johnson v. California, 543 U.S. 499,515, 125 S.Ct. 1141, 160 L.Ed.2d 949(2005); Pullman–Standard v. Swint, 456

7. Notably, prior decisions applying a strong-basis-in-evidence standard have not imposeda burden as heavy as the one the Court impos-es today. In Croson, the Court found nostrong basis in evidence because the City hadoffered ‘‘nothing approaching a prima faciecase.’’ Richmond v. J.A. Croson Co., 488 U.S.469, 500, 109 S.Ct. 706, 102 L.Ed.2d 854(1989). The Court did not suggest that any-thing beyond a prima facie case would havebeen required. In the context of race-basedelectoral districting, the Court has indicatedthat a ‘‘strong basis’’ exists when the ‘‘thresh-old conditions’’ for liability are present.Bush v. Vera, 517 U.S. 952, 978, 116 S.Ct.

1941, 135 L.Ed.2d 248 (1996) (plurality opin-ion).

8. Infecting the Court’s entire analysis is itsinsistence that the City rejected the test re-sults ‘‘in sole reliance upon race-based statis-tics.’’ Ante, at 2676. See also ante, at 2673 –2674, 2677 – 2678. But as the part of thestory the Court leaves out, see supra, at2690 – 2695, so plainly shows—the long histo-ry of rank discrimination against African–Americans in the firefighting profession, themultiple flaws in New Haven’s test for pro-motions—‘‘sole reliance’’ on statistics certain-ly is not descriptive of the CSB’s decision.


U.S. 273, 291, 102 S.Ct. 1781, 72 L.Ed.2d66 (1982). I see no good reason why theCourt fails to follow that course in thiscase. Indeed, the sole basis for theCourt’s peremptory ruling is the demon-strably false pretension that respondentsshowed ‘‘nothing more’’ than ‘‘a significantstatistical disparity.’’ Ante, at 2677 – 2678;see supra, at 2702, n. 8.9

III

A

Applying what I view as the properstandard to the record thus far made, Iwould hold that New Haven had amplecause to believe its selection process wasflawed and not justified by business neces-sity. Judged by that standard, petitionershave not shown that New Haven’s failureto certify the exam results violated TitleVII’s disparate-treatment provision.10

The City, all agree, ‘‘was faced with aprima facie case of disparate-impact liabili-

ty,’’ ante, at 2677: The pass rate for mi-nority candidates was half the rate fornonminority candidates, and virtually nominority candidates would have been eligi-ble for promotion had the exam resultsbeen certified. Alerted to this stark dis-parity, the CSB heard expert and lay testi-mony, presented at public hearings, in anendeavor to ascertain whether the examswere fair and consistent with business ne-cessity. Its investigation revealed gravecause for concern about the exam processitself and the City’s failure to consideralternative selection devices.

Chief among the City’s problems wasthe very nature of the tests for promotion.In choosing to use written and oral examswith a 60/40 weighting, the City simplyadhered to the union’s preference and ap-parently gave no consideration to whetherthe weighting was likely to identify themost qualified fire-officer candidates.11

There is strong reason to think it was not.

9. The Court’s refusal to remand for furtherproceedings also deprives respondents of anopportunity 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 anyalleged unlawful employment practice, noperson shall be subject to any liability orpunishment for or on account of (1) the com-mission by such person of an unlawful em-ployment practice if he pleads and proves thatthe act or omission complained of was ingood faith, in conformity with, and in relianceon any written interpretation or opinion ofthe [EEOC] TTT. Such a defense, if estab-lished, shall be a bar to the action or proceed-ing, notwithstanding that (A) after such act oromission, such interpretation or opinion ismodified or rescinded or is determined byjudicial authority to be invalid or of no legaleffect TTT .’’Specifically, given the chance, respondentsmight have called attention to the EEOCguidelines set out in 29 CFR §§ 1608.3 and1608.4 (2008). The guidelines recognize thatemployers may ‘‘take affirmative action basedon an analysis which reveals facts constitut-ing actual or potential adverse impact.’’

