1 (Slip Opin i o n) OCTOBER T ERM, 20 08 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s yllab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s yll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES
Sy llabu s RICCI ET AL
. v . D E STEFANO ET AL
. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECON D CIRCUIT No. 07–1 42 8. Ar g u ed Apr i l 22, 200 9—Dec i ded Ju n e29, 2009 * New Haven, C o nn. (City), us es obj e ct ive examinat ions to identify thos e

firefighters best qu alifiedfor promot ion. When the results of such an ex am to fil l v a c a n tlieu t e n an t an d c a p t ainpos i tion s sh owed th at white candidates had outperformed m i norit yca ndida t es , ara nco r ous publicdebate en su ed. Con f r o n t ed with ar g u men t s bothforan d ag ain s t c e r t if y i n gth e test r e su lts—an d t h r e ats of a la wsu i t eith er way
—the Citythr e w out the r e sults b a s e d on t h e s t a t is t i ca l ra cial dispar i t y . Petition er s, w h ite an d Hispan icfir e figh ter s w h o passed th e ex ams bu twer eden i ed a c h an c e at promotions by the City’s re

fu sal to c e r t ifyth e test r e su lt s, su ed th e Cit yan d r e spon den toffic i als , allegi ngthat disc ar dingthe test r e sults d i sc r i minated a g ainst them based on thei r race in violation of, inter alia, Title VI I of the Civil Righ ts Ac tof 196 4. Th e def e n d an ts r e spo n ded th at h a d th eyc e r t ified the test r e sult s, theyc o uld hav efac e d Title VII li abil i tyforadopting a pr ac tic eh avin ga dispar at e impac tonmin o r i tyfir e figh ter s . Th e Dis t rictCourtgra n t e d s u m m a r y j u dg ment forthe defendants, and the Second Circuit affirmed. Held: The City ’ s ac tion in disc ar ding the tests vio l ated Ti tle VI I.

Pp. 16–3 4.

(a) Title VII p r ohibits inten t iona l acts of employment d i scrimina

t i on b a s ed on ra ce, color , rel i gion, s e x , an d n a tion al or igin , 42 U. S. C. §200 0e– 2 (a)(1) (dispar a te tr e a tmen t), as well as polic ies orpr ac tic e s that ar e not i n tended to di sc r i minate but in fac thav ea d i spr o por tion atelyadv e r s e effec ton min o r i ties, §2 000e–2(k)(1)(A)(i) (dispar a te impac t). On c ea plain t iff h a s establi s h e d a pr ima fac i e c a se of dispa

-

——————

* Tog e th erwithNo. 08–32 8, Ricci et al. v. DeStefano et al., also on cert iora ri t ot h e s a m ecourt

.2 RICCI v. D E STEFANO Sy llabu s

r a te im pac t , the employ ermaydefend bydemonstr a t ingthat it s policy or practi ce is “jo b rela ted fo r the position in question and con

sisten t w i thb u sin e ss n e c e ssity

. ” Ibid. I f the employer meets that burden, the pl aintiff may sti ll succ eed by showing that the employer r e fu ses to ado p t anav ail abl e alter n ativ e pr ac tic eth at h a s les s disp a r a te impac ta n d serv es th e employ er ’ s legi tima te n eeds. §§2000e– 2(k)(1)(A)(ii) a n d (C). Pp. 17–19.

(b) Under Title VII, before an em ployer can engage in intentional dis crim i na t i onfor t h e a s s e rt ed purp ose of avoiding or re medying an u n i n t en tion al, dispar ate i m pac t , th e employer must have a strong bas is in evidence to believeit w ill be subject to dispara t e-impact li

abil i tyif it f a ils to take th e r a c e -c onsc ious, disc r i mina tor yac tion. The Cour t’ s analy s is begi ns with the pr emise th at the City ’ s ac tion s would violate Title VII’s di sparate- tr ea tm ent pr ohibit io nabsen tsome valid defense. All the evidence de monstr ates that the Cityr ejec t ed th e test r e su l t s bec a u s e the higher scori n g candidates were white. Without some otherjustific ation, th is express, race-based decision

making is prohibited. The questi on, therefore, is whether thepur pose to av oid dispar a t e-imp a c t li abi l i ty excuses what otherwise woul d be pr ohibiteddisp ar ate-tr e a tment disc r i mination. T h e Cour t has considered cases si mil a r to the pres ent liti g ation, but inthe context of the Fourtee n th Amendment’s Equa l Protection Clause

. Such cases can provide helpful guidance in this statutory context. See Watsonv. Fort Worth Ba nk& Trust , 487 U. S. 97 7, 99 3. Inth os e c a ses, th e Cour t held that c e r t ain g o v e rnment ac tions to r e medypast r a c i al dis

c r i mination—ac t ions that a r e themse lves based on race—are consti

tutional only where the r e is a “strong bas is in evidence” that the re

m e dia la c tions were ne ces s a ry. Ri chmondv. J. A. Croson Co. , 488 U. S. 469, 500 ; see al so Wygantv. Jack so nBd. of Ed. , 476 U. S. 26 7 , 277. Inan n o u n c ingth e str o n g -basis-in

- e v iden c estan dar d , th e Wy

gantplurality reco gnized th e tens ion between eliminating segrega

tion and discrimination on the one ha nd a n d doing a w a ywit ha ll gov

er nmentallyimposed d i sc r i mination bas e don race on the other. 476 U. S., at 277. It r e ason ed th at “[e]v i den t i a r ysu ppor tforth e c o n c lu

s i on t h a trem e dia la c t i on is wa rra nt ed b e com e s cru cia lwhen t h ere medial program is challenged in co urt b yno nminority employees. ” Ibid. Th e same in ter e sts a r e at w o r kin the inter p laybetween Title VII’s disp arat e-treatment and dispar ate- i m pact provisi o ns. Apply

ing t h e s t rong -b a s is -in-evidence s t a n da rd t oTit l e VII gives effectt o both provisions, allowing violationsof one in the name of compliance wit ht h e ot heronly i nce rt a i n, na rrowcir c u m s t a nces . Ita l s oa llow s the disp arate- impactprohib ition to work in a m a nner that is consis

tent with otherTitle VII pr ov isions , including the prohib ition on ad

justing emplo y ment-relatedtest sc ores based on race, see §2000e–3 Cite as: 55 7 U

. S. ____ (2009) Sy llabu s 2( l), and the section that ex pressly pr otects bona fide promotionalex ams, see § 200 0e–2(h)

. Th u s , th e Cou r t adopts th e str o n g -basis-in

ev iden c estan dar das a m a tterof st atuto r yc o nstr uc tion in or derto resolve any co nflict between Title VII’s di sparate- treatment and di s par a te-im p ac t pr ov ision s . Pp. 19–26.

(c) The Cit y ’s ra ce-b a s ed reject ion of t h e tes tres u lts cannots a t i s f y th e str o n g -basis-in

- ev iden c e stan dar d

. Pp. 26– 34. (i) The ra cia la dvers e im pactinthis l i ti g a tion was si g n ific ant, and petit i oners do not d i spu t e thatthe Ci tywas fac e d with a pr im a facie case of disparate-imp a ct liabi lity. The problem for respondents is th at su c ha pr ima fac i e c a se—esse nt iall y, a threshold showing of a significant st a t ist i cal di spar ity, Connecti c utv. Te al , 457 U. S. 44 0, 446, an d n o th in gmor e—is farfr om a str o n gbasis inev iden c eth at the City would have been liable und er Title VII hadit certified th e test r e su lt s. Th at is bec a u s e th e Cityc o u l d be liable f o rdispar ate

impact di scrimination only if the ex ams a tissu e w e r en o t job r e la te d and c o nsistentwith business nec e ssity , orif ther e ex isted an equall y v a lid, less d i sc r i minator yalt e r n ativ e that serv ed the City ’ s needs but that the C i tyr e fused to adop t. §§ 2000e–2(k)(1)(A), (C). Based on th e record t h e pa rt ies developed t h rough dis c overy , t h ere is no s ub s ta n tial bas is in e v idenc ethat the testwas d e ficient in either respect. Pp. 26–2 8. (ii) The City’s assertion s tha t the exams at issue were not jo b re

lated an d c o n s isten twith bu sin e ss n e c e ssity ar e bla t an tlyc o n t r a dic t ed bythe r e c o r d , whi c h demonstr ate s the detailed s t eps taken to dev e lop an d admin i sterth e test s an d th e pain st akin gan aly s es of th e questions a s k e d to assur etheirr e le va nceto the ca pta i n a n d lieuten

an t pos i tion s. Th e test imon yalso sh ow s t h at c o mpla in t s th a tc e r t ain examination questions were contradi ctory or did not specifically ap

plyto fir e figh t i ngpr ac tic e s i nthe City wer efully addressed, and that the City turned a blind eye to ev idence supporting the exams’ valid

ity

. Pp. 28–29

. (iii) Responde nts also lack ast rong basis i nevidence showing an equallyv a lid, less di sc r i minator ytestingalter n ativ e thatthe City , by cert ifying t h e t e s tres u lts , would neces s a rily have ref u s e d t oa d opt. Res p ondent s ’ t h ree a r gu m e nt s t ot h e con t ra ry a ll fa il. Firs t , res p on dents r e ferto tes t imonyth at a di fferent composite-scor e calculation would have a llowed the City to co nsider black candidates for then

open positions, but they have produc ed noevidence to show that the c a n d idate weigh t in gac tu allyu s ed was indeed arbitr ar y , or th at th e different weighting would b ea n equall y valid way to determine wh eth e rc a n didate s ar e qu alified for promotions. Sec o nd, respon

dents ar g u e t h at the C i tyc o uld hav eado p ted adiffer e nt inter p r e ta

tion of it s charter provision li mitingpromotions to the highest scoring4 RICCI v. D E STEFANO Sy llabu s applic ant s , an d thatthe inte r p r e tation would hav epr oduc ed less dis

crim i na t o ry res u lt s ; b u tres p ondent s ’ a p proa ch would have viola t ed Title VII’s p r ohibition of race-based ad justment of test results, §200 0e– 2 ( l). Th ir d, testimo n yasser t in gth at th e u s e of anassess ment center to eva l ua te candida t es’ behavior in typic a l job tasks would have ha d less a dvers e impa ctth an wr ittenex ams does n o tai d res p ondent s , a s itis cont radict ed b yot her s t a t em ents in t h e re cord indic a tingthat the Cityc o uld not hav eused as sess me nt c e nter s for the exams at i ssue. Especial ly whenit is noted tha tthe s t r o ng -basis

in-evidence s t a n da rd a pplies t o t h is cas e , res p ondent s ca nnotcrea t e a genuine is s u e of fa ctb a s e d on afew s t ra y (a nd cont ra dict ory) s t a t e men t s inth e rec o r d

. Pp. 29–33. (iv) Fear of litigation alone ca nnot justify the City’s reliance on r a c eto the det r iment of indi v i du als who passedthe examinations and qualified for p r omotions. Discardi n gth e test r e su lts w a s imper m i s sible under Title VII, and su mmary judgment is appropriate for peti

tioners on the i r disparate-tr eatment cla i m. If , a f t e r it cert ifies t h e testr e su lts, t h e Cityfac e s a di spar a t e-i m pac t su it, th eninligh tof today’s holdin g the City canavoid d i sp ara t e-impactli abi lity b a sedon the strong basis in evidence that, ha d it not certified the results, it would hav ebeen subject to dispar a t e-treat m ent liab ility

. Pp. 33–34. 530 F. 3d 87, r e v e r s ed an d r e man d ed.

K ENNEDY , J., delivered the opinion of theCourt, in which R OBERTS , C.J., and S CALIA , T HOMAS , an d ALITO , JJ. , join ed. S CALIA , J., filed a conc urri ng op inion. ALITO , J., filed a concurring opinion, in which S CALIA an d T HOMAS , JJ., joined. G IN SB U R G , J., filed a dissenting opin

ion, in which S TEVENS , S OUTER , and B REYER , JJ., joined._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O FTHE UNI TED STATES

Nos. 07– 14 28 an d 08– 328 FRAN K RI CCI, ET AL ., PETITIONERS 07–1428 v. JOHN D E STEFANO ET AL
. FRAN K RI CCI, ET AL ., PETITIONERS 08–328 v. JOHN D E STEFANO ET AL
. ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Ju n e29, 2009 ] J USTICE K E NNEDY delivered the opinion of the Court. In the fire departmentof New Ha ven, Connecticut—as in emergen c y-service agencies throughout the Nation

— firefighters prize their promot ion to and within the officer ranks. An agency’s officers command respect within the departmentand in the whole community; an d, of course , added resp onsibilities command increased salary and benefits. Aw are of the intense com p etition for promotions, New H aven, lik e manycities, rel i e s on objective examina

tions to identify the best qualified candidates. In 2003, 118 New Ha ven firefighters took examinations to qualify for promotion to the ra nk of lieutenant or cap

tain. Promotion exa m inations in New Ha ven (or City) were infrequent, so th e stakes were high. The results would dete rmine whic h firefighte rs would b econsidered for promotions during the next two years, and the order in which they would be considered

. Many firefighters stud

-2 RICCI v. D E STEFANO Opinion of theCourt ied for mon t hs, at considerable personal and financial cost. When the examination result s showed that white candi

dates had outperformed minority can d idates, the may o r and other local politicians opened a public debate th at turned ran c orous. Some firefigh ters argu ed the tests should be di scarded because the r e sults sh owed the tests to be discriminatory. They threa t ened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the ex ams were neutral and fair. And they, in turn, thr e atened a discrimination lawsuitif the City, relying on the statistical racial disparity, ignored the test res u lts and denied promotions to the candidates who had performed well. In the en d the City tookthe side of those who protested the test results. It threw out the examinations. Certain white and Hispanic firefighters who likely would have been promoted based on their good test per

formance sued the City and some of its officials. Theirs is the suit now before us

