Academic journal article Duke Journal of Gender Law & Policy

Title VII, Voluntary Compliance and Ricci: Rescuing Municipalities from a Legal 'Backdraft'

Academic journal article Duke Journal of Gender Law & Policy

Title VII, Voluntary Compliance and Ricci: Rescuing Municipalities from a Legal 'Backdraft'

Article excerpt

The Supreme Court recently decided Ricci v. DeStefano, a case that had municipalities throughout the United States holding their breath. This case presents a scenario where either action by a municipal employer would result in potential liability under Title VII. Thus, the policy goal of Title VII--encouraging the voluntary compliance of employers by relaxing standards for liability when these attempts are made in good faith--is in danger of being undermined. This note examines both sides of this issue in light of the policy goals of Title VII. The note then delves into the background of the case, analyzes the legal claims made by both parties, and then analyzes the Supreme Court's ruling, possible outcomes of this case and the potential impact of these outcomes on similar future situations. Finally, the article asks whether the Court is able to find an appropriate middle-ground and how the Court's new standard will be affect future litigation.


Frank Ricci, a New Haven firefighter, spent months in preparation for a promotional exam. (1) In addition to countless hours of study, he incurred additional personal costs to buy supplements and pay a friend to transcribe them to audio cassette in order to cope with his dyslexia. (2) The results of the exam put Ricci in position for a promotion, but the overall results were regarded as troublesome by the City of New Haven and the New Haven Civil Service Board (CSB) because of the racially disproportionate results. (3) The CSB and the City of New Haven found themselves wedged between the proverbial "rock and a hard place." Voting to certify the results would make them vulnerable to a claim from minority applicants. However, refusing to certify the test results could potentially create a reverse discrimination claim from the successful applicants whose test results were nullified. (4)

The issue in Ricci v. DeStefano is whether municipalities are subject to reverse discrimination claims under Title VII by refusing to certify test results with an adverse impact on employees of a protected class. (5) This note begins by providing a brief background of employment discrimination law and the policy behind Title VII. Next, this note discusses the background of the case in the context of employment law and Title VII. After analyzing the case, this note will introduce the legal issues that are implicated and assess the validity of each claim. Then, the final section examines analyzes the Supreme Court's rulings and how the ruling will affect how lower courts treat similar situations in the future.


This section gives a brief background in employment discrimination law and addresses the legal mechanisms of Title VII that are necessary to understand the intricacies of the Ricci case. The important social policies behind Title VII will be analyzed as they relate to this case and to employment discrimination in general.

A. The Law

The 1960's instituted sweeping change in society as well as in the field of employment law, highlighted by the passage of the Civil Rights Act of 1964. (6) A key provision of the act is Title VII, which grants protection to employees from certain employment actions based on their status, such as race, sex, color, religion, or national origin. (7) For example, an employer violates Title VII by refusing to hire an applicant because of the applicant's race. Proscribing employment actions based on an employee's status forces employers to consider the individual's merits for the specific job and prohibits treatment based on conscious or unconscious stereotypes about their membership in a protected class. (8)

Two ways that Title VII protects employees is by prohibiting disparate treatment and disparate impact. Disparate treatment occurs where an "employer simply treats some people less favorably than others because of their race, religion, sex, or national origin. …

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