§ 1608.3(a). If ‘‘affirmative action’’ is in or-der, so is the lesser step of discarding a dubi-ous selection device.

10. The lower courts focused on respondents’‘‘intent’’ rather than on whether respondentsin fact had good cause to act. See 554F.Supp.2d 142, 157 (Conn.2006). Ordinarily,a remand for fresh consideration would be inorder. But the Court has seen fit to precludefurther proceedings. I therefore explain why,if final adjudication by this Court is indeedappropriate, New Haven should be the pre-vailing party.

11. This alone would have posed a substantialproblem for New Haven in a disparate-impactsuit, particularly in light of the disparate re-sults the City’s scheme had produced in thepast. See supra, at 2692 – 2693. Under theUniform Guidelines on Employee SelectionProcedures (Uniform Guidelines), employersmust conduct ‘‘an investigation of suitablealternative selection procedures.’’ 29 CFR§ 1607.3(B). See also Officers for Justice v.Civil Serv. Comm’n, 979 F.2d 721, 728 (C.A.91992) (‘‘before utilizing a procedure that has


Relying heavily on written tests to selectfire officers is a questionable practice, tosay the least. Successful fire officers, theCity’s description of the position makesclear, must have the ‘‘[a]bility to lead per-sonnel effectively, maintain discipline, pro-mote harmony, exercise sound judgment,and cooperate with other officials.’’ CA2App. A432. These qualities are not wellmeasured by written tests. Testifying be-fore the CSB, Christopher Hornick, anexam-design expert with more than twodecades of relevant experience, was emp-hatic on this point: Leadership skills, com-mand presence, and the like ‘‘could havebeen identified and evaluated in a muchmore appropriate way.’’ Id., at A1042–A1043.

Hornick’s commonsense observation ismirrored in case law and in Title VII’sadministrative guidelines. Courts havelong criticized written firefighter pro-motion exams for being ‘‘more probative ofthe test-taker’s ability to recall what a

particular text stated on a given topic thanof his firefighting or supervisory knowl-edge and abilities.’’ Vulcan Pioneers, Inc.v. New Jersey Dept. of Civil Serv., 625F.Supp. 527, 539 (NJ 1985). A fire offi-cer’s job, courts have observed, ‘‘involvescomplex behaviors, good interpersonalskills, the ability to make decisions undertremendous pressure, and a host of otherabilities—none of which is easily measuredby a written, multiple choice test.’’ Fire-fighters Inst. for Racial Equality v. St.Louis, 616 F.2d 350, 359 (C.A.8 1980).12

Interpreting the Uniform Guidelines,EEOC and other federal agencies respon-sible for enforcing equal opportunity em-ployment laws have similarly recognizedthat, as measures of ‘‘interpersonal rela-tions’’ or ‘‘ability to function under danger(e.g., firefighters),’’ ‘‘[p]encil-and-papertests TTT generally are not close enoughapproximations of work behaviors to showcontent validity.’’ 44 Fed.Reg. 12007(1979). See also 29 CFR § 1607.15(C)(4).13

an adverse impact on minorities, the City hasan obligation pursuant to the Uniform Guide-lines to explore alternative procedures and toimplement them if they have less adverse im-pact and are substantially equally valid’’). Itis no answer to ‘‘presume’’ that the two-dec-ades-old 60/40 formula was adopted for a‘‘rational reason’’ because it ‘‘was the resultof a union-negotiated collective bargainingagreement.’’ Cf. ante, at 2667. That the par-ties may have been ‘‘rational’’ says nothingabout whether their agreed-upon selectionprocess was consistent with business necessi-ty. It is not at all unusual for agreementsnegotiated between employers and unions torun afoul of Title VII. See, e.g., Peters v. Mis-souri–Pacific R. Co., 483 F.2d 490, 497 (C.A.51973) (an employment practice ‘‘is not shield-ed [from the requirements of Title VII] by thefacts that it is the product of collective bar-gaining and meets the standards of fair repre-sentation’’).