. The suit alleges that , by discard

ing the test results, the City and the named officials dis

criminated against the plaintiffs based on their race, in violation of both Title VII of the Civil Rights Act of 19 64, 78 Stat. 25 3, as amended, 42 U. S. C. §2000e et s e q. , a n d the Equal Protection Clause of the Fourteenth Amend

ment. The City and t h e officials defended their actions, arguing th at if they h a d certifiedthe results, they coul d have faced liability un der Title VII for adopting a practice that had a disparate impact on the minority firefighters. The District Court granted summary ju dgment for the defendants, and the Court of Appe als affirmed. We conclude that race- based action like the City’s in this case is impermissible under Title VII unless the employer can demons trate a strong basis in evidence that, had it n o t taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold stan dard. As a3 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt result, the City ’s ac tion in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not reach the question whether respon

dents’ actio n s may have violated the Equal Protection Clause. I This litigation comes to us after the parties’ cross

motions for summary judgment, s owe set out the facts in some detail. As the DistrictCo urt noted, although “t he parties strenuously dis p ute the relevance and legal import of, and inferences to be drawn fro m , many aspects of this case, the underlying f a cts are la rgely undis puted.” 55 4 F. Supp. 2d 142, 145 (Conn. 2006). A When the City of New Haven undertook to fill vacant lieutenant and captai n positions in its fire department (Department), the promotion and hiring process was go v erned by the city chart e r, in addition to federal and state law. The charter establishes a merit system. That system requires the City to fi ll vacancies in the classified civil

service ranks with the most qualified individ uals, as de

termined by job-related examinations. After each exam i

nation, the New Ha ven Civil Se rvice Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “r ule of three,” the relevant hiring authority must fill ea ch vacancy by choosing one candid ate from the top three scorers on the list. Certified promotional l i s ts remain valid for two ye ars. The City’s contract wi th the New Ha ven firefighters ’ union specifies additional requirements for the promotion process. Under the co ntract, a ppl icants for lieutenant and captain positions were to be screened usingwritten an d oral examinations, with the wri t ten exam accounting for 60 percent and the oral exam 40 percent of an applicant’s4 RICCI v. D E STEFANO Opinion of theCourt total score. To sit for the examinations, ca ndidates for lieutenant needed 30 months’ experience inthe Depart

ment, a high -school dip l oma, and c e rtain vocational train

ing courses. Candida t es for captain needed one year’s service as a lieutenan t in the Department, a high-school diploma, and certain vo ca tional training courses. After revie w ing bids f r om various consultants, the City hired Industrial/Orga n izational Solutions, Inc. (IOS) to develop an d administer the examinations, at a cost to the City of $100,000. IOS is an Illin ois company that special

izes in des i gning entry-level and promotional examina

tions for fire and police departments. In order to fit the examinations to the New Ha ven Departmen t, IOS bega n the test-design proces s by perfo r ming job analyses to identify the tasks, kno w ledge, skills, and abili ties that are essential f o r the lieut enant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They ro de withand observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and a d ministered them to most of the incumbent battalion chiefs, capta i ns, and lieutenants in the Department. At e v ery stage of the job a nalyses, IO S, by deliberate choice, oversampled minority fi refighters t o ensure that the results—which I O S would us e to develop the examinations—would not uni ntentionally favor white candidates. With the jo b-analysis information in hand, I O S devel

oped the written examinations to measure the candidates’ job-related knowledge. For ea ch test, IOS compiled a list of training manuals, Departmen t pro c edures, and othe r materials to use as sources for t h e test questions. IOS presented the proposed sources to the New H aven fire chief and assistant fire chief for their approval. Then, using the a pproved sources, IOS drafted a multiple-choice test for each position. Each test had 100 questions, as5 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt required by CSB rules, and was written below a 10th

grade reading level. After IOS pre p ared the tests, the City opened a 3- month study period. It gave candidates a list that identified the source material for the questions, in

cluding the specific chapters from which the questions were taken. IOS develo ped the oral examinations as well. These concentrate d on job skills and abilities. U s ing the job

analysis information, IOS wrote h y pothetical situations to test incident-command skills, fi refi ghting tacti cs, interper

sonal skills , leadershi p , and management ability, amon g other things. Candidates would be presented with these hypothetica l s and aske d to respon d before a panel of three assessors. IOS assembled a pool of 30 asses s ors who were superior in rank to t h e positions being test ed. Atthe City’s insis

tence (because of controversy surrounding previous ex

aminations) , all the assessors came from outsi d e Connecti

cut. IOS su bmitted the assesso rs’ r e sumes to City officials for approva l

. They we re battalion chiefs, assistant chiefs, and chiefs from departments o f sim i l a r s i ze s toNe w Ha

ven’s throu ghout the country. S i xty-six per c ent of the panelists were minorities, and each of the nine three

member as sessment p anels conta i ned two minority mem

bers. IOS trained the panelists for several hours on the day before it admini stered the examinations, teaching them how to score the candidates’ responses consistently using checklists of desired criteria. Candidates tookthe exam inations in November and December 2003. Seventy-seve n ca ndidates completed th e lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. 554 F. Supp. 2d, at 145. Eight lieutenant positions w e re vacant at the time of the exam i

nation. As the rule of three operated, this meant that th e top 10 candidates were eligible for an immediate promo

-6 RICCI v. D E STEFANO Opinion of theCourt tion to lieutenant. All10 were white. Ibid. Subsequent vacancies would have allowed at least 3 black candidates to be consid ered for promotion to lieutenant. Forty-one candidates completed the captain examina

tion—25 whites, 8 bla c ks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics. Ibid. Seve n captain p o sitions were vacanta tthe time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain

— 7 whites and 2 Hispanics. Ibid. B The City ’s contractwi th IOS con t emplated t hat, after the examinations, IOS would prepare a technical report that descri bed the examination processes an d methodolo

gies and analyzed th e results. But in J anuary 20 04, rather thanrequesting the technic a l report, C i ty officials, including the City’s counsel, Th omas Ude, convened a meeting with IOS Vice President Chad Legel. (Legel was the leader of the IOS team that developed and adminis

tered the tests.) Based on the test results, the City offi

cials expressed concern that the tests had discriminated against minority candidates. Legeldefended the examina

tions’ validity, stating thatany numerical disparity b e tween white and minority candidates was lik ely due to various ext e rnal factor s and was i nline with results of the Departmen t’s previous promotional examinations. Several day s after the meeting, Ude sent a letter to the CSB pu rpo rting to outline its duties with respect to the examination results. Ude stated that under federal la w, “a statistical demonstration of disparate impact,” standing alone, “constitutes a sufficiently serious claim of racial discrimination to s e rve as a p r edicate for employer

initiated, voluntar[y] remedies—even .

. . race-conscious remedies.” App. to Pet. for Cert. i nNo. 07–1428, p. 443a; see also 55 4 F. Supp. 2d, at 145 (issue of dis p arate impact7 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt “appears to have been raised by . . . Ude”). 1 The CSBfirst met to consider certifying the results o n January 22 , 2004. Tina Burgett, director of the City’s Department of H u man Resources, opened themeeting by telling the CSB that “there is as i gnificant disparate im

pact on these two exams.” App. t oPet. for Cert. in No. 07– 1428, at 466a. She distributed lists showing the candi

dates’ ra ces and scores (writ t en, oral, and co mposite) but not their names. Ude also described the test results as reflecting “a very significant disparate impact,” id. , at 477a, and he outlinedpossible grounds for the CSB’s refusing to certify the r e sults. Although they did not k n ow whet her they ha d passed o r failed, some firefighter-candidate s spoke at the first C S B meeting in favor of c e rtifying th e test results. Michael Blatchley stated that “[e]very one” of the ques t ions on the written exa m ination “came from the [study] material. .

. . [I]f you read the materials and you studied the material, you would have done well on the test.” App. in No. 06

– 4996–cv (CA2), pp. A772–A773 (hereinafter CA2 App. ). Frank Riccistated that the te st questions were based on the Department’s ownrules and procedures and on “na

tionally recognized” materials that represented the “ac

cepted stan dard[s]” for firefighting. Id. , at A785–A786. Ricci state dthat he had “sev eral learning disabilities,” including dyslexia; that he had spent more than $1,000 to purchase the materials and pay his neighbor t oread them on tape s o he could “give it [his] best shot”; and that he had studied “8 to 13 h o urs a day to prepare” for the test. Id. , at A78 6 , A789. “I don’t even know if I m a de it,” Ricci told the CSB, “[b]ut the people who passed should be promoted. When your life’s on the line, s e cond best may not be good enough.” Id. , at A787–A788. Other firefighters spoke against certifyingthe test8 RICCI v. D E STEFANO Opinion of theCourt results. They described the te st questions as outdated or not relevant to firefigh ting p r actic e s in New Haven. Ga r y Tinney stated that source materials “came out of New York. . . . Their makeup of their city and e v erything i s totally different than o u rs.” Id. , at A774–A775; see also id. , at A779, A780–A781. And they critici zed the tes t materials, afull set of which cost about $500, for being too expensive and too long. 2 At a second CSB meeti n g, on February 5, the president of the New Haven fi r e fighters’ u n ion asked the CS B t o perform a v a lidation study to dete rmine whet her the test s were job-related. Petiti oners’ counsel in this action argue d that the CS B should certify the results. A representativ e of the Int e rnational Association of Black Profession al Firefighters , Donald Day fromneighboring Bridgeport, Connecticut , “beseech[ed]” the CS B “to thro w a w ay th at test,” whichhe described as “inherently unfair” because o f the racial d i stribution of the results. Id. , at A830–A831. Another Br idgeport-ba sed repr esentative of the associa

tion, Ronald Mack ey, stated that a validation study wa s necessary. He sug g ested that the Citycould “adjust” the test results to “meetthe criteria of having a certain amount of minorities get elevated to the rankof Lieuten

ant and Ca ptain.” Id. , at A838. At the end of this meet

ing, the CS B members agreed to ask IOS to send a repr e sentative to explain how it had developed and administered the exa m inations. They al so discussed asking a panel of experts to review the examinations an d advise the CSB wheth e r to certifythe results. 3 At athird meeting, on February 1 1 , Legel addressed the CSB on be half of IOS. Legel sta t ed that IOS had previ

ously prepared entry-level fire fighter examinations for th e9 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt City but n o t a promotional exa m ination. He explained that IOS h a d developed examinations for departments in communities with demographics similar to New Haven’s , including Orange Coun ty, Florida; Lansing, M i chigan; an d San Jose, California. Legel explained the exam-development process to the CSB. He began by describing th e job analy s es IOS per

formed of the captain and lieutenant positions—the inter

views, ride -alongs, and questionnaires IOS designed to “generate a list of tas k s, kn o w ledge, skills and abilities that are considered essential toperformance” of the jobs. Id. , at A931–A932. He outlined how IOS prepared the written an d oral exa m inations, based on th e job-analysis results, to test most heavily those qualities that the re

sults indicated were “critica [l]” or “essentia[l].” Id. , at A931. And he noted that IOS took the material for each test question directly from the approved source materials. Legel told t h e CSB tha tthird- part y reviewers had scru ti

nized the examinations to en sure that the written test wa s drawnfro mthe sour ce material and tha t the oral te st accurately tested real-world situa t ions that captains and lieutenants would face. Legel confirmed that IOS h a d selected oral-examination panelis ts so that each three

member as sessment p anel includ ed one whi t e, one blac k, and one Hispanic member. Near the e n d of his r e mark s, Legel “implor[ed] anyone that had .

. . concerns to review the content of the exam. In my professiona lopi n ion, it’s facially neutral. There’s nothing in those examinations

. . . that should cause somebody to think that one group would perform differ

ently than another group.” Id. , at A961. 4 At the next meeting, on March 11, the CSB heard from three witnesses it had selected to “tell us a lit tle bit about their views of the testi n g, the process, [and] th e methodo l

-10 RICCI v. D E STEFANO Opinion of theCourt ogy.” Id. , a tA1020. The first, Ch ristopher Hornick, spo k e to the C S B bytelephone. Hornic k is an indus

trial/organizational psychologist from Texas who operates a consultin gbusiness that “direct[ly]” competes with IOS. Id. , at A1029. Hornick, who had n o t “stud[ied] the test at length or in detail” and had not “seen the job analysis data,” told the CSB th at the scores indicated a “relatively high advers e impact.” Id. , at A1 028, A1030, A1043. He stated that “[n]ormally, whites o u tperform ethnic minori

ties onthemajority of standardized testing procedures,” but thathe was “a littl e surprised” bythe dis p arityin th e candidates’ scores—although “[s] ome of it is fairly typical of what we’ve seen in other areas of the countr[y] and other tests.” Id. , at A 1028–A1029. Hornick stated that the “advers eimpact o nthe writt e n exam was somewhat higher but generally in the r ange that we’ve seen profe s sionally.” Id. , at A1030–A1031. When asked to explain the New Haven test results , H o rnickopined in the telephon e conversation that the collective-bargaining agreemen t’s requirem e nt of using written an d oral examinations with a 60/ 40 composite score mightaccount fo r the statis tical dispar ity. He also stated that “[b]y not having a n yone from within the [D]epartme n t review” the tests before they were adminis

tered—a limitation the City hadimposed to protect t h e security of the exam questions—“you inevitably get things in there” that are based on the source materials but are not relevant to New Haven. Id. , at A1034– A1035. Hor

nick suggested that testing candidates at an “assessment center” rather than using writte n and oral examinations “might serve [the City’s] needs better.” Id

. , at A1039– A1040. Hornick stated that ass e ssment centers, where candidates face real-world situations and res p ond just as they would in the field, allow candidates “t o demonstrate how they would address a particular problem as opposed to just verbally saying it or identifying the correct option11 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt on a writte n test.” Ibid. Hornic k m a de clear that he was “not sugge sting tha t [IOS] somehow created a test that had adverse impacts that it shou ld not have had.” Id. , a tA1038. He described the IOS examinations as “reasonably good tes t [s].” Id. , a t A1041. He stated that the CSB’s best option might be to “certify the list as it exists” and work to cha n ge the proc

ess for future tests, including b y“[r] ewriti ng the Ci v il Service Rul e s.” Ibid. Hornick concluded his telephoni c remarks by telling the CSB that“for the future,” his com

pany “certa inly would like to help you if we c an.” Id. , at A1046. The second witness was Vincent Lewis, a fire program specialist for the Depar t ment of Homeland Security an d a retired fire captain fro mMichigan. Lewis, who is black, had looked “extensively” at the lieutenant exam and “a little less extensively” at the ca ptain exam. He stated that the candidates “should know th at material.” Id. , a t A1048, A10 52. In Lewis’s view, the “questions were rele

vant for both exams,” and the New Haven can d idates had an advanta g e because the study materials identified the particular book chapt e rs from which the questions were taken. In other departments, by contrast, “you had to k n ow basically the .

. . entire bo o k .” Id. , at A1053. Lewi s concluded that any disparate impact likely was due to a pattern tha t“usually whites outperform some of the mi

norities on testing,” o rthat “more whites .

. . take th e exam.” Id. , at A1054. The final w i tness was Janet Helms, a profess o r at Bos

ton College whose “primary area of expertise” is “not with firefighters per se” but in “race an d culture a s they influ

ence performance on tests and other assess ment proce

dures.” Id. , at A1060. Helms expressly declin ed the CSB’s offer to revi ew the exa m inatio ns. At the outset, she noted that “rega rdless of what kind of written tes twe give i n this country .

. . we can just abou tpredict how many peo

-12 RICCI v. D E STEFANO Opinion of theCourt ple will p a ss who a r e member s of under -represented groups. And your da ta are not that inconsistent with what predictions would say were the case.” Id. , at A106 1. Helms nevertheless offered se veral “ideas about what might be possible factors” to ex plain statistical differences in the results. Id. , at A1062. She concluded that because 67 percent of the respondents to the job-analysis question

naires were white, the test questions might have favored white candi d ates, because “mos t of the literature on fire

fighters shows that the different groups perform the job differently.” Id. , at A1063. Helms closed by stating tha t no matter what test the City had administered, it woul d have revealed “a disp arity betwe e n blacks and whites, Hispanics a n d whites,” particularlyon a writ ten test. Id. , at A1072. 5 At the final CSB meeting, on March 18, Ude (the City’s counsel) ar gued against certifyin g the examination re

sults. Discussing the City’s obligations under federal law, Ude advised the CSB that a finding of adverse impact “is the beginning, not the end, of a review of testing proce

dures” to d e termine whether theyviolated th e disparate

impact pro vision of Title VII. Ude focused the CSB o n determining “ w hether there are ot her ways to test for .

. . those positi ons that are equally v a lid with less adverse impact.” Id. , at A1101. Ude described Hornick as having said that the written examination “had one of the m o st severe adverse impacts that he ha d seen” and that “there are much better alter natives to identifying [ f irefighting] skills.” Ibid. Ude offered his “opinion that promotions .

. . as a resu lt of thes e t e sts wouldnot be consistent with federal law, would not be cons istent withthe purposes o f our Civil Service Rules or our Charter[,] nor is it in the best interests of the fir e fighters .

. . who took the exams.” Id. , at A110 3–A1104. He stated that previous Departmen t13 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt exams “have not had th is kind of result,” and that previ

ous results had not b een “challenged as ha ving advers e impact, whereas we are assured that these will be.” Id. , at A1107, A1108. CSB Chairman Segal o ff asked Ude severa l questions about the Title VII disp arate-impact standard. “CHAIRP E RSON SEGALOFF: [M ]y understa n ding is the group .

