We have all heard that where there is smoke, there is usually fire. Well, the smoke coming out of Ricci v. Destefano, the now-famous Sotomayor firefighter case, is enough to suffocate an entire town. Judge Sotomayor’s Second Circuit “non-opinion” has certainly ignited a firestorm, and a closer look at the facts shows us why.
The issue in the case is simple: Does Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution allow the state to reject the results of a civil service, racial-neutral promotion selection process because it does not like the racial distribution of the outcome?
The facts are these: The City of New Haven issued a Request for Proposal for two examinations, one written and one oral, to determine Captain and Lieutenant promotions within the New Haven Fire Department. After close examination of several proposals, I/O Solutions, a company specializing in entry-level and promotional examinations for public safety departments, won the bid to design the racial-neutral tests. Under the collective bargaining agreement between the city and the firefighter’s union, the written exam counted for 60 percent of the final score and the oral exam for 40 percent. A total score of 70 percent was required to be eligible for promotion. Furthermore, the “Rule of Three” of the City Charter required the department to fill the positions from among the top three eligible candidates.
Forty-one firefighters took the Captain exam: 25 white, eight black, and eight Hispanic. Twenty-two passed: 16 white, three black, and three Hispanic. There were seven Captain vacancies and the top nine scores included seven whites and two Hispanics.
Seventy-seven firefighters took the Lieutenant exam: 43 white, 19 black, and 15 Hispanics. Thirty-four passed: 25 white, six black and three Hispanics. There were eight vacancies, and the top 10 scorers were white.
As a result of the low number of African-Americans eligible for promotion, the New Haven Civil Service Board refused to certify the results of the two promotional exams. Not surprisingly, of those eligible for promotion, seventeen white candidates and one Hispanic brought this suit, arguing the department denied them promotions solely based on race, as prohibited by law.
The District Court issued a summary judgment ruling against the firefighters, buying the argument that the fact that the department was trying to comply with the letter and spirit of Title VII somehow made the practice non-discriminatory.