12. See also Nash, 837 F.2d, at 1538 (‘‘theexamination did not test the one aspect of jobperformance that differentiated the job of fire-fighter engineer from fire lieutenant (combat):supervisory skills’’); Firefighters Inst. for Ra-

cial Equality v. St. Louis, 549 F.2d 506, 512(C.A.8 1977) (‘‘there is no good pen and papertest for evaluating supervisory skills’’); Bos-ton Chapter, NAACP, 504 F.2d, at 1023(‘‘[T]here is a difference between memorizingTTT fire fighting terminology and being a goodfire fighter. If the Boston Red Sox recruitedplayers on the basis of their knowledge ofbaseball history and vocabulary, the teammight acquire [players] who could not bat,pitch or catch.’’).

13. Cf. Gillespie v. Wisconsin, 771 F.2d 1035,1043 (C.A.7 1985) (courts must evaluate ‘‘thedegree to which the nature of the examinationprocedure approximates the job conditions’’).In addition to ‘‘content validity,’’ the UniformGuidelines discuss ‘‘construct validity’’ and‘‘criterion validity’’ as means by which anemployer might establish the reliability of aselection method. See 29 CFR § 1607.14(B)-(D). Content validity, however, is the onlytype of validity addressed by the parties and‘‘the only feasible type of validation in thesecircumstances.’’ Brief for Industrial–Organi-zational Psychologists as Amicus Curiae 7, n.2 (hereinafter I–O Psychologists Brief).


Given these unfavorable appraisals, it isunsurprising that most municipal employ-ers do not evaluate their fire-officer candi-dates as New Haven does. Although com-prehensive statistics are scarce, a 1996study found that nearly two-thirds of sur-veyed municipalities used assessment cen-ters (‘‘simulations of the real world ofwork’’) as part of their promotion process-es. P. Lowry, A Survey of the Assess-ment Center Process in the Public Sector,25 Public Personnel Management 307, 315(1996). That figure represented a markedincrease over the previous decade, seeibid., so the percentage today may well beeven higher. Among municipalities stillrelying in part on written exams, the medi-an weight assigned to them was 30 per-cent—half the weight given to New Ha-ven’s written exam. Id., at 309.

Testimony before the CSB indicatedthat these alternative methods were bothmore reliable and notably less discrimina-tory in operation. According to DonaldDay of the International Association ofBlack Professional Firefighters, nearbyBridgeport saw less skewed results afterswitching to a selection process that placed

primary weight on an oral exam. CA2App. A830–A832; see supra, at 2692 –2693. And Hornick described assessmentcenters as ‘‘demonstrat[ing] dramaticallyless adverse impacts’’ than written exams.CA2 App. A1040.14 Considering the prev-alence of these proven alternatives, NewHaven was poorly positioned to argue thatpromotions based on its outmoded and ex-clusionary selection process qualified as abusiness necessity. Cf. Robinson v. Loril-lard Corp., 444 F.2d 791, 798, n. 7 (C.A.41971) (‘‘It should go without saying that apractice is hardly ‘necessary’ if an alterna-tive practice better effectuates its intendedpurpose or is equally effective but lessdiscriminatory.’’).15

Ignoring the conceptual and other de-fects in New Haven’s selection process, theCourt describes the exams as ‘‘painstak-ing[ly]’’ developed to test ‘‘relevant’’ mate-rial and on that basis finds no substantialrisk of disparate-impact liability. Seeante, at 2778. Perhaps such reasoningwould have sufficed under Wards Cove,which permitted exclusionary practices aslong as they advanced an employer’s ‘‘le-

14. See also G. Thornton & D. Rupp, Assess-ment Centers in Human Resource Manage-ment 15 (2006) (‘‘Assessment centers predictfuture success, do not cause adverse impact,and are seen as fair by participants.’’); W.Cascio & H. Aguinis, Applied Psychology inHuman Resource Management 372 (6thed.2005) (‘‘research has demonstrated thatadverse impact is less of a problem in an[assessment center] as compared to an apti-tude test’’). Cf. Firefighters Inst. for RacialEquality, 549 F.2d, at 513 (recommendingassessment centers as an alternative to writ-ten exams).