. . that is making to throw the exam out has the burden of sho w ing that there is out there an exam that is reasonably pr obable or likely to have les s of an adverse impact. It’s not our burden to s h ow that there’s an exam out there t hat can be better. We’ve got an exam. We’ve got a result. . . . “MR. UDE: Mr. Chair, I point outthat Dr. Hornick said that. H esaid that there are other tests out there that would have less a dverse impact and that [would] be more valid. “CHAIRP E RSON SE GAL O FF: You think that’s enough for us to throw this test upside-down .

. . be

cause Dr. Hornick said it? “MR. UDE: I think that by itself would be sufficient. Yes. I also would point out that .

. . it is the em

ployer’s burden to justify the use of the examination.” Id. , at A1108–A1109. Karen DuBois-Walton, the Ci ty’s chief administrative officer, spoke on beh a lf of Mayor John DeStefano and argued aga i nst certify ing the results. DuBois-Walton stated that the results, when consi d ered under the rule o f three and a pplied to th en-existing captain and lieutenant vacancies, created a situation in which black and Hispan ic candidates were dispro portionately excluded from oppor

tunity. Du Bois-Walton also re lied on Horni c k’s testimony, asserting t hat Hornic k “made it extremely c l ear that .

. . there are more appropriate ways to assess on e’s ability to serve” as a captain or lieutenant. Id. , at A1120.14RICCI v. D E STEFANO Opinion of theCourt Burget t (th ehuman resources director) aske d the C S B to discard the examination results. She, too, relied on H o rnick ’ s statement to show the existence of alternative testing methods, describing Hornic k as having “started to point out th at alternati v e testing does exist” and as havin g “begun to suggest tha tthere are some differ e nt ways o f doing written examina t ions.” Id. , at A1125, A1128. Other witn esses addressed the CS B. Theyin cluded the president of the New Haven firefighters’ union, who sup

ported cer t ification. He reminded the CS B t hat Hornic k “also concluded that the tests were reasonable and fair and under the currentstructure t ocertify th em.” Id. , a t A1137. Firefighter Frank Ricciagain argued for certifica

tion; he stated that although “assessment centers in some cases show less advers e impact,” id. , at A1140, they were not available alternatives for the c u rrent round of promo

tions. It would take s e veral year s, Ricci ex plained, for t h e Departmen t to develop an asse ss ment-center protocol and the accompanying training materials. Id. , at A1141. Lieutenant Matthew Marcarelli, who had taken the cap

tain’s exam, spoke in favor of certif i cation. At the close of witness testimony, the CSB voted on a motion to certify the examinations. With one member recused, the CSB dead locked 2 to2, resulting in a decisi on not to certify the results. Expl aining his vote to certify the results, Ch airman Seg a loff stated that “nobody con vinced me that we can feel comfortabl e that, in fact, there’s some lik elihood that there’s going to be an exam designed that’s going to be less discriminatory.” Id. , at A1159–A1160. C The CS B’s decision not to certifythe exami nation re

sults led to this lawsuit. The plaintiffs—who are th e petitioners here—are 17 white fire fighters an d 1 Hispani c firefighter who passed the exam in ations but were denied a chance at promotions when the CSB refused to certify th e15 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt test results. They include the named plaintiff, Fran k Ricci, who addressed the CSB at multiple meet ings. Petitioners sued the City, Mayo r DeStefano, DuBoisWalton, Ude, Burgett, and the two CSB members who voted against certificat i on. Petitioners also named as a defendant Boise Kim b er, a New Haven resident who voiced strong opposition to certifying the results. Those individuals are respondents in this Court. Petitioners filed suit u n der Rev. Stat. §§1979 and 1980 , 42 U. S. C. §§1983 and1985, allegi ng that res p ondents, by arguing o r voting agai nst certifyi n g the res u lts, violated and con

spired to violate the E qual Protection Clause of the Fou r teenth Amendment. P e titioners also filed timely charg e s of discrimination with the Equal Employment Oppo rtu

nity Commission (EEOC); upon the EEOC ’ s issuing right

to-sue lett ers, petitioners amended their complaint to assert that the City violated the disparate-treatment prohibition contained in Title VII of the Civil Rights Ac t of 1964, as am ended. See 42 U. S. C. §§2000e–2( a)

. The parties filed cross- motions forsummary judgment. Respondents asserted they had agood-faithbelief that they would have violated the disp arate-impact prohibition in Title VII, §2000e–2(k), had they certified the examina

tion results. It follows, they maintained, that they cannot be held liab l e under Title VII’s disparate-trea t ment provi

sion for attempting to comply wi th Title VII’s disparat e impact bar. Petitioners countered that respo n dents’ goo d

faith belief was not a valid defense to allegations of dispa

rate treatm e nt and unconstitutional discrimination. The Distri ct Court gr anted su mmary ju d g ment for respondents. 554 F. Supp. 2d 14 2. It descri bed petition

ers’ argum e nt as “boil[ing] down to the assertion that if [respondents] cannot prove that the dispa r ities on th e Lieutenant and Capta i n exams were due to a particula r flaw inherent in tho s e exams, then they should have certified th e results because there was no o t her altern a -16 RICCI v. D E STEFANO Opinion of theCourt tive in place.” Id. , at 156. The District Court concluded that, “[n]ot withstandi n g the shortcomings in the evidence on existing, effective alternatives, it is not the case that [respondents] mustcertify a test where they cannot pin

point its deficiency explaining its disparate impact .

. . simply because they have not yet formulated a better selection method.” Ibid. It also ruled that respondents’ “motivation to avoid making promotions ba sed on a tes t with a ra cially dispara t e impact .

. . does not, as a matte r of law, constitute discriminat ory intent” under Title VII. Id. , at 160. The District Court rejected petiti oners’ equal protection claim on the theory that respondents had no t acted because of “discriminatory animus” toward petition

ers. Id. , at 162. It concluded that respondents’ actio n s were not “b ased on race” because “all applicants took th e same test, and the result was the same for all because the test results were discarded and nobody wa s promoted.” Id. , at 161. After full briefing and argumen tby the parties, the Court of Appeals affirmed in a one-paragraph, unpub

lished summary order; it later wit h drew tha torder, issu

ing in its place a nearly identi cal, one-paragraph per curiam opi n ion adopting the District Cour t’s reasoning

. 530 F. 3d 8 7 (CA2 2008). Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over writ

ten dissents by Chief Judge Jacobs and Judge Cabranes. 530 F. 3d 88. This action presents two provisions of Title VII to be interpretedand reconciled, with few, if any, precedents in the courts of appeals discussing the issu e. Depending on the resolution of the statutory claim, a funda m ental con

stitutional question could also arise. We fou n d it prudent and appropriate to grant certiorari. 555 U. S. ___ (2009)

. We now reverse.17 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt II Petitioners raise a statutory claim, under the disparate

treatment prohibitionof Title VII, and a constitutional claim, under the Equal Protection Clause of the Fou r teenth Amendment. A decision for petition ers on thei r statutory claim would provide the relief s o ught, so we consider it first. See Atkinsv. P a rker , 472 U. S. 115, 1 23 (1985); Esc a mbia Countyv. McMillan , 466 U. S. 48, 51 (1984) (per curiam)(“[N]ormally the Court will n o t decide a constituti onal question if there is some other groun d upon which to dispose of the case”). A Title VII of the Ci vil Rights Act of 1964, 42 U. S. C. §2000e et seq. , as amended, prohibits employment dis

crimination on the basis of race, color, religion, sex, or national origin. Title VII pr ohibits both intentional di s crimination (known as “disparate treatment”) as well as, in some cases, practice s that a r e n o t intended to disc rimi

nate but in fact ha ve a disproporti onately adverse effect on minorities (known as “ d isparate impact”). As enacted in 1964, Title VII’s principal nondiscrimina

tion provisi o n held e m ployers li able on ly f o r disparate treatment. That section retains its original wording to

day. It mak e s it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any indivi d ual with r e spect to h i s compensation, terms, conditions, or privileges of empl oy ment, because of such individual’s race, color, religion, sex , or national origin.” §2000e–2(a)(1); see als o 78 Stat. 25 5. Disparate-treatment cases presen t “the most easily unde r stood type of discrimination,” Te amstersv. United Sta t es , 431 U. S. 324, 335, n. 15 (1977), and occur where an em

ployer has “treated[ a] particul a r person l e ss favorably than others because of ” a protecte d trait. Wat s onv. Fort W

o r t h Ba nk&T r us t , 487 U. S. 977, 985–986 (1988). A18RICCI v. D E STEFANO Opinion of theCourt disparate-treatment plaintiff must establish“that the defendant had a discriminatory intent or motive” for taking a job

- related act i on. Id. , at 986. The Civil Rights Act of 1964 did n o t include an express prohibition on policies or pr actices that produ c e a dispa

rate impact

. But in Griggsv. Du ke Power Co . , 401 U. S. 424 (1971), the Court interpreted the Act to prohibit, in some cases, employers’ facia lly neutral prac tices that, in fact, are “discriminatory in operation.” Id. , at 431. Th e Grig gs Court stated that the “touchstone” for disparate

impact liability is the lack of “business n e cessity”: “If an employmen tpractice which operates to exc l ude [mino r i

ties] cannot be shown to be re latedto job performance, th e practice is prohibited.” Ibid.; see also id ., at 432 (em

ployer’s burden to demonstrate th at practice has “a mani

fest relationship to the employment in question”); Albe

marle Pap e r Co. v. Moody , 422 U. S. 405, 425 (1975). Under those precedents, if an emp l oyer met its burden by showing that its practi ce was job-related, the plaintiff was required to show a legitimate alternative tha twould have resulted in less discrimination. Ibid. (allowing complain

ing party t oshow “that other tests or sel e ction devices, without a similarly undesirabl e racial effect, would also serve the employer’s legitimate interest”). Twenty years after Gr i ggs , the Civil Rights Act of 1991, 105 Stat. 1 071, was en acted. The Act in cluded a provision codifying the prohibition on disparate-impact discrimina

tion. That provision is now in force along wi th the dispa

rate-treatm e nt section already n o ted. Und e r the disp a rate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particula r employmen tpractice that causes a disparate impact on the basis of race, color, religion, sex, or nati o nal origin.” 42 U. S. C. §2000e–2(k)(1)(A)(i). An employer may defend against liab ility by demonstrating that the practice is “job related for the position in ques t ion and co nsistent with19 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt business n e cessity.” Ibid. Even if the e m ployer meets that burde n, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment pra cti ce that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). B Petitioners allege that when the C S B refused to certif y the captain and lieutenant exam results based on the race of the succe ssful candidates, it discriminated against them in violationof Title VII’s di sparate-treatment provision. The City counters that its decision was permissible be

cause the tests “appear[ed] to viol ate Title VI I’s disparate

impact provisions.” Brief for Respondents 12. Our analys is begins with th is premise: The City’s ac

tions would violate thedisparate-treatment prohibition o f Title VII ab sent somevalid defe nse. Allthe evidenc e demonstrates that the City chose not to certify the exami

nation results because of the statistical disparity based on race— i.e. , how minority candidates had perf ormed when compared t owhite can d idates. A s the Distri ct Cour t pu t it, the Cityrejected t h e test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” 554 F. Su pp. 2d, at 1 52; see also ibid. (respondents’ “own argume nts .

. . sh ow that the City’s reas ons for advocatingn o n-certificat i on were r e lated to the racial distribution of the results”). Without some otherjustification, this ex press, race-based deci

sionmak i ng violates Ti tle VII’s command that employers cannot take adverse employmen tactions because of a n individual’s race. See §2000e–2(a)(1). The Distric tCourt di d not adhere to this principle, however. It held that resp onden t s’ “motivation to avoid making promotions ba sed on a test with a racially dispa

rate impact

. . . does not, as a matter of law, constitu te20 RICCI v. D E STEFANO Opinion of theCourt discriminatory intent.” 554 F. Su pp. 2d, at 160. And th e Government makes a similar argument in this Court. It contends that the “stru cture of Tit l e VII belies any claim that an employer’s intent to comply with Title VII’s dispa

rate-impactprovisions constitutes prohibited discrimina

tion on the basis of race.” Brief for Unite dStates as Amicus Cu riae11. B u t both of those statements turn upon the City’s o bjective—a voiding disparate-impact liability—while ignorin gthe City’s conduct in the name of reaching that objective. What ever the City’s ultimate aim—however well intentioned or benevolent it might have seem ed—the City made its employment decisio n because of race. The City rejec t ed the test r e sults solely because th e higher sc oring candidates were white. The question is not wheth e r that con d uct was di scriminatory but whethe r the City h a d a lawful justification for its race based action. We conside r , therefore, whether the purpose to avoid disparate-impact liability excu ses what otherwise would be prohibit ed disparate-treatment discrimination. Courts often confront cases in which sta t u t es and principles point in different directions. Our tas kis to provide guidance t o employers and courts for situations when these two prohi

bitions could be in conflict absen t a rule to reconcile them. In providin g this guida n ce our deci sion must be consistent with the important p u rpose of Title VII—that the work

place be an environment free of dis crimination, where race is not a barrier to opportunity. With these principles in mind, w eturn to the parties’ proposed means of r e conciling the statutory provisions. Petitioners take a strict approa ch, arguingthat under Title VII, it cannot be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability—even if the employer knows its practice vio l ates the disparate-impact pro vision. See Brief for Petitioners 43. Pe titioners would have us hold tha t ,21 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt under Titl e VII, avoiding unintentional discrimination cannot justi f y intentional discrimination. That assertion, however, ig nores the fact that , by codifying the disparate

impact provision in 1991, Congress has expressly prohib

ited both ty pes of discrimination. We must interpret the statute to give effect to both provisions where possibl e. See, e.g. , UnitedS t atesv. Atlantic ResearchCorp. , 551 U. S. 128, 137 (2007) (rejecting an i n terpretati on that would render a s t atutory provision “a dead letter”). We cannot accept petitioners’ broad and inflexible formulation

. Petitioners next suggest that an employer in fact must be in violation of the disparate-impact provisi o n before it can use co mpliance as a defense in a disparate-treatment suit. Again, this is overly simplistic and too r e strictive of Title VII’s purpose. The rule petitioners offe r would run counter to what we h ave recogni z ed as Con gress’s inte nt that “voluntary compliance” be “the preferred means of achieving the objectives of Title VII.” Firefigh t ersv. Clev e land , 478 U. S. 501, 515 (1986); s ee also Wygantv. Jack

son Bd. of Ed. , 476 U. S. 267, 290 (1986) (O’Connor, J., concurring in part and concurri ng in judgment). Forbid

ding employers to actunless they know, with certaint y , that a pra ctice violates the dis p arate-impact provisi o n would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be m e t, employe r s lik el y would hesitate before tak

ing voluntary action for fear of lat e r being proven wrong in the course of litigationand th en held to account for dispa

rate treatm e nt. At the opposite end of the spectrum, respondents and the Govern ment assert that an employer’s good-faith belie f that its a c t i ons are necessary to comply wi t hTitle VII’s disparate-impact provision sh oul dbe enou gh to justify race-conscious conduct. But the original, f o undational prohibitionof Title VII bars em ployers from tak i ng ad

-22 RICCI v. D E STEFANO Opinion of theCourt verse action “because of .

. . race.” §2000e–2 (a)(1). An d when Congress codified the disparate-impactprovision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-fait h effort to comply with th e new, disparate-impact provision in subsection (k). Allow

ing employers to viola t e the disparate-treatment prohibi

tion based on a mere good-faith fear of disparate-impact liability would encourage race-bas ed action at the slighte s t hint of disparate impact. A minim a l standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there i s little if an y evidence of disparate-impact discrimination. That woul d amount to a de factoquota system, in which a “focus on statistics .

. . could put undue pressure on employers to adopt inappropriate prophylactic measures.” Wa tson , 48 7 U. S., at 992 (plurality opinion). Even worse, an employer could discard test resu lts (or other employment prac tices) with the intent of obtai n ing the employer’s pre f erred racial balance. That operati o nal principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright raci al balancin g. §2000e–2(j). The pu rpo s e of Title VII “is to promote hiring on the basis of job qualifications, rather thanon the basis of race or color.” Grig gs , 401 U. S., at 434. In searching for a s t a n dard tha t strikes a m o re appro priate balance, we note that thi s Court ha s considered cases similar to this one, albeit inthe context of the Equal Protection Clause of th e Fourteenth Amendment. The Court has held that certain go vernment actions to remedy past ra cial discrimination—actions that a r e themselves based on r a ce—are constitutional only where there is a “ ‘strong bas is in evidence’ ” that th e remedial actions wer e necessary. Richmondv. J. A. Croson Co. , 488 U. S. 46 9, 500 (1989) (quoting Wygant , supr a , at 277 (plurality opin

ion)). This suit does not call on us to consider whether th e statutory constraints under Title VII must be parallel in23 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt all respects to those under the Constitution. That does not mean the c o nstitutional autho rities are irrelevant, how

ever. Our cases discu ssing co nstitutional principles can provide helpful guidance in th is statutory context. See Wa tson , su pra , at 993 (plurality opinion). Writing for a plurality in Wygan tand announcing the strong-basis-in-evidence standard, Justice Powell recog

nized the tension bet w een eliminating segregation and discrimination on the one hand and doing away with a ll governmentally imposed discrimination basedon race on the other. 476 U. S., at 277. The plurality stated th at those “related constitut i onal duties are not always harm o nious,” andthat “reconciling them requires .

. . employer s to act withextraordin a ry ca re.” Ibid. The plurality re

quired a strong basis in evidence because “[ e]videntiary support forthe conclu sion that r e medial action is war

ranted bec o mes crucial when t h e remedial program is challenged in court by nonminority employees.” Ibid. T h e Court applied the same standard i n Croson , o b serving th at “an amorph ous claim that there has been pas tdiscrimina

tion .

. . ca nnot justify the use of an unyielding racial quota.” 488 U. S., at 49 9. The same interests are at wor kin the interplay betwee n the disparate-treatment and di sparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discriminatio n in order to r i d the work

place of “p r a ctices thatare fair in form, but di scriminatory in operation.” Griggs , supr a , at 4 31. But it has also pro

hibited em ployers from tak i ng adverse employment ac

tions “because of” race. §20 00e–2(a)(1). Applying the strong-basis-in-evidence standar d to Title VII gives effect to both th e disparate-treatment and disparate-impact provisions, allowing violations of one in the name of co m pliance wit hthe other only in c e rtain, nar row cir c um stances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the24RICCI v. D E STEFANO Opinion of theCourt statutory s c heme andto Congress’s efforts to eradica t e workplace discrimination. See Firefigh t ers , supra, at 51 5. And the standard appropriately constrains employers’ discretion in making r a ce-based decisions: It limits that discretion to cases in which ther e is a strong basis in evidence of disparate-impact liability, but it is not so restrictive t hat it allows employers to act only when ther e is a provable, actual violation. Resolving the statutory conflict in this way allows the disparate-impact proh ibition to work in am anner that is consistent with other provisions of Title VII, including t h e prohibitionon adjusti n g empl oyment-related test scores on the basis of race. See §2000e–2( l). Exa m inations like those administered by the City cr eate legitimate expecta

tions on the part of those who tookthe tests. As is the case with any promot ion exam, some of the firefighters here inves t ed substantial time, money, a n d personal commitment in prepari n g for the t e sts. Empl oyment test s can be an important part of a n e utral selec t ion system that safegu ards against the very racial animosities Title VII was intended to prevent. Here, however, the firefight

ers saw their efforts invalidated by the City in sole reli

ance upon race-based statistics. If an employer cannot rescore a test based onthe candi

dates’ race, §2000e–2( l ), then it follows a fortiori tha tit may not take the greater step of discarding the test alto

gether to achieve a more desirable racial distribution of promotion-eligible candidates —absent a stro ng basis in evidence that the testwas defici ent and th at discardi ng the results is necessary to avoidviolating t h e disparat e impact pro vision. Restricting an employer’s ability to discard test results ( and thereby discriminate against qualified candidates on the basis of their race) also is in k eeping with Title VII’s express protection of bona fi de promotional examinations. See §2000e–2(h) (“[N]or shal l it be an unlawful employment pra ctice for anemployer to25 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt give and to act upon the results of any professional l y developed ability test provided that such test, its admini

stration oraction up on the results is not designed, in

tended or used to discriminate bec ause of race”); cf. AT& T Corp. v. Hu lteen , 556 U. S. ___, ___ (2009) (slip op., at 8). For the foregoing reasons, we adopt the strong-basis-in

evidence standard as a matter of statutory construction to resolve any conflict be tween the disparate-tr eatment and disparate-impact provisions of Titl e VII. Our statu t ory holding does not address the constitution

ality of the measures taken here in purporte d compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ev er sufficient to justify di scriminatory treatment u n der the Constitution. Nor do we question anemployer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to pa rticipate inthe p r ocess by whic h promotions will be made. But once that process has been established and employers have made clear their sel e ction criteria, th ey may not then inv a lidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, abs ent a strong basis inevidence of a nimpermis sible di sparate impact, amounts to the sort of racial preference that C o ngress has disclaimed, §2000e–2(j), and is anti t hetical to the notion of a workplace where individuals are guaranteed equ a l opportunityregardless of race. Title VII does not pro h ibit an e m ployer from consider

ing, before administering a testorpractice, how to design that test orprac tice in order to p r ovide a fair opportunit y for all individuals, regardless of their race. And when, during the test-design stage, an employer invites co m -26 RICCI v. D E STEFANO Opinion of theCourt ments to ensure the test is fa ir, that proce ss can provide a common ground for open discussio n s toward that end. We hold only that, under Title VII, before an employer ca n engage in intentional discrimination for the asserted purpose of avoiding or remedying an uninten tional dispa

rate impact, the employer must have a strong basis in evidence to believe it will besubject to disparate-impact liability if i tfails to take the race-conscious, discrimina

tory action. C The City argues that, even under the strong-basis-in

evidence standard, its decisionto discard the examination results was permissible under Title VII. That is incorrect

. Even if respondents were moti vated as a subjective matter by a desire to avoidcommitting disparate

- impact dis

crimination, the record makes cl ea r there is n osupport fo r the conclusion that respondents had an objective, stro ng basis in evidence to find the tests inadequate, with some consequentdisparate-impact liability in viola t ion of Titl e VII. On this basis, we conclude that petitioners have me t their obligation to demonstrate th at there is “no genuine issue as to any material fact” and that they are “entitled t o judgment a s a matter of law.” Fed. Rule Civ. Proc. 56(c)

. On a motion for summ ary judgment, “facts m u st be viewed in the light most favorable to the nonmoving party only i f there is a ‘genuine’ dispute as to those facts.” Scottv. Har r is , 55 0 U. S. 37 2, 380 (2007). “Where the reco rd taken as a whole couldnot leada rational trier of fact to find for the nonmoving party, there is n ogenuine issu e f o r trial.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp. , 475 U. S. 574, 5 87 (1986) (internal quotation marks omitted). In this Court, the City ’s only defense is that it acted to co mply with Title VII’s disparate-impact p r ov i

sion. Tos u cceed on their motion , then, peti tioners mu st27 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt demonstrate that there can be no genuine dispute that there was no strong b a sis in evidence for th e City to con clude it would face dis p arate-impact liability if it certifi ed the examination results. See Celotex Corp. v. Catrett , 47 7 U. S. 317, 324 (1986) (where the nonmovin g party “will bear the bu rden of proo f at trial on a dispositiv e issu e,” the nonmoving party bears the burden of production under Rule 56 to “designate specific facts showing that there is a genuine issue fortrial” (in t ernal quotation marks omitted)). The racial adverse impact here was significant, an d petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. On the captain exam, the pass rate for white candidates was 64 percent but was 37.5 percent for b o th black a n d Hispani c candidates. On the lieutenant exam, the pass rate for white candi d ates was 58.1 percent; for black candidates, 31.6percent; and for Hispanic can d idates, 20 percent. Th e pass rates of minorities, which were appro x imately one

half the pass rates for white candi d ates, fall well below the 80-percent standard s e t by the EEOC to i m plement the disparate-impact provision of Title VII. See 29 CFR §1607.4(D) (2008) (selection rate that is less than 80 per

cent “of the rate for the grou p with the highest rate will generally be regarded by the Federal enforcement agen

cies as evidence of adv e rse impact”); Wa tson , 487 U. S., at 995–996, n. 3 (plurality opinion) (EEOC’s 80-percent standard is “a rule of thumb for the courts”)

. Based on how the passing candidates r anked and an a p plication of the “rule of three,” certi fying the ex aminations would have meant that the City could no t have considered black can didates for any of the then-vacant lieutena n t or captain positions. Based on the degree of adverse impact reflected in the results, respondents were comp elled to take a hard look a t the examinations to determ ine whether certifying t h e28RICCI v. D E STEFANO Opinion of theCourt results would have had an impermissible disparate im

pact. The problem for respondents is that aprima faci e case of disp arate-impact liability—essentially, a threshol d showing of a significan t statistical disparity, Connecti c u t v. Teal , 45 7 U. S. 440 , 446 (1982), and noth ing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the re

sults. That is because the City could be liable for dispa

rate-impact discrimination only if the examinations were not job related and con s istent with business n e cessity, or if there existed an equally valid, less-discriminatory alterna

tive that served the City’s needs but that the City refuse d to adopt. § 2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to estab lish that th e test wa s deficient in either of these respects. We address each of the two points in tu rn, based on t h e record d e veloped by the parties through discovery—a r e cord that concentrate s in substantial part onthe state m ents vari ous witnesses made to the CSB. 1 There is n ogenuine dispute that the examina t ions were job-related and consistent with b u siness nec e ssity. Th e City’s assertions to the contrary are “blatantly contr a dicted by t h e record.” Scott , su pra , at 380

. The CSB heard statements from Chad Legel (the IOS vice presi

dent) as we ll as city of ficials outlining the de tailed steps IOS took to develop and administer the examinations. IOS devise d the written examinations, which were th e focus of the CSB’s inquiry, after painstaking analyses of the captainand lieutenant positions—analyses in which IOS made sure that minorities were overrepresented. And IOS drew the question s from so urce material approvedb y the Department. Of the outside witnesses who appeared before the CSB, only o n e, Vincent Lewis, had reviewed the examinations in any detail, and he was the only one with29 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt any firefigh ting experi ence. Lewis stated th at the “ques

tions were relevant for both exams.” CA2 App. A105 3. The only other witness who had seen any part of the ex

aminations, Christopher Hornick (a competitor of IOS’s), criticized the fact that no one within the Department had reviewed the tests—a condition imposed by the City to protect the integrity of the exams in light of past alleged security breaches. But Hornick stated that the exams “appea[r] tobe . .

. reasonably good” and recomm ended that the CSB certify the results. Id. , at A1041. Arguingth at the exa m inations were not j o b-related, respondents note some candidates’ complaints that certai n examination questions were contradictory or did not spe

cifically apply to firefighting pra c tices in New Haven. Bu t Legel told the CSB t hat IOS h a d addressed those con

cerns—that it entertained “a handful” of cha llenges to the validity of particular examination questions , that it “re

viewed tho s e challenges andprovided feedback[to the City] as to what we th ought th e best course of action was,” and that he could remember at lea s t one question IOS had thrown out (“offer[ing] credit to ev erybody for that particu

lar question”). Id. , atA955–A957. For his part, Horni c k said he “su s pect[ed] that some of the criticisms .

. . [lev

eled] by candidates” we re not valid. Id. , at A1035. The City, moreover, turned a blind eye to e vidence tha t supported t h e exams’ validity. Al though the City ’s con tract with IOS contemplated that IOS would prepare a technical r e port consistent withEEOC gu idelines for examination-validity s t udies, the City made no request for its report. After the J anuary 200 4 meeting between Legel and some of the city-official respondents, in which Legel defended the examinations, the City sought no further informationfrom IOS, save its appearance at a CSB meet

ing to explain how it developed and administered the examinations. IOS stood re ady to provide respondents with detailed information to establish the v a lidity of the30 RICCI v. D E STEFANO Opinion of theCourt exams, but respondents did not accept that offer. 2 Respondents also lacked a strong b a sis in evid ence of an equally valid, less-discriminatory testing alternative that the City, by certifyin g the examination r e sults, would necessarily have refused to adopt. Respondents raise three arguments to the contrary , but each argument fails. First, respo n dents refer to te stimony before the CSB that a different composite-score calculation—weighting th e written an d oral examination s c ores 30/70—would have allowed the City to con s ider two black can d ida t es for then

open lieutenant positions and one black candidate for then-open captain po sitions. (The City used a 60/40 weighting a s required by its cont r a ct with th e New Hav e n firefighters’ union.) B u t respondents have produced n o evidence to show that the 60/40 weighting was indee d arbitrary. In fact, beca use that formula was the result of a union-negotiated collective-bargai n ing agre ement, we presume the parties negotiated that weighti n g for a ra

tional reason. Nor does the record contain any evidence that the 30/ 70 weightin g would be an equally valid wa y to determine whether candidates possess theproper mix of job knowledge and situational skills to earnpromotions. Changing the weighting formula, moreover, could well have violated Title VII’s prohibit ion of altering test s c ores on the bas is of race. See §2000e–2( l). On this record, there is n o basis to conclude that a 30/70 weighting was an equally valid alternative the City could have adopted. Second, respondents argue that the City could have adopted a different interpretatio nof the “ r ule of three” that would have produced less dis criminatory results. T h e rule, in the New Have n city chart e r, requires the City to promote on ly from “those applica n ts with the three h i gh

est scores” on a promotional examination. New H ave n, Conn., Code of Ordinances, Tit. I, Art. XXX, §160 (1992)

.31 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt A state cou rt has interpreted the charter to prohibit so

called “banding”—the City’s previ o us practice of roundin g scores to the nearest whole num ber and considering all candidates with the same whole-n u mber score as being of one rank

. Banding allowed the City to consider three ranks of candidates (with the possibility of multiple candi

dates fillin g each rank) for purposes of the rule of three. See Kellyv. New Ha ven , No. CV000444614, 2004 W L 114377, *3 (Conn. Super. Ct., Jan. 9, 2004). Respondents claim that employing banding here would have made f o ur black and o n e Hispanic candidate s eligible for then-open lieutenant and captainpositions. A state co urt’s prohibition of banding, as a matter of municipal law under the charter, may not eliminate band

ing as a val i d alternative under Ti tle VII. Se e 42 U. S. C. §2000e–7. We need not resolve th at point, however. Here, banding wa s not a valid alternative for this reason: Ha d the City reviewed the exam results and then adopted banding to make the minority test scores appear higher, it would have violated Title VII’ s prohibition of adjusting test results on the ba sis of race. §2000e–2( l); see also Chicago Firefighters Local 2 v. Chi c ago , 249 F. 3d 649, 656 (CA7 2001) (Posner, J.) (“We have no doubt th at if banding were adopted in orderto mak el o wer black scores se e m higher, it would indeedbe .