15. Finding the evidence concerning these al-ternatives insufficiently developed to ‘‘createa genuine issue of fact,’’ ante, at 2680 – 2681,the Court effectively confirms that an employ-er cannot prevail under its strong-basis-in-evidence standard unless the employer deci-sively proves a disparate-impact violation

against itself. The Court’s specific argumentsare unavailing. First, the Court suggests,changing the oral/written weighting may haveviolated Title VII’s prohibition on altering testscores. Ante, at 2680. No one is arguing,however, that the results of the exams givenshould have been altered. Rather, the argu-ment is that the City could have availed itselfof a better option when it initially decidedwhat selection process to use. Second, withrespect to assessment centers, the Court iden-tifies ‘‘statements to the CSB indicat[ing] thatthe Department could not have used [them]for the 2003 examinations.’’ Ante, at 2680 –2681. The Court comes up with only a singlestatement on this subject—an offhand remarkmade by petitioner Ricci, who hardly qualifiesas an expert in testing methods. See ante, at2686. Given the large number of municipali-ties that regularly use assessment centers, it isimpossible to fathom why the City, with prop-er planning, could not have done so as well.


gitimate’’ goals. 490 U.S., at 659, 109S.Ct. 2115. But Congress repudiatedWards Cove and reinstated the ‘‘businessnecessity’’ rule attended by a ‘‘manifestrelationship’’ requirement. See Griggs,401 U.S., at 431–432, 91 S.Ct. 849. Seealso supra, at 2672. Like the chess playerwho tries to win by sweeping the oppo-nent’s pieces off the table, the Court sim-ply shuts from its sight the formidableobstacles New Haven would have faced indefending against a disparate-impact suit.See Lanning v. Southeastern Pa. Transp.Auth., 181 F.3d 478, 489 (C.A.3 1999) (‘‘Ju-dicial application of a standard focusingsolely on whether the qualities measuredby an TTT exam bear some relationship tothe job in question would impermissiblywrite out the business necessity prong ofthe Act’s chosen standard.’’).

That IOS representative Chad Legeland his team may have been diligent indesigning the exams says little about theexams’ suitability for selecting fire officers.IOS worked within the City’s constraints.Legel never discussed with the City thepropriety of the 60/40 weighting and ‘‘wasnot asked to consider the possibility of anassessment center.’’ CA2 App. A522. Seealso id., at A467. The IOS exams, Legeladmitted, had not even attempted to as-sess ‘‘command presence’’: ‘‘[Y]ou wouldprobably be better off with an assessmentcenter if you cared to measure that.’’ Id.,at A521. Cf. Boston Chapter, NAACP v.Beecher, 504 F.2d 1017, 1021–1022 (C.A.1

1974) (‘‘A test fashioned from materialspertaining to the job TTT superficially mayseem job-related. But what is at issue iswhether it demonstrably selects peoplewho will perform better the required on-the-job behaviors.’’).

In addition to the highly questionablecharacter of the exams and the neglect ofavailable alternatives, the City had otherreasons to worry about its vulnerability todisparate-impact liability. Under theCity’s ground rules, IOS was not allowedto show the exams to anyone in the NewHaven Fire Department prior to their ad-ministration. This ‘‘precluded [IOS] frombeing able to engage in [its] normal sub-ject matter expert review process’’—some-thing Legel described as ‘‘very critical.’’CA2 App. A477, A506. As a result, some ofthe exam questions were confusing or ir-relevant, and the exams may have over-tested some subject-matter areas whilemissing others. See, e.g., id., at A1034–A1035, A1051. Testimony before the CSBalso raised questions concerning unequalaccess to study materials, see id., at A857–A861, and the potential bias introduced byrelying principally on job analyses fromnonminority fire officers to develop theexams, see id., at A1063–A1064.16 See alsosupra, at 2667, 2694.

The Court criticizes New Haven for fail-ing to obtain a ‘‘technical report’’ fromIOS, which, the Court maintains, wouldhave provided ‘‘detailed information to es-

16. The I–O Psychologists Brief identifies stillother, more technical flaws in the exams thatmay well have precluded the City from pre-vailing in a disparate-impact suit. Notably,the exams were never shown to be suitablyprecise to allow strict rank ordering of candi-dates. A difference of one or two points on amultiple-choice exam should not be decisiveof an applicant’s promotion chances if thatdifference bears little relationship to the ap-plicant’s qualifications for the job. Relatedly,it appears that the line between a passing and

failing score did not accurately differentiatebetween qualified and unqualified candidates.A number of fire-officer promotional examshave been invalidated on these bases. See,e.g., Guardians Assn., 630 F.2d, at 105(‘‘When a cutoff score unrelated to job per-formance 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 issueare not appropriate for ranking candidates.’’).


tablish the validity of the exams.’’ Ante,at 2679. The record does not substantiatethis assertion. As Legel testified duringhis deposition, the technical report merelysummarized ‘‘the steps that [IOS] tookmethodologically speaking,’’ and would nothave established the exams’ reliability.CA2 App. A461. See also id., at A462 (thereport ‘‘doesn’t say anything that otherdocuments that already existed wouldn’tsay’’).

In sum, the record solidly establishesthat the City had good cause to fear dispa-rate-impact liability. Moreover, the Courtsupplies no tenable explanation why theevidence of the tests’ multiple deficienciesdoes not create at least a triable issueunder a strong-basis-in-evidence standard.

B

Concurring in the Court’s opinion, Jus-tice ALITO asserts that summary judg-ment for respondents would be impropereven if the City had good cause for itsnoncertification decision. A reasonablejury, he maintains, could have found thatrespondents were not actually motivatedby concern about disparate-impact litiga-tion, but instead sought only ‘‘to placate apolitically important [African–American]constituency.’’ Ante, at 2665. As earliernoted, I would not oppose a remand for

further proceedings fair to both sides.See supra, at 2703, n. 10. It is the Courtthat has chosen to short-circuit this litiga-tion based on its pretension that the Cityhas shown, and can show, nothing morethan a statistical disparity. See supra, at2702, n. 8, 2702 – 2703. Justice ALITOcompounds the Court’s error.

Offering a truncated synopsis of themany hours of deliberations undertaken bythe CSB, Justice ALITO finds evidencesuggesting that respondents’ stated desireto comply with Title VII was insincere, amere ‘‘pretext’’ for discrimination againstwhite firefighters. Ante, at 2683 – 2684.In support of his assertion, Justice ALITOrecounts at length the alleged machina-tions of Rev. Boise Kimber (a local politicalactivist), Mayor John DeStefano, and cer-tain members of the mayor’s staff. Seeante, at 2684 – 2687.