. . forb idden”). As a matter of law, banding was not a nalternative available to the Cit y when it was considering whetherto certify the examina

tion results. Third, and finally, respondents refer to statements by Hornick in his telephone inte rview with the CSB regard

ing alternatives to the written examinations. Hornick stated his “belie[f]” that an “asse ssment center process, ” which woul d have evaluated candidates’ behavior in typi

cal job tas k s, “ w ould have demonstrated less adverse impact.” CA2 App. A1 039. But Hornick’s bri e f mention of alternative testing methods, standing alone, does not raise32 RICCI v. D E STEFANO Opinion of theCourt a genuine issue of m a terial fact that assess ment centers were available to the City at the ti me of the examinations and that th ey would h ave produced less adverse impact. Other s t ate m ents to t h e CSBindicated tha tthe Depa rt

ment could not have used assessm ent centers for the 2003 examinations. Supra, at 14. And although responden t s later argue dto the CS B that Hor n ick had pu shed the Cit y to reject th e test results, supra , a t15–17, the truth is that the essence of Hornick’s remarks supported its certifyin g the test results. See Scott , 550 U. S., at 380. Hornick stated that adverse impact in s t andardized testing “h as been in existence since the beginni ng of testing,” CA2 App. A1037, and that the di sparity in New Ha ven ’ s test results was “somewhat highe rbut generally in the range that we’ve seen professional ly.” Id. , at A1030–A1031. He told the CSB he was “not suggesting” that IOS “somehow created ate st that had adverse impacts that i tshould no t have had.” Id. , at A103 8. And he s u ggested th at the CSB should “certify the list as it exists.” Id. , at A1041. Especially when it is noted that the strong-basis-in

evidence standard applies, respon dents cann ot create a genuine iss u e of fact b a sed ona few stray (a nd contradi c tory) state m ents in the record. And there is no doubt respondents fall short of the mark by relying entirely on isolated st atements by Hornick. Horni c k had n o t “stud[ied] t h e test at length or in detail.” Id. , at A1030. And as he told the CSB, he is a “direct competitor” of IOS’s. Id. , at A1029. The remainder of his remarks showed that Hornick’s primary concern—somewhat to th e frustration of CSB me mbers—wa s marketing his services for the futu re, not commenting on the results of the tests the City had already administered. See, e.g. , id. , at A1026, A1027, A1032, A1036, A1040, A1041. Hornick’s hinting had its intended effect: Th e City has since hired him as a consultant. As for the other outside witnesses who spoke to the CS B, VincentLewis (th eretired fire33 Cite as: 55 7 U

. S. ____ (2009) Opinion of theCourt captain) th ought the CSB should certify th e test results

. And Janet Helms (the Boston Co llege professor) declined to review the examina t ions and told the CSB that, as a society, “we need to de velop a ne w way of assessing pe o ple.” Id. , atA1073. That task was beyond the reach of the CSB, whichwas concerned with the adequacy of the tes t results before it. 3 On the record before us , there is no genuine dispute th a t the City lacked a stro ng basis in evidence to believe it would face disparate-impact liability if it certified the examination results. I nother words, there is no evidenc e —let alone the required strong ba sis in evidence—that the tests were flawed because th ey were not job-related or because oth e r, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, an d summary judgment i s appropriate for petitioners on their disparate-treatment claim.

* * * The record in this litigation documents a process that, at the outset, had the potential to produce a testing proce

dure that was true to the promise of Title VII: No individ

ual should face workpl ace discrim i nation based on race. Respondents thought about promotion qualif ications and relevant ex perience in neutral wa ys. They were careful to ensure broad racial pa r t icipation in the desig nof the tes t itself and its administration. As we have discussed a t length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant34RICCI v. D E STEFANO Opinion of theCourt rationale for the City ’s refusal to certify the results. The injury arises in part fr om the high, and justified, expecta

tions of the candidates who had participated i nthe testing process on the terms the City had established for the promotional process. Many of th e candidates had studied for months, at considerable personal and financial ex

pense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted wi th a r guments b o th for and against certifying the test results—and thre ats of a la w suit either way—the C i ty was required to make a difficul t inquiry. But its hearings produce dno strong evidence of a disparate-impact violation, and the City wa s not entitled to disregar d the tests based solely on the ra cial disparity in the results. Our holding today cl arifies how Title VII applies to resolve co mpeting e x pectations under the disparate

treatment and disparate-impact provisions. If, after it certifies the test result s, the Cityf a ces a disp arate-impac t suit, then in light of o u r holding today it should be clear that the City would avoid disparate-impact li ability based on the strong basis in evidence t hat, had itnot certifi ed the results, it would have been subject to disparate

treatment liability. Petitioners are entitled to summary ju dgmen ton their Title VIIclaim, and we therefo r e need n o t decide the underlying constitutional question. The judgment of the Court of Ap peals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so orde red._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009) S CALIA , J ., co n c ur ring 

## SUPREME CO URT O FTHE UNI TED STATES

Nos. 07– 14 28 an d 08– 328 FRAN K RI CCI, ET AL ., PETITIONERS 07–1428 v. JOHN D E STEFANO ET AL
. FRAN K RI CCI, ET AL ., PETITIONERS 08–328 v. JOHN D E STEFANO ET AL
. ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Ju n e29, 2009 ] J USTICE S CALIA , concu rring. I jointhe C o urt’s opinion infull, b u t write separately to observe that its resolution of this dispute merely post

pones the evil day on which the Court will have to confront the questio n: Whether , or to wha textent, are the dispa

rate-impact provisions of Title VIIof the Civil Rights Act of 1964 consistent wi th the Constitution’s guarantee of equal protection? The questionis not an ea sy one. See generally Primus, Equal Protection and Disparate Impact: Round Thre e, 117 Harv. L. Rev. 493 (2003). The difficulty is this: Whether or not Title VII’s dispa

rate-treatm e nt provisions fo rbid “remedial” race-based actions when a dispara t e-impact violation would nototh

erwise result—the question resolved by the C o urt today

— it is clear that Title VII not only permits but affirmatively require ssuch actions when a disparate-impact violation wouldothe rwise resul t

. See ante , at 20–21

. But if th e Federal Go vernment i s prohibited from discriminating on the basis of race, Boll ing v. Sha r pe , 347 U. S. 497, 50 0 (1954), then surely it is also prohibited from enacting laws2 RICCI v. D E STEFANO S CALIA , J., con c ur ring mandating that third parties—e. g. , employers, whether private, State, or muni cipal— discriminate on the basis of race. See Buc h ana nv. Warl ey , 245 U. S. 60, 78–82 (1917). As the facts of these cases illustrate, Title VII’s disparate

impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policie s, and to m a k edecisio n s based on(because of ) those racial outcomes. That type of racial decisionmaking is, as the C o urt explains, discriminatory. Se e ante , at 1 9 ; Personnel A d ministr a to r of Mass. v. Feeney , 44 2 U. S. 256, 279 (1979). To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear wh ythat should provide a s a fe harbor. Would a private em ployer not be guilty of unlawful discrimination if he refrained from establishin ga racial hiring quota but intentionally de

signed his hiring practices to achieve the same en d? Surely he would. Int e ntional dis crimination is still occur ring, just one step up the chain. Government compulsion of such de sign would therefore seemingly violate equal protection principles. Nor would it matter that Title VII requires consideration of race on a wholesale, rather tha n retail, level. “[T]he Govern ment must treat citizens as individuals, not as simply comp onents of a racial, rel i

gious, sexu al or national class.” Miller v. Johnson , 5 1 5 U. S. 900, 911 (1995) (internal quotation marks omitte d). And of cour se the purp ortedly benign motive f o r the dispa

rate-impact provisions cannot save the statute

. See Adarand Constructors, Inc. v. Peña , 51 5 U. S. 200, 227 (1995). It might be possible to defend the law by fra m ing it as simply an evidentiary tool us ed to identify genuine, inten

tional discrimination—to “smo ke out,” as it were, dispa

rate treatm e nt. See Primus, supr a , at 498–499, 520–521. Disparate i m pact is sometimes (t hough not always, se e Wa tsonv. Fort WorthBank & Trust , 487 U. S. 977, 992 (1988) (plurality opinion)) a signal of somethin g illicit, so a3 Cite as: 55 7 U

. S. ____ (2009) S CALIA , J ., co n c ur ring regulator might allow statistica l disparities to play s o me role in the evidentiary process. Cf. M cDo nnell Douglas Corp. v. Gr een , 411 U. S. 792, 802 –803 (1973). But argu a bly the disparate-impact provisions sweep too broadly to be fairly characterized in such a fa shion—since they fail t o provide an affirmative defense f o r good-faith ( i.e. , nonra cially motiv a ted) condu ct, or perh aps even for good fait h plus hiring standards that are entirely reasonable. See post , at 15 –16, and n. 1 (G INSB U R G , J., dissenting) (de

scribing the demanding nature of the “busines s necessity” defense). This is aq u estion tha tthis Court will have to consider in due course

. It is one thing to free plaintiffs from proving an employer’s illic it intent, but quite another to preclude the emplo y er from proving that its motives were pure and its actions reasonable. The Court’s resolution of these cases makes it unneces

sary to resolve these matters toda y. But the war betwee n disparate i m pact an d equal protection wil lbe wage d sooner or la ter, and it behooves us to begin thinking abou t how—and on what terms—to make peace bet w een them._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009)
ALITO , J ., con c urrin g 

## SUPREME CO URT O FTHE UNI TED STATES

Nos. 07– 14 28 an d 08– 328 FRAN K RI CCI, ET AL ., PETITIONERS 07–1428 v. JOHN D E STEFANO ET AL
. FRAN K RI CCI, ET AL ., PETITIONERS 08–328 v. JOHN D E STEFANO ET AL
. ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Ju n e29, 2009 ] J USTICE ALI T O , with whom J USTIC E S CALIA an d J U S TI CE T HOMASjoin, concurri ng. I join the Court’s opinion in full. I write separately onl y because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of G IN S B U R G , J.), provides an incomplete description of the events that led to New Ha

ven’s decision to rejectthe results of its exa m . The di s sent’s omissions are i m portant because, when all of the evidence in the recor dis ta ken into account , it is clear that, even i f the legala nalysis in P a rts II and III–A of the dissent were accepted, affirmance of the decision below is untenable. I When an employer in a disparate-treatment case under Title VII of the Civil Rights Act of 1964 claims that an employmen tdecision, such as the refusal to promote, was based on a legitimate reason, two questions—o ne objective and one subjective—m ust be decided. The first, objectiv e question is whether the reason given by the employeris2 RICCI v. D E STEFANO
ALITO , J ., con c urrin g one that is legitimate under Title VII. See St. Ma ry’s Honor Cen t erv. Hick s , 509 U. S. 502, 506–507 (1993). If the reason provided by the employer is not legitimate on its face, the employeris liab l e. Id. , at 509. The secon d , subjective question con c erns the employer’s intent. If an employer of fers a facial ly legi timate reason forits decision but it turn s out that this explanation was just a prete x t for discrimi nation, the employer is again liable. See id. , at 510–512. The questio n on which the opinionof the Cou rt and the dissenting opinion di s a gree concerns the obj e ctive compo

nent of the determination that must be m a de when an employer justifies an employmen tdecision, lik e the on e made in this litigation, on the ground th at a contrary decision would have created a risk of disparate-impact liability. The Court holds—an d I entirel yagree—that concern about disparate-impact l i ability is a legitimate reason for a decision of the ty pe inv o lved here only if ther e was a “sub stantial basis in evidence to find the tests in

adequate.” Ante , a t26. The Court ably demonstrates th at in this litig ation no rea s onable jurycould find that the city of New H a ven (City) possessed s u ch evidence and there

fore summ ary judgme nt for pe titioners is required. Be

cause the Court correctly holds that respondents cannot satisfy this objective componen t, the Court has no need to discuss the question of the respondents’ actual intent. As the Courtp u ts it, “[e] v e n if respondents were motivated a s a subjective matter by a desire to avoid committing dispa

rate-impactdiscrimination, the record makes clear there is no support for the conclusion that respondents had an objective, substantial basis in evidence to find the tests inadequate. ” Ibid

. The dissent advocates a different objective component of the governing standar d. Accordi n g to the dissent, the objective co mponent should be whether the evidence pro

vided “good cause” for the decision, post , a t 19, and th e3 Cite as: 55 7 U

. S. ____ (2009)
ALITO , J ., con c urrin g dissent argues—incorrectly, inmy view—th a t no reason

able juror could fail to find that such evidence was present here. But even if the dissent wer ecorrecton this point, I assume tha tthe dissen twould not countenan ce summary judgment for respondents if res p ondents’ professed con

cern about disparate-impact litigation was simply a pre

text. Therefore, the decision belo w, which sustained the entry of summary judgment for respondents, cannot b e affirmed unless no reasonable ju ry could find that th e City’s asserted reason for scrapping its test—conce rn about disparate-impact liability—was a pretext and that the City’s real reas on was illegiti mate, namely, the desi re to placate a politically important racial constituency. II A As initiallydescribed by the diss ent, see post , at 2–12 , the process by which t h e City reached the de cision not to accept the test results was open, honest, serious, an d deliberative. But even the DistrictCourt adm i tted that “ a jury could r a tionally infer thatcityofficials worked behin d the scenes to sabota ge the promotional examinations because they knew t hat, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leader s of New Haven’s African-American community.” 554 F. Supp. 2d 142, 162 ( C onn. 2006), summarily aff’d, 530 F. 3d 87 (CA2 2008) (per curiam)

. This admission finds ample support in t h e record. Reverend Boise Kimber, to whom the Dist rict Cour t re ferred, is a politically powerful New Haven pastor and a self-professed “ ‘kingm aker.’ ” Ap p. to Pet. for Cert. in No. 07–1428, p. 906a; see also id. , at 909a. Onone occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killi ng white Yalie Christian Prince. He continues to call white s racist if they question his actions.” Id. , at 931a.4 RICCI v. D E STEFANO
ALITO , J ., con c urrin g Reverend Kimber’s personalties with seven-term New Haven Ma yor John De Stefano (M ayor) stretch back more than a decade. In19 96, for exa m ple, Mayor DeStefan o testified forRev. Kimber as a character witne ss when Rev. Kimber—th e n the man a ger of a funeral home—was pros e cuted and convicted for stealing prepaid funeral expenses from an elderly woma n and then lying about the matte r under oath. See id. , at 126a, 907a. “Reverend Kimber has played a leadership role inall of Mayor DeStefano’s politi

cal campaigns, [and] is considered a valuable politica l supporter a n d vote-get ter.” Id. , at 126a. According to th e Mayor’s former campa i gn manager (who is currently hi s executive assistant), Rev. Kimber is an invalu able politic al asset because “[h]e’s very goodat organizing people an d putting together field operations, as a result of his ties t o labor, his prominence in the religious community and hi s long-standing commitment to roots.” Id. , at 908a (internal quotation marks and alteration omitted). In 2002, th e Mayor picked Rev. Kimber to serve as th e Chairman of the New Haven Board of Fire Commissioner s (BFC), “despite the fac tthat he h a d no experience in the profession, fire administration, [or] municipal manage

ment.” Id. , at 127a; s ee als o id. , at 928a–929a. In th a t capacity, R e v. Kimbertold firefigh ters that certain new recruits would not be hired because “ ‘they just have to o many vowe ls in their name[s].’ ” Thanawala, New Have n Fire Panel Chairman Steps DownOver Ra cial Slur, Hart

ford Courant, June 13 , 2002, p. B 2

. After protests about this comment, Rev. Ki mber stepped down as chairman of the BFC, ibi d .;see also App. to Pet. for Ce rt. in No. 0 7

– 1428, at 929a, but he remained on the BFC and retained “a direct line to the mayor,” id. , at 816a. Almost immediately after the tes tresults we re revealed in “early January” 20 04, Rev. Kimber called the City’s Chief Administrative Officer, Ka ren Dubois-Walton, who “acts ‘on be half of the Mayor.’ ” Id. , at 221a, 812a. Dubois

-5 Cite as: 55 7 U

. S. ____ (2009)
ALITO , J ., con c urrin g Walton and Rev. Kimb er met privately in her office be

cause he wanted “to express his opinion” ab out the test results and “to have s o me inf l uence” over the City’s re

sponse. Id. , at 815a–816a. As dis c ussed in f u rther deta il below, Rev. Kimber ad amantly op posed certif i cation of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor. Id. , at 229a. B On January 12, 2004, Tina Bu rgett (the director of the City’s Depa rtment of Human Resources) sent an e-mail to Dubois-Walton to coord i nate the City’s response to the test results. Bu rgettwante dto clarif y that the Cit y ’s execu t iv e officials would meet “s ans the Chief, and that once we had a better fix on the next steps we would meet with the Mayor (possibly) and then the two Chiefs.” Id. , at 446a. The “two Chiefs” are Fire Chief Will iam G r ant (who is white) and Assistant Fire Chief Ronald Du mas (who i s African-Am erican). Both chiefs believed that the test results should be certified. Id. , at 228a, 817a

. Petitioner s allege, and the recordsuggests, t hat the Ma yor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; ac c o rdingly b o th men were preve n ted by t h e Mayor and his staff from making any statements regard

ing the matter.” Id. , at 228a. 1 The next day, on Jan uary 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New H a ven to meet with Dubois-Walton, Burgett, and Thomas Ude, the City’s c o rporate counsel. Id. , at 179a. “Legel outlined the merits of the examination and why cityofficials should be confident in the va lidity of th e results.” Ibid. B u t

——————

1 Although the dissent d i sputes it, see post , at 3 3–3 4, n

. 17, th e r e c o r d cert a i nly per m it s t h e inference t h a tpe ti tioners’ allegation is true. See App. to Pet. forCer t . in No. 07–14 28, p p . 846a–85 1a(depositionof Dubois-Walto n)

.6 RICCI v. D E STEFANO
ALITO , J ., con c urrin g according to Legel, D ubois -Walton was “arg umentative” and apparently had already made up her m i nd that the tests were “ ‘discriminatory.’ ” Id. , at 179a–180a. Again according t oLegel, “[a] theme” of the meeting was “ t he political an d racial overtones of w hat was going on in th e City.” Id. , at 181a. “Legel came away from the January 13, 2004 meeting with the impression tha tdefendants were already leaning toward discarding the examination results.” Id. , at 180a. On January 22, 2004, the Civil Service Board (CSB o r Board) convened its fir s t public meeting. Al most immedi

ately, Rev. Kimber began to exert political pressure on th e CSB. He began a loud, minutes-long outb urst that re

quired the CSB Chairman to shout him down and hold him out of order three times. See id. , at 187a, 467a–468a; see also Ap p. in No. 06–4996–cv (CA2), pp. A703–A705. Reverend Kimber pro t ested the public meeting, argui n g that he and the other fire commissioners should first be allowed to meet with t h e CSB in private. Ap p. to Pet. f o r Cert. in No. 07–1428, a t188a. Four days after the C S B’s first meeting, Mayor DeSte

fano’s executive aide sent an e-mail to Dubois-Walton , Burget t, a n d Ude. Id

. , at 190a. The message clearly indicated t hat the Ma yor hadma de up his m i nd to oppo se certification of the test results (but nevertheless wanted t o conceal that fact from the public): “I wanted to mak esure we are al l on the sa me page for this meeting tomorrow.

. . . [L]et’s rem em ber, tha t thes e folks are not a gainst cer tifi cation yet. So we can’ t go in and tell the m that is our position;we have to deliberate and arrive there as the fairest and most cogent outcome.” Ibid. On Februa ry 5, 2004 , the CSB convened its second public meeting. Reverend Kimber again testified and threatened the CSB with political recriminat ions if they7 Cite as: 55 7 U

. S. ____ (2009)
ALITO , J ., con c urrin g voted to cer t ify the testresults: “I look at this [Board] tonigh t. I l ookat three whites and one His p anic and no blacks.

. . . I wouldhope that you would not put yourself inthis type of position, a politicalramification that may come backupon youas you sit on this [Board] and decide the future of a department and the future of those who are being promote d

.

. . . . . “(APP LAU SE).” Id. , at 492a (emphasis added). One of the CSB members “t[ook] great offense” because he believed th at Rev. Ki mber “consider[ed] [him] a bigot because [his] face is white.” Id. , at 496a. The offended CSB memb er eventually voted no t to cer t ifythe test re

sults. Id. , a t586a–587a. One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinne y, also exacerbated racial tensions before the CSB. Id. , at 129a. After some firefighters a p plauded i n support of certifyingthe test results, “Lt

. Tinney ex

claimed, ‘Listen to the Klansmen behind us.’ ” Id. , at 225a. Tinney also has strongties to the Mayor’s of fice. See, e.g. , id. , at 129a–130a, 816a–817a

. After lear ning that he had not sco r ed well en ough on th e captain’s exam to ea rn a promotion, Tinney called Dubois-Walton and arran g ed a meeting in her office. Id. , at 83 0a–831a, 836a. Tinney alleged that the white firefighter s had cheated on their exams—an accusation that Dubois-Walton conveyed to th e Board with out first co nducting a ninvestigation into its veracity. Id

. , at 837a–838a; see also App. 164 (statement of CSB Cha i rman, noting the alleg a tions of cheating). The allegation turned out t obe baseless. App. to Pet. for Cer t

. in No. 07–1 428, at 836a. Dubois-Walton never retracte d th e cheating allegation, but she and other executive officials testified several times before the CSB. In a ccordance with direc t ions from t h e8 RICCI v. D E STEFANO
ALITO , J ., con c urrin g Mayor’s office to make the CSB m eetings appear deliber a tive, see id. , at 190a, executive officials remained publicly uncommitted about certification—while simultaneously “wor k[ing] as a team” behind closed doors with the secre

tary of the CSB to dev i se a politic al message that would convince the CSB to vote against certification, see id. , at 447a. At the public CSB meeting on March 11, 2004, for example, Corporation Counsel Ude bristled at one board member’s suggestion that City officials were recommend

ing against certifying the test results. See id. , at 215a (“Atto rney Ude tookoffense, stating, ‘Frankly, because I would never make a recomme ndation—I wou l d not have made a recommendation like that’ ”). Bu t within days of making th at public s t atement, Ude pri v ately told other members of the Mayor’s team “the ON LY waywe getto a decision notto certify is” to focus on something other tha n “a big disc ussion re: adverse impact” la w. Id. , at 458a– 459a. As par tof it s effort to d e flect atten t ion from th e specifics of the test, the City relied heavily on the testimony of Dr. Christopher H o rnick , who is one of Chad Lege l’s competi

tors in the test-developmentbu siness. Hornick never “stud[ied] the test [that Legel developed] at length or in detail,” id. , at 549a; s ee als o id. , at 203a, 553a, but Hor

nick did review and rely upon literature sent to him by Burget t to criticize Legel’s test. For example, Hornick “noted in the literature that [Burgett] sent that the test was not cus t omized to the New Haven Fire Departmen t.” Id. , at 551a. The Chairman of the CSB imm e diately cor

rected Hor n ick. Id. , at 552a (“Actually, it was, Dr. Hor

nick”). Hornick also relied on new s paper acco unts—agai n, sent to him by Burg ett—pe rtai n ing to the controversy surrounding the certif i cation decision. See id

. , at 204a, 557a. Although Hornick again a d mitted th at he had no knowledge about the actual te stt hat Legel h a d developed and that th e City had administered, see id. , a t560a–561a,9 Cite as: 55 7 U

. S. ____ (2009)
ALITO , J ., con c urrin g the City r e peatedly relied upon Hornic k as a testing “guru” an d, in the CSBChairman’s words, “th e City ke[pt ] quoting him as a p e rson that we shou ld rely upon more than anybody else [to conclude that there] is a better way—abetter mousetrap.” 2App. in No. 06–4996–cv (CA2), at A1128. Dub o is-Walton later admitted that th e City rewar d ed Hornic k for his testimony by hiring him to develop an d administer an alter native test. App. to P e t. for Cert. in No. 07–14 28, at 854a ; see also id

. , at 562a– 563a (Horn i ck’s plea for future bu siness fromthe City on the basis of his criticisms of Legel’s tests). At some point prior to the CSB’s public meeting on March 18, 2004, the Mayor deci ded to use his executive authority t odisregardthe test r e sults—eve nif t h e CSB ultimately voted to certify them. Id. , at 819a–820a. Ac

cordingly, o nthe evening of March 17th, Du bois-Walton sent an e- mail to the Mayor, the Mayor’s executive assi s tant, Bu rge tt, and a tto rney Ude, a ttaching two alternativ e press releases. Id. , at 457a. The first would be issued if the CSB vo ted not to certify th e test results; the secon d would be issued (and would explain the Mayo r’s invocatio n of his executive authority) if the CSB voted to certify t h e test results. Id. , at 2 17a–218a, 590a–591a, 819a–820a

. Half an hour after Du bois-W alton circulated the alterna

tive drafts, Burgett re plied: “[W]ell, that seems to say it all. Let’s h o pe draft #2 hits the shredder tomorrow nite.” Id. , at 457a.

——————

2 The City’s he avy reliance on Ho r n i c k’ s testi m onyma kes the two chiefs ’ s ilence a l l t h e m o re s t riking. S e e supra , at 5. While Hornick knew little ornothingabout the tests he c r iticized, the two chiefs were involved “duri n g thelengthy pro c ess that led to the d e v i singof the adminis t r a tio nof these ex a m s,” App. to Pet. forCer t . in No. 07 –14 2 8 , at 8 47a, in c l u d in g“c ollabor a tin gwithCit yoffic i als onth e ex ten s iv e job analyses that were done ,” “selection of the oral panelist s , ” and selection of “the proper content and su bject matter of the exams, ” id. , at 8 47a– 848 a.10 RICCI v. D E STEFANO
ALITO , J ., con c urrin g Soon after the CS B v o ted against certifica tion, Mayo r DeStefano appeared at a dinne r event and “ t ook credit f o r the scu[tt]ling of the examination results.” Id. , at 230a. C Taking int oaccount all the evidence in the summary judgment record, a reasonable jury could find the follow

ing. Almost as soonas the Ci ty disclosed the racial mak e up of the list of fir e fighters who scored the highest on the exam, the City a d ministration was lobbied by a n influential community leader to sc rap the test results, and the City administration decide d on that course of action before making any real asses s ment of the p o ssibility of a disparate-impact violation. Toachieve that end, the Ci ty administration concealed its internal decision bu t worked—as things tur n ed out, successfully—to persuad e the CSB th at acceptan ce of the test results would be ille

gal and would expose the City to disparate-impact liabil

ity. But in the event that the CSB was not persuaded, the Mayor, wie l ding ultimate decisionmaking a u thority, was prepared to overrule the CSB immediately. Tak i ng this view of the evidence, a reasonable jury could easily find that the City’s real re ason for scrapping the test result s was not a concern about violatin g the disparate-impact provision of Title VII b u t a simp le desire to please a politi

cally impor t ant ra cial constituency. It is not e worthy th at the Solicitor General—whose position on th e principal legal issue in this case is largely aligned with the di s sent—concludes that “[n]either the district court nor the court of appeals .

. . a d equately considered whether, vi ew ing the evidence in the light most favorable to petitioners, a genuine issue of material fact remained whether respon

dents’ claimed purpo s e to comply with Tit l e VII was a pretext fo r intentional racial discrimination .

. . .” Brief for United States as Amicus Curi ae6; see also id., at 32 – 33.11 Cite as: 55 7 U

. S. ____ (2009)
ALITO , J ., con c urrin g III I will not co mment at l e ngth on the dissent’s criticism of my analysis, but two po ints require a response. The first concerns the dissent’s statement that I “equat[e] political con s iderations with unlawful discrimi

nation.” Post , at 36. The dissent misrepresents my posi

tion: I draw no such eq uation. Of course “there are man y ways in wh ich a politic ian can attempt to win over a con

stituency—i n cluding aracial constituency—w ithout en

gaging in u n lawful discrimination.” Post , a t 36–37. But— as I assu me the dissent would agree—there are some things that a public official cannot do, and one of those is engaging in intention a l racial discrimination when mak

ing employment decisions. The second point concerns the dissent’s main argu

ment—that efforts by the Mayor and his sta ff to scuttle the test results are irrelevant bec ause the ultimate deci

sion was made by the CSB. Accordin g t othe dissent, “[t]he relev ant decision was made by the C S B, ” post , at 34 , and there is “scant ca use to suspect” that a n ything do ne by the opponents of cert ification, including th e Mayor an d his staff, “prevented th e CSB from evenhandedly assess

ing the reli ability of the exams and rendering an inde

pendent, good-faith decision on certification,” post , at 36. Adoption of the dissent’s argument would implicitly decide an important q u estion of Title VII law that th is Court has never resolved—the circumstance s in which an employer may be held liable bas e don the discriminatory intent of subordinate employees who influenc e but do no t mak ethe ultimate employment decision. There is a large body of court of appeals case law on this issu e, and thes e cases disagree about the proper standard. See EEOC v. BCI Coca-Cola Bottling Co. of Los Angele s , 450 F. 3d 476, 484–488 (CA10 2006 ) (citing ca ses and describing th e approaches taken in different Circuits). One standard is whether th e subordinate “exerted influenc[e] over the12 RICCI v. D E STEFANO
ALITO , J ., con c urrin g titular deci sionmaker.” Russell v. McKinney Hosp. V e n ture , 235 F. 3d 219, 2 27 (CA5 2000); see als o Polandv. Cher toff , 49 4 F. 3d 117 4, 1182 (CA9 2007) (A s ubordinate’s bias is imputed to the employer where the subordinate “influenced or was involved in the decisionor decision

making pro c ess”). Another is whether the discriminatory input “caus ed the adv e rse employment actio n .” See BCI Coca-Cola Bottlin g Co. of Los Angeles , sup ra , a t487. In the pres ent cases, a reasonable jury could certainl y find that these standards were met. The dissent makes much of the fact that members of the CSB swore under oath that t h eir votes were based on the good-faith belief that certification of the results would have violated federal law. See po st , at 34. But the good faith of th e CSB mem

bers would not preclu de a finding that the presentations engineeredby the Mayor and his staff influenced or caused the CSB decision. The least employee-friendly standard asks only whethe r “the actualdecisionmaker” a cte d withdi scriminatory intent, see Hill v. Lock heed Mar t i nLogisti cs Managem e nt, Inc ., 354 F. 3d 277, 291 (CA4 20 04) (en banc), and it is telling that, even under this standard, summary judgment for respondents would not be prop er. This is so becaus e a reasonable jury could certainly fi nd that in New Have n, the Mayor

—not the C S B—wielded the final decisionmak

ing power. After all, the Mayor claimed that authorit y and was poised to use i tin the event thatthe CSBdecide d to accept t h e test results. See supra , at 9. If the Mayor had the authority to overrule a CSB decision acce ptin g

the test results, the Mayor also presumably had the authority to overrule the CSB’s d e cision rejecting the test results. In light of the Mayor’s conduct, it would be quite wrong to throw out petitioners’ case on th e ground t hat the C S B was the ultimate decisionmaker.13 Cite as: 55 7 U

. S. ____ (2009)
ALITO , J ., con c urrin g * * * Petitioners are firefighters who seek only a f a ir chance to move up the rank s in their chosen professio n . In order to qualify for promotion, they made personal sacrifices. Petitioner FrankRicci, who is dyslexic, foundit necessary to “hir[e] someone, at considerable expense, to read on to audiotape the content of the book s and study materials.” App. to Pet. for Cert. in No. 07–142 8, at 169a. He “studied an average of eight to thirteen hours a da y . . . , even listening to audio tapes while driving his car.” Ibid. Petitioner Benjamin Vargas, who is Hispanic, had to “give up a part-ti m e job,” and his wife had to “ta ke leave from her own jo b in order to take car eof their t h ree young children while Vargas studied.” Id. , at 17 6a. “Vargas devoted countless hou r s to study .

. . , missed two of hi s children’s birthdays an d over two weeks of va cation time,” and “incurred significant financial expense” during th e three-month study peri od. Id. , at 1 76a–177a. Petitioners were denied promotions for which they qualified because of the race and et hnicity of t h e firefight

ers who achieved the highest scores on the City’s exam. The District Court t h rew ou t their case on summary judgment, even though that court all but conceded that a jury could find that the City’s a sserted justification was pretextual. The Court of Appe als then s u mmarily af

firmed that decision. The dissent grants tha tpetitioners’ situation is “unfor

tunate” and that they “under standably attract this Court’s sympathy.” Post , at 1 , 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to de mand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until tod a y’s decision, has b e en denied them._________________

_________________ 1 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting 

## SUPREME CO URT O FTHE UNI TED STATES

Nos. 07– 14 28 an d 08– 328 FRAN K RI CCI, ET AL ., PETITIONERS 07–1428 v. JOHN D E STEFANO ET AL
. FRAN K RI CCI, ET AL ., PETITIONERS 08–328 v. JOHN D E STEFANO ET AL
. ON WRITS OF CERTIORARI TO THE UNITED STAT ES COURT OF APPEAL S FOR THE SECO ND CIRCUIT [Ju n e29, 2009 ] J USTICE G IN S B UR G , with whom J USTICE S TE VENS , J US

TICE S OUTER , and J UST I CE B REYE Rjoin, dissen t ing. In assessing claims of race discr i mination, “[c]ontex t matters.” Grutte rv. Bollinger , 5 39 U. S. 306, 327 (200 3). In 1972, Congress extended Title VII of the Civil Righ ts Act of 196 4 to cover public employment. At that ti me, municipal fire depart ments acro ss the coun try, including New Have n’s, pervasi v ely di scri minated against minori

ties. The e x tension of Title VII to cover jobs in firefighting effected no overnight change. Ittook decades of persistent effort, adva nced by Titl e VII litigation, to openfirefighting posts to members of racial minorities. The white firefighters who scored high on New H a ven’s promotional exams understandab ly attra ctthis Cour t’s sympathy. But they had no ves t ed righ t to promotion. Nor have other persons received promotions inpreference to them. New Haven maintains that it refused to certify the test res u lts because it belie ved, for good cause, that it would be vulnerable t oa Title VII disparate-impact suit if it relied on those result s. The Court today holds that New2 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting Haven has not demons trated “a strong basis in evidence” for its plea. Ante , at 2. In s oholding, the Court pretends that “[t]he City rejecte d the te st results solel ybecause the higher scoring candidates were white.” Ante , at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of mult iple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other ci ties, which have yielded l e s s racially skewed outcomes. 1 By order o f this Court, New Ha ven, a cityin which African-Am ericans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire de

partment i nwhichm e mbers of racial and e t hnic minori

ties are rar e ly seen in command p o sitions. In arriving at its order, th e Court bar ely acknowl e dges the p a thmarking decision in Grig gsv. Duke Power Co. , 401 U. S. 424 (197 1), which explained the centrality of the disp arate-impact concept to effective enforcementof Title VII. The Court’s order and opinion, I anticip ate, will not have staying power. I A The Court’s recitation of the facts leaves out importan t parts of the story. Fire fighting is a profession in which the legacy of racial discrimination casts an especially long shadow. Inextending Title VII to state and local govern

ment employers in 19 72, Congress took note of a U. S

.

——————

1 Nev e rmind the flawed te st s New Hav e n used and the better selec

tion methods used elsewhere, J US TI CE ALI TO ’s conc ur rin gopinion urge s . Over riding a ll els e , ra cia lpolit ics , fired up b yas t ridentAfrica nAmerican pas t or, were at wo rk in Ne w Haven. S ee ante , at 4–9. Ev en a det a ched and disinterest e d obse rver, howeve r, wou l d have every rea s on t oas k: Why did s u ch ra cia lly s k ewed res u lt s occu r in New Haven, when better tests li kely would have produced less di spropor tionate results?3 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting Commission on Civil R i ghts (U SC CR) report f i nding raci al discrimination in m unicipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92– 238, p. 17 (1971). According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employme nt principles. In making hiring and promotion decision s, public employers often “rel[ied] on criteria unrelated to jo b performanc e,” including nepotism or political patronage. 118 Cong. Rec. 1817 ( 1972). Such flawed selection meth

ods served to entrench preexisting racial hier archies. The USC CR rep o rt singled out police and fire dep a rtments for having “[b]arriers to equal employment .

. . greater .

. . than in any other area of State or l o cal government,” with African-Am ericans “hold[ing] almost no pos i tions in th e officer ranks.” Ibid

. See alsoN a tional Co mmissiono n Fire Preve n tion and Control, America Burning 5 (19 73) (“Racial minorities are under-represented in the fire de

partments in nearly every community in which they live.”). The city of New Haven(City) was no exception. In th e early 1970’s, African-Americans and Hispan ics composed 30 percent of New Ha ven’s popul a tion, but only 3.6 per

cent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107 officers in th e Department only on e was black , and he he l d the lowest rank above private.” Firebi r dSoc. of N e w Hav e n, Inc. v. Ne w Ha ven Bd. of FireComm’rs , 66 F. R. D. 457, 460 (Conn. 1975). Following a lawsuit and settlement agreement, see ibid. , the Cityinitiated efforts to increa s e minority representa

tion in the New Hav e n Fire Department ( D epartmen t). Those litig ation-induced efforts produced some positive change. New Haven’s populationincludes agreater pro

portion of minorities today thanit did in the 1970’s: Nearly 40 percent of the City’s residents are African

-4 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting American and more than 20 percent are Hispanic. Amon g entry-level firefighters, mino rities are still underrepr e sented, but not starkly so. As of 2003, Africa n-American s and Hispan ics constituted 30 percent and 16 percent of the City’s fi refighters, res p ectively

. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-Am erican and nine percent Hispanic. Only one o f the Department’s 21 fire captains is African-American. See App. in No. 06–49 96–cv (CA2 ), p. A1588 (hereinafter CA2 App.). It is ag ainst this backdrop of entrenched inequality that the promotion process at i ssue in thi s litigation s h ould be as sessed. B By order of its charter, New H aven must use competi

tive examinations to fill vac ancies in fire offic e r and other civil-service positions. Such exami nations, the City’s civil service rules specify, “shall be practical in nature, shall relate to matters whic h fairlymeasure the relative fitness and capacity of the applicants to discharge the duties of the position which theyseek, and shall take into account character, training, experien ce, physical and mental fit

ness.” Id ., at A331. The City ma y choose among a vari ety of testing methods, including wri tten and oral exams and “[p]erformance tests to demonstrate skill and ability in performing actual work.” Id. , at A332. New Have n, the record indi cates, did not closely con

sider whatsort of “p ractical” ex amination would “fair l y measure the relative fitness and capacity of t h e applicants to discharg ethe duties” of a fire officer. Instead, the City simply adhered to the testing regi me outlined in its two

decades-old contrac t with the local firefighters’ union: a written exa m , which would account for 60 percent of an applicant’s total score, and anoral exam, which would account forthe remaining 40 per c ent. Id., at A1045. In5 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting soliciting b i ds from exam development companies, New Haven mad eclear thatit would entertain only “proposals that include a written componen t that will be weighted at 60%, and an oral component t hat will be weighted at 40%.” Id., at A342. Chad Legel, a representative of the winning bi dder, Indus trial/Organizational Solutions, Inc. (IOS), testified during his de position that the Citynever asked whether alternative me thods might better measure the qualities of a succe ssful fire officer, including leader

ship skills and command presence. See id., at A522 (“I was under contract an d had resp onsibility only to creat e the oral interview and the written exam.”). Pursuant to New Haven’s specifications, IOS develope d and administered the oral and written exams. The results showed significant racial disparities. On th e lieutenant exam, the pass rate fo r Af rican-A m erican ca ndidates was about one-h a lf the rate for Caucasi an candidates; the pass rate for Hi spanic can d idates wa s even lower. Onth e captain exa m , both African-American and Hispanic candi

dates passed at abou thalf the rate of the i r Caucasia n counterparts. See App. 225–226. More striking s t ill, although nearly half of the 77 lieutenant candidates were African-Am erican or Hispanic, none would have been eligiblefor promotion to the e i ght positions th en vacant. The highest scoring African-Ame r ican candi d ate ranke d 13th; the top Hispani c candida t e was 26th. As fo r th e seven then-vacant ca ptain positions, two His p anic candi

dates would have been eligible, b u t no African-Americans. The highest scoring African-Ame r ican candi d ate ranke d 15th. See id., at 218–219. These starkdisparities, the Co urt ack n owledges, suf

ficed to sta t e a prima facie case under Title VII’s dispa

rate-impact provision. See ante , a t27 (“The pass rates of minorities . . . f[e]ll well below the 80-percent standard set by the [Equal Employment Opportunity Commission (EEOC)] to implementthe disparate-impact provision o f6 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting Title VII.”). New Have n thus had cause for concern about the prospect of Title VII litigation and liability. City officials referred the matter to the New Haven Civil Ser

vice Board (CSB), the entity resp onsible for certifying t h e results of e m ployment exams. Between J anuary and March 20 04, the CSB held five public meet ings to consider the proper course. At the first meeting, New Ha ven’s Corporatio n Counsel, Thomas Ude, described t h e legal standard gover n ing Title VII disparate

impact claims. Statistical imbalances alone, Ude correct l y recognized, do not give rise to liabi lity. Instea d, presented with a disparity, an employer “has the opportunity and the burden of proving that the test is job-related and consis

tent with b u siness n e cessity.” CA 2 App. A72 4

. A Title VII plaintiff may attempt to rebut an employer’s showing of job-relatedness and necessity by identifying alternative selection m e thods that would have been at least as valid but with“le ss of an adverse or disparate or dis criminatory effect.” Ibid

. See also id ., at A73 8

. Accordingly, the CS B Commissioners understood, their principal task was to decide whet her they we re confident about the r e liability of the exams: H a d the exams fairly measured the qualities of a successful fire officer despit e their disparate results ? Might an alternative examinat ion process have identifie d the most q ualified candidates wi thout c r eating such si g nificant racial imbalan ces? Seek ing a range of input on these questions , the CSB heard from test takers, the test designer, subject-matt er experts, Ci ty officials, union lea d ers, and community members. Several candidates for promotion, who did no t yet k n ow their exam r e sults, spok e at the CSB’s first two meetings. Some candidates favored certification. The exams, they emphasized, had clos ely track ed the assigne d study materials. Having invested substantial time an d money to prepare th emselves for the test , they feltit would be u n fair to sc rap the results. See, e.g. , id., at7 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting A772–A773, A785–A789. Other firefi ghters had a different view. A nu mber of the exam questions, they pointed out, were not germane to New Ha ven’s practices and procedures. See, e.g. , id., at A774–A784. At least two candida t es opposed to certifica

tion noted unequal access to study materials. Some indi

viduals, they asserted, had the necessary books even before the syllabus was issued. Others ha d to invest substantial sums to purchase the materials and “wait a month and a half for s o me of the books because they were on back

- order.” Id., at A858. These disp arities, it wa s suggested, fell at leastin part along racial lines. While many Caucasian applicants could obtain ma terials and assistance from relatives in the fire service, the over

whelming majority of minority applicants were “first

generation firefighters” with out such suppor tnetworks. See id., at A857–A861, A886–A887. A representative of the Northeast Region of the Interna

tional Association of Black Pr ofessional Firefighters , Donald Da y, also spoke at the seco nd meeting. Statistical disparities, he told th e CSB, had been present in th e Department’s previous promotional exams. On earlier tests, however, a few minori ty candidates had fared well enough to earn promotions. Id., at A828. See also App. 218–219. Day contra sted New Haven’s experience with that of nearby Brid geport, where m i nority firefighters held one-third of lieutenant and captainpositions. Bridgeport, Day observed, had once used a te sting proce ss similar t o New Ha ven’s, with awritte n e x am accou n ting for 70 percent of an applicant’s score, a noral exam for 25 per

cent, and seniority for the re maining five percent. CA 2 App. A830. Bridgeport recogn ized, however, that the oral component, more so than the written component, ad

dressed the sort of “rea l -life sc enarios” fire officers encoun

ter on the job. Id., at A832. Accordingl y, that city “changed th e relative weights” to give primacy to the oral8 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting
exam. Ibid

. Since t hat time, Day report ed, Brid geport had seen minorities “fairly repr esented” in its exam re sults. Ibid

. The CSB’s third meeting feature dIOS representative Legel, the leader of the team that had designed and ad

ministered the exams for New Haven. Seve ral City offi

cials also participated in the discussion. Legel described the exam developmen t process i ndetail. The City, he recounted, had set the “parameter s” for the ex ams, specifi

cally, the requirement of writte n and oral components with a 60/4 0 weighting. Id., at A9 23, A974. For security reasons, Department o fficials had not been permitted t o check the c o ntent of the questions prior to t h eir admini

stration. Instead, IOS retained a senior fire officer from Georgia to review the exams “for content and fidelity to the source material.” Id., at A9 36. Legel defended the exams as “facially neutral,” and stated that he “would stand by the[ir] validity.” Id., a t A962. City officials did not dispute the neutrality of IOS’s work. B u t, they ca u tioned, even if individual exam questions ha d no intrins ic bias, the s e lection pr ocess as a whole may neverthele ss have been deficient. The officials urged the C S B to consult with expert s about the “larger pic t ure.” Id., at A1012. At its fourth meeting, CSB solicited the views of three individuals with testing-rela ted expertise. Dr. Christ o pher Horn ick, an industrial/organizational psychology consultant with 25 yea r s’ experience with police and fire

fighter test ing, descri bed the exam results as having “relatively high adverse impact.” Id., at A1028. Most of the tests he had developed, Hornick sta t ed, exhibited “significantly and dra m atically less adverse impact.” Id., at A1029. Hornick downplayed the notion of “facial neu

trality.” Itwas more important, he advised the CSB, t o consider “the broaderissueof h o w your procedures a n d your rules and the types of tests that you a r e using are contributing to the adv e rse impact.” Id., at A1038.9 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting Specifically, H o rnickquestioned New H a ven’s union

prompted 6 0 /40 writte n/oral examination structure, noting the availab ility of “dif ferent types of testing procedure s that are m u ch more valid in terms of identifying the best potential supervisors in [the] fir edepartme n t.” Id., at A1032. He suggested, for example, “an assess ment center process, wh ich is essen t ially an opportunity for candida t es

. . . to demonstrate how theywo uld address a particular problem as opposed to j u st verbally saying it oridentifying the correct option on a written test .” Id., at A 1039–A1040. Such selection process e s, H o rnick said, better “identif[y] the best possible people” and “demonstrate dramaticall y less adverse impacts.” Ibid

. Hornick added: “I’ve spoke nto at lea s t 10,000, maybe 15,000 fire

fighters in group setti ngs in my consulting practic e and I have never one ti me ever ha d anyone inthe fire service sayto me, ‘W ell, the person who answers— gets the hi ghest score on awritten job k n owledge, multiple-guess test ma kes the bes tcompany officer.’ We know that it’s not as valid as other procedures that exist.” Id., at A1033. See also id., at A1042–A1043 (“I think a pers on’s leader

ship skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appro

priate way. ”). Hornick de scribed the writte n test itself as “reasonably good,” id., at A1041, b u t he criticized the de cision not to allow Department offic i als to ch eck the conte n t. Accor d ing to Hornic k, this “inevitably” led to “test[ing] f o r processes and procedures that don’t necessarily matchup into th e department

. ” Id., at A1034–A1035. He preferred “experts from within the department who have signed confidential

ity agreements .

. . to make sure that the ter m inology and equipment that’s being identified f r om standardized read

-10 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting ing sources apply to the department.” Id., at A1035. Asked whe t her he thought the C i ty should certify the results, Hornick hedge d : “There is adverse impact in t h e test. That will be identified in a n y proceeding that you have. Youwill have industrial psychology experts, if it goes to court, on both s i des. And i twill not be a pretty o r comfortable position for anyone to be in.” Id. , at A1040– A1041. Pe rhaps, he s u ggested, New Havenmight certify the results but immediately begin exploring “alternative ways to de al with th ese issues” in the fut u re. Id., at A1041. The two other witnesses made relatively brief appear

ances. Vincent Lewis, a specialist with the Department of Homeland Security an d formerfire officer in Michigan, believed th e exams ha d generallytested relevant material, although he noted a relatively heavy empha s is on ques

tions pertaining to being an “a pparatus dri v er.” He su g gested that this may have disadvantaged test takers “who had not had the training or had n o t had an opportunity to drive the a p paratus.” Id., at A1 051. He also urged th e CSB to con s ider whether candidates had, in f a ct, enjoyed equal acces s to the study materials. Ibid

. Cf. supra , at 7. Janet Helms, a professor of counseling psychology at Boston College, observed that two

- thirds of the incumbent fire officers who submitted jo b analyses to IOS durin gthe exam design phase were Caucasian. Members of different racial group s , Helms told the CS B, sometimes do their jobs in different ways, “ofte nbecause the experiences that ar e open to white male firefighters are not open to members of these other under-repre sented grou ps.” CA2 App. A1063– A1064. Th e heavy reliance on job analyses from white firefighters, she suggested, may thus have introduced an element of bias. Id., atA1063. The CSB’s fifth and final meeting began with state

ments from City officia l s re commending agai nst certific a tion. Ude, New H aven’s counsel, repeated the applicable11 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting disparate-impact stan dard: “[A] finding of adverse impact is the beginning, not the end, of a review o f testing procedures. Where a procedure demonstrates adverse impact, youlook to how closely it is related to the job that you’re looking to fill and you also look at whether there are other ways to test for those qualities, those traits, those po

sitions that are equally valid with less adverse im

pact.” Id., at A1100–A1101. New Have n, Ude and other offic i als ass e rted, would be vulnerable to Title VII liability under this standard. Even if the exam s were “facially neutral,” significant doubts ha d been raised about whether they properly assessed the k e y attributes o f a suc c essful fire officer. Id., at A1103. See also id ., at A1125 (“Upon close reading of the exams, th e questions themselves would appe ar to test a candidate ’ s ability to memorize textbooks but not necessarily to iden

tify solutions to real problems on the fire gro und.”). Mor e over, City officials remi nded the CSB, H o rnickand others had identified better, less di scriminatory selection meth

ods–such as assessment centers or exams with a mo re heavily weighted oral component. Id., at A1108–A1109, A1129–A1130. After givin gmembers of the public a final chance to weigh in, t h e CSB vot e d on certification, dividing 2 to 2. By rule, th e result was nonce rtification. Voting no, Com

missioner Webber stated, “I originally was going to vote to certify. .

. . But I’ve heard en oughtestimony here to giv e me great doubts about the test itself and .

. . some of the procedures. And I believe we can do better.” Id., at A1157. CommissionerTirado likewise conclu ded that the “flawed” te sting proce ss couns eled against certification. Id., at A1158. Chairman Sega loff and Commission er Caplan voted to certify. Acco rdi n g to Segaloff, the test i

mony had not “compelled [him] to say this ex am was not12 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting job-related,” and he was uncon vinced tha talternati v e selection processes would be“less discriminatory.” Id., at A1159–A1160. BothSegalhoff and Capl an, however, urged the City to undertakecivil service reform. Id., at A1150–A1154. C Following the CSB’s vote, petitioners—17 white fire

fighters an d one Hispanic firefighter, all of whom had high mark s on the exams—filed suit inthe United States Dis

trict Cour t for the District of Connecticut. Th ey named as defendants—respondents here

—t he City, several City officials, a local political activist, and the two CSB me m bers who voted against certifying t h e results. By opposing certification, petitioners alleged, respondents had dis

criminated against the min violation of Title VII’s dispa

rate-treatm e nt provision and th e Fourteenth Amend

ment’s Equal Protection Clause. The decision not t o certify, resp ondents answered, wa s a lawful effort to com

ply withTi tle VII’s disparate-impact provis ion and th us could not have run afoul of Title VII’s prohibition of disp a rate treat ment. Characterizin grespondents’ statedra tionale as a mere pre t ext, petitio n ers insisted thatNew Haven wou l d have had a solid d e fense to a n y disparate

impact suit. In a decision summarily affirmed bythe C o urt of Ap peals, the District Co urt grantedsummary judgment f o r respondents. 554 F. S u pp. 2d 142 (Conn. 200 6), aff’d, 530 F. 3d 87 (CA2 2008) (per curi am)

. Under Se cond Circui t precedent, the Distric tCourt ex plained, “the intent to remedy the disparate impact” of a promotional exam “ i s not equivalent to an intent to discriminate against non

minority a p plicants.” 554 F. Su pp. 2d, at 157 (quoting Hay denv. County of Nassau , 180 F. 3d 42, 51 (CA2 1999)). Rejecting petitioners’ pretext a r gument, t h e court ob

served thatthe exam r e sults were sufficiently skewed “to13 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting make out a prima facie case of discrimination” under Title VII’s disparate-impact provision. 554 F. Supp. 2d, at 15 8. Had New Haven gone forward wi th certificat i on and been sued by aggrieved minority testtakers, th e City wou l d have been forced to def e nd te sts that were presumptively invalid. And, as the CSB testimony of H o rnick and othe rs indicated, overcoming that presum ption would have been no easy tas k

. Id ., at 153–156. Given Title VII’s preference for voluntary compliance, the court held, New Haven could lawfully dis c ard the di sputed exams even if the City had not definitively “pinpoint[ed]” the source of the disparity and “ha[d] not yet formulated a better selection method.” Id ., at 156. Respondents were no doubt conscious of race duri n g their decisionmaking p r ocess, the court ac kno w ledged, bu t this did not mean they had enga ged in racial ly disparate treatment. The conclusion theyhad reached and the action thereupon taken were rac e -neutral in this sense: “[A]ll the test results were discarded, no one was pro moted, and firefighters of every race will have to parti ci

pate in another selec t ion process to be considered for promotion.” Id ., at 15 8. New Ha ven’s action, which gave no individu al a preference, “was ‘simply not a nalogous to a quota system or a minority set-aside where candidates, on the basis of their race, are not treated uniformly.’ ” Id ., at 157 (quoting Hay den , 180 F. 3d, at 50). For these and other reasons, the court alsorejected petitioners’ equal protection claim. II A Title VII became effective in Ju ly 1965. Employers responded to the law by eliminating rules and prac tices that explicitly barred racial mi norities from “white” job s . But removi ng overtlyr a ce-basedjob classifications did not usher in genuinely equ a l oppo rtun i ty. More subtle—and14RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting sometimes unconscious—forms of discrimination replaced once undisguised restrictions. In Grig gsv. Duke Power Co. , 401 U. S. 424 (1971), thi s Court resp onded to t hat realityand suppl ied important guidance on Title VII’s mission a n d scope. Congress, the landmark decision recognized , aimed beyon d“disparate treatment”; it tar g eted“disparate impact” as well. Titl e VII’s original text, it was plain to the Court, “ p roscribe[d] not only ov ert discrimination but also practices that are fair in form, but discri minatory in operation.” Id ., at 431. 2 Only by ignoring Gri ggs could one maintain that inten

tionally disparate t r eatment alone was Title VII’s “origi

nal, foundational prohibition,” a n d dispara t e impact a mere afterthought. Cf. ante , at 21. Grig gsadd r essed Duke Power C o mpany’s p o licy th a t applicants for position s, save in the company’s labor de

partment, be high school graduates and score satisfacto

rily on two professionally prepared aptitude tests. “[T]here was no showing of a di scriminatory purpose i n the adoption of the diploma and test requirements.” 401 U. S., at 428. The p o licy, ho wever, “operated to render ineligibl ea markedly dispro portionate number of [Africa n Americans].” Id ., at 42 9. At the time of the litigation, in

——————

2 Th e Cou r t’ s dispar a t e-imp a c tan aly s is re sted on two provisions of Title VII: §703(a)(2), which made itunlaw ful for an emp l oyer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individu al of employment opportunities or other

w i se adv e r s el yaffec th i s statu s a s an employee, because of such indi

v i du al’ s r a c e , c o lor , r e ligion, sex , orn a tion al or igin”; an d §703(h) , wh ic h per m ittedem ploy er s “to ac t upon th e r e sults of anyprofessionall y developed abi lity te stprovided thatsu c htes t , it s adm i n i str a t i onor action upon the results is not design ed, intended or used to d i scrimi

na t eb e ca us e of ra ce, color, religion, s e x or na t i ona lorigin.” Griggsv. Duke Powe r Co. , 401 U. S. 4 24, 42 6, n

. 1 ( 197 1) (qu o tin g78 Sta t . 25 5, 42 U. S. C. §2 000e–2(a)( 2 ), (h) (1964 ed .)). See al so 40 1 U. S., at 43 3 – 436 (ex p l a in in gth at §70 3 (h) au th or izes on lytests th at a r e “demon str a blya r e ason ab le measu r e of job per f or man c e”).15 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting North Ca rolina, where the Duke P o wer plant was located , 34 percent of white males, but only 12 percen tof African

American males, hadhigh school diplomas. Id ., at 43 0, n. 6. African-American s also fa iledthe aptitude tests at a significantly higher ra te than wh ites. Ibid

. Neither re

quirement had been “s hown to be ar a demon s trable rela

tionship to successful performance of the jobs for which it was used.” Id ., at 431. The Court unanimou s ly held that the com p any’s di

ploma andtest requirements violated Title VII. “[T]o achieve equality of employmentopportunities,” the Cou r t comprehended, Congre ss “directedthe thrust of the Actt o the consequencesof employment practices, not simply the motivation.” Id ., at 4 29, 432. That meant “unnecessary barriers to employment” must fall, evenif “neutral on their face” and “neutr al in terms of intent.” Id ., at 430, 431. “The touchstone” for de termining whether a test or qualification meets Tit l e VII’s m e asure, the Court said, is not “good in tent or the absence of discriminatory intent”; it is “busines s necessity.” Id ., at 43 1, 432. Ma tching proce

dure to substance, the GriggsC o urt observed, Congress “placed on the employ er the burden of sh owing that any given requirement .

. . ha[s] a man i fest relationship to th e employmen tin question.” Id ., at 432. In Albe marlePape r C o . v. Moody , 422 U. S. 4 05 (1975), the Court, again with out dissent, elaborated on Gri g

gs . When an employment test “sele ct[s] applicants for hire or promotion in a racial pattern sig n ificantly d i fferent from the pool of applicants,” the Co urt reiterated, the employer must demonstrate a “ m anifest relationship” between test and job. 422 U. S., at 425. Such a showing, the Court cautioned, does not necessarily mean the employer pre

vails: “[I]t r e mains open to the co mplaining partyto sh ow that other tests or selection devices, without a similarly undesirable racial effec t , woul d also serve th e employer’s legitimate interest in ‘effi cient and trus t wor t hy wor k ma n -16 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting ship.’ ” Ibid

. Federal tri al and app e llate courts applied Grig gs an d Albemarl e to disallow a host of hiring and promotion practices that “operate[d] as ‘bui lt in headwinds’ for mi

nority gr oups.” Gr iggs , 401 U. S. , at 432. Practices dis

criminatoryin effect, courts repeatedly emphasized, could be maintai n ed only u p on an em ployer’s showing of “an overriding and compelling business purpose.” Ch ris n er v. Complete Aut oT ransit, Inc. , 645 F. 2d 1251, 1261, n. 9 (CA6 1981). 3That a pr actice served “legitimate manage

ment functions” did not, it wa s generally understood, suffice to establish business necessity. Willi amsv. Colorado Sprin gs, Colo., School Dist. , 641 F. 2d 835, 840–8 41 (CA10 1981 ) (internal quotation marks omitted). Amo n g selection methods cast aside for lack of a “m anifest rela

tionship” to job performance we re a numb e r of written

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3 See also Dothardv. Rawlinson , 433 U. S. 32 1, 33 2, n

. 1 4(19 77) (“a disc r i minator yemploy ment pr ac tic emust be shown to b enec e ssar yto safe and efficient job performance to survive a Title VII challenge”); Williams v. C o lorado Spri n gs, Colo., Sc h ool Dist ., 641 F. 2d 835, 840 – 841 (CA 10 1 9 81) (“Th e ter m‘ n ec essity ’ con n o tes th at th e exc l u s ion a ry pr ac tic emust be shown to be of gr eat impor t anc eto job per f or manc e.”); Kirbyv. Colon yFurn itu re C o . , 613 F. 2d 696, 705, n

. 6 (CA8 1 980) (“ t h e pr operstan dar dfor deter m in in g w h eth e r‘bu s in ess n e c e ssity ’ ju stifies a pra c t i ce whic hha s ara cia lly dis crim i na t o ry res u ltis notwhet he r itis j u s t ified b yr o utine b u s i nes s cons iderations b u t whether there is a compelling need for the employer to mainta in that pr ac tic eand whether the e m ployer can prove there is noalter n ativ e to the c h al

leng ed pr ac tice”); Pettwayv. American Cast Iro nPipe Co. , 494 F. 2d 211, 2 44, n

. 87 (CA 5 1 974 ) (“th is doc t r i n eof bu sin e ss n e c e ssity

. . . c o n n o tes anir r e sistib le dem a n d” (i nternalquotation marks omitted)); United Stat esv. Bethle hem Steel Corp. , 4 46 F. 2d 65 2, 662 (CA 2 1 9 7 1 ) (a n exclus ion a ry pra c t i ce “ m u s tnotonly direct ly fos t er s a fet ya n d effic i en c yof aplan t, bu t als o be essential to those goals”); Robinsonv. Lorillard Corp. , 444 F. 2d 791, 79 8 (CA 41 971) (“Th e testis wh eth e r there exists an overriding legiti mate b u sin e ss pu r p ose su c hth a t the pr ac tic eis nec e ssar yto the sa fe and efficient operation of the bu sin e ss. ”).17 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting hiring and promotional examinations for firef i ghters. 4 Moving in a different direction, in Wards Co ve Packin g Co. v. Atonio , 490 U. S. 642 (1989), a bare maj o rity of this Court significantly modified the Griggs-A lbem arle delinea

tion of Title VII’s disparate-imp a ct proscri ption. As to business necessity for a practi ce that dispr o portionately excludes members of minority groups, Wards Cove held, the employ er bears o n l y the burde n of production, not the burden of persuasion. 490 U. S., at