Most of the allegations Justice ALITOrepeats are drawn from petitioners’ state-ment of facts they deem undisputed, astatement displaying an adversarial zealnot uncommonly found in such presenta-tions.17 What cannot credibly be denied,however, is that the decision against certi-fication of the exams was made neither byKimber nor by the mayor and his staff.The relevant decision was made by the

17. Some of petitioners’ so-called facts findlittle support in the record, and many otherscan scarcely be deemed material. Petitionersallege, for example, that City officials prevent-ed New Haven’s fire chief and assistant chieffrom sharing their views about the examswith the CSB.App. to Pet. for Cert. in No. 07–1428, p. 228a. None of the materials peti-tioners cite, however, ‘‘suggests’’ that thisproposition is accurate. Cf. ante, at 2685. Inher deposition testimony, City official KarenDubois–Walton specifically denied that she orher colleagues directed the chief and assistantchief not to appear. App. to Pet. for Cert. inNo. 07–1428, p. 850a. Moreover, contrary tothe insinuations of petitioners and Justice AL-ITO, the statements made by City officials

before the CSB did not emphasize allegationsof cheating by test takers. Cf. ante, at 2686 –2687. In her deposition, Dubois–Walton ac-knowledged sharing the cheating allegationsnot with the CSB, but with a different Citycommission. App. to Pet. for Cert. in No. 07–1428, p. 837a. Justice ALITO also reportsthat the City’s attorney advised the mayor’steam that the way to convince the CSB not tocertify was ‘‘to focus on something other than‘a big discussion re: adverse impact’ law.’’Ante, at 2686 – 2687 (quoting App. to Pet. forCert. in No. 07–1428, p. 458a). This is amisleading abbreviation of the attorney’s ad-vice. Focusing on the exams’ defects and ondisparate-impact law is precisely what he rec-ommended. See id., at 458a–459a.


CSB, an unelected, politically insulatedbody. It is striking that Justice ALITO’sconcurrence says hardly a word about theCSB itself, perhaps because there is scantevidence that its motivation was anythingother than to comply with Title VII’s dis-parate-impact provision. Notably, peti-tioners did not even seek to take deposi-tions of the two commissioners who votedagainst certification. Both submitted un-contested affidavits declaring unequivocal-ly that their votes were ‘‘based solely on[their] good faith belief that certification’’would have discriminated against minoritycandidates in violation of federal law. CA2App. A1605, A1611.

Justice ALITO discounts these swornstatements, suggesting that the CSB’s de-liberations were tainted by the preferencesof Kimber and City officials, whether ornot the CSB itself was aware of the taint.Kimber and City officials, Justice ALITOspeculates, decided early on to oppose cer-tification and then ‘‘engineered’’ a skewedpresentation to the CSB to achieve theirpreferred outcome. Ante, at 2683.

As an initial matter, Justice ALITO ex-aggerates the influence of these actors.The CSB, the record reveals, designed andconducted an inclusive decisionmaking pro-cess, in which it heard from numerousindividuals on both sides of the certifica-tion question. See, e.g., CA2 App. A1090.Kimber and others no doubt used strongwords to urge the CSB not to certify theexam results, but the CSB received ‘‘pres-sure’’ from supporters of certification aswell as opponents. Cf. ante, at 2686. Peti-

tioners, for example, engaged counsel tospeak on their behalf before the CSB.Their counsel did not mince words: ‘‘[I]fyou discard these results,’’ she warned,‘‘you will get sued. You will force thetaxpayers of the city of New Haven intoprotracted litigation.’’ CA2 App. A816.See also id., at A788.

The local firefighters union—an organi-zation required by law to represent all theCity’s firefighters—was similarly outspo-ken in favor of certification. Discardingthe test results, the union’s president toldthe CSB, would be ‘‘totally ridiculous.’’Id., at A806. He insisted, inaccurately, thatthe City was not at risk of disparate-impact liability because the exams wereadministered pursuant to ‘‘a collective bar-gaining agreement.’’ Id., at A1137. Cf.supra, at 2703 – 2704, n. 11. Never men-tioned by Justice ALITO in his attempt toshow testing expert Christopher Hornick’salliance with the City, ante, at 2684, theCSB solicited Hornick’s testimony at theunion’s suggestion, not the City’s. CA2App. A1128. Hornick’s cogent testimonyraised substantial doubts about the exams’reliability. See supra, at 2686 – 2687.18

There is scant cause to suspect thatmaneuvering or overheated rhetoric, fromeither side, prevented the CSB from even-handedly assessing the reliability of theexams and rendering an independent,good-faith decision on certification. Jus-tice ALITO acknowledges that the CSBhad little patience for Kimber’s antics.

18. City officials, Justice ALITO reports, sentHornick newspaper accounts and other mate-rial about the exams prior to his testimony.Ante, at 2686. Some of these materials, Jus-tice ALITO intimates, may have given Hor-nick an inaccurate portrait of the exams. ButHornick’s testimony before the CSB, viewedin full, indicates that Hornick had an accurateunderstanding of the exam process. Much of

Hornick’s analysis focused on the 60/40weighting of the written and oral exams,something that neither the Court nor the con-currences even attempt to defend. It is,moreover, entirely misleading to say that theCity later hired union-proposed Hornick as a‘‘rewar[d]’’ for his testimony. Cf. Ante, at2687.


Ante, at 2685 – 2686.19 As to petitioners,Chairman Segaloff—who voted to certifythe exam results—dismissed the threatsmade by their counsel as unhelpful andneedlessly ‘‘inflammatory.’’ CA2 App.A821. Regarding the views expressed byCity officials, the CSB made clear thatthey were entitled to no special weight.Id., at A1080.20

In any event, Justice ALITO’s analysiscontains a more fundamental flaw: Itequates political considerations with un-lawful discrimination. As Justice ALITOsees it, if the mayor and his staff weremotivated by their desire ‘‘to placate a TTT

racial constituency,’’ ante, at 2684, thenthey engaged in unlawful discriminationagainst petitioners. But Justice ALITOfails to ask a vital question: ‘‘[P]lacate’’how? That political officials would havepolitics in mind is hardly extraordinary,and there are many ways in which a politi-cian can attempt to win over a constituen-cy—including a racial constituency—with-out engaging in unlawful discrimination.As courts have recognized, ‘‘[p]oliticiansroutinely respond to bad press TTT, but itis not a violation of Title VII to takeadvantage of a situation to gain politicalfavor.’’ Henry v. Jones, 507 F.3d 558, 567(C.A.7 2007).

The real issue, then, is not whether themayor and his staff were politically moti-vated; it is whether their attempt to scorepolitical points was legitimate (i.e., nondis-criminatory). Were they seeking to ex-clude white firefighters from promotion

(unlikely, as a fair test would undoubtedlyresult in the addition of white firefightersto the officer ranks), or did they realize, atleast belatedly, that their tests could betoppled in a disparate-impact suit? In thelatter case, there is no disparate-treatmentviolation. Justice ALITO, I recognize,would disagree. In his view, an employ-er’s action to avoid Title VII disparate-impact liability qualifies as a presumptive-ly improper race-based employment deci-sion. See ante, at 2683. I reject thatconstruction of Title VII. See supra, at2699 – 2700. As I see it, when employersendeavor to avoid exposure to disparate-impact liability, they do not thereby en-counter liability for disparate treatment.

Applying this understanding of TitleVII, supported by Griggs and the long lineof decisions following Griggs, see supra, at2697 – 2698, and nn. 3–4, the DistrictCourt found no genuine dispute of materi-al fact. That court noted, particularly, theguidance furnished by Second Circuitprecedent. See supra, at 2688 – 2689.Petitioners’ allegations that City officialstook account of politics, the District Courtdetermined, simply ‘‘d[id] not suffice’’ tocreate an inference of unlawful discrimina-tion. 554 F.Supp.2d, at 160, n. 12. Thenoncertification decision, even if undertak-en ‘‘in a political context,’’ reflected a legit-imate ‘‘intent not to implement a pro-motional process based on testing resultsthat had an adverse impact.’’ Id., at 158,160. Indeed, the District Court perceived

19. To be clear, the Board of Fire Commission-ers on which Kimber served is an entity sepa-rate from the CSB. Kimber was not a memberof the CSB. Kimber, Justice ALITO states,requested a private meeting with the CSB.Ante, at 2685. There is not a shred of evidencethat a private meeting with Kimber or anyoneelse took place.

20. Justice ALITO points to evidence that themayor had decided not to make promotions

based on the exams even if the CSB voted tocertify the results, going so far as to prepare apress release to that effect. Ante, at 2687. Ifanything, this evidence reinforces the conclu-sion that the CSB—which made the noncerti-fication decision—remained independent andabove the political fray. The mayor and hisstaff needed a contingency plan precisely be-cause they did not control the CSB.


‘‘a total absence of any evidence of dis-criminatory animus towards [petitioners].’’Id., at 158. See also id., at 162 (‘‘Nothingin the record in this case suggests that theCity defendants or CSB acted ‘because of’discriminatory animus toward [petitioners]or other non-minority applicants for pro-motion.’’). Perhaps the District Courtcould have been more expansive in itsdiscussion of these issues, but its conclu-sions appear entirely consistent with therecord before it.21

It is indeed regrettable that the City’snoncertification decision would have re-quired all candidates to go through anoth-er selection process. But it would havebeen more regrettable to rely on flawedexams to shut out candidates who may wellhave the command presence and otherqualities needed to excel as fire officers.Yet that is the choice the Court makestoday. It is a choice that breaks thepromise of Griggs that groups long deniedequal opportunity would not be held backby tests ‘‘fair in form, but discriminatoryin operation.’’ 401 U.S., at 431, 91 S.Ct.849.

* * *

This case presents an unfortunate situa-tion, one New Haven might well haveavoided had it utilized a better selectionprocess in the first place. But what this

case does not present is race-based dis-crimination in violation of Title VII. I dis-sent from the Court’s judgment, whichrests on the false premise that respon-dents showed ‘‘a significant statistical dis-parity,’’ but ‘‘nothing more.’’ See ante, at2677 – 2678.

,

Andrew M. CUOMO, Attorney Generalof New York, Petitioner,

v.

THE CLEARING HOUSEASSOCIATION, L.L.C.,

et al.No. 08–453.

Argued April 28, 2009.

Decided June 29, 2009.

Background: Office of the Comptrollerof the Currency (OCC) and bankingtrade group filed suits, seeking to enjoinNew York Attorney General from seek-ing non-public information from severalnational banks about their lending prac-tices in order to determine whetherbanks had violated State’s fair-lendinglaws, and claiming that OCC regulation

21. The District Court, Justice ALITO writes,‘‘all but conceded that a jury could find thatthe City’s asserted justification was pretextu-al’’ by ‘‘admitt[ing] that ‘a jury could rational-ly infer that city officials worked behind thescenes to sabotage the promotional examina-tions because they knew that, were the examscertified, the Mayor would incur the wrath of[Rev. Boise] Kimber and other influentialleaders of New Haven’s African–Americancommunity.’ ’’ Ante, at 2696, 2689 (quoting554 F.Supp.2d, at 162). The District Courtdrew the quoted passage from petitioners’lower court brief, and used it in reference toa First Amendment claim not before this

Court. In any event, it is not apparent whythese alleged political maneuvers suggest anintent to discriminate against petitioners.That City officials may have wanted to pleasepolitical supporters is entirely consistent withtheir stated desire to avoid a disparate-impactviolation. Cf. Ashcroft v. Iqbal, 556 U.S.––––, ––––, 129 S.Ct. 1937, 1951–1952, 173L.Ed.2d 868 (2009) (allegations that seniorGovernment officials condoned the arrest anddetention of thousands of Arab Muslim menfollowing the September 11 attacks failed toestablish even a ‘‘plausible inference’’ of un-lawful discrimination sufficient to survive amotion to dismiss).

Ricci v. DeStefano, 557 U.S. 557

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Transcript of Ricci v. DeStefano, 557 U.S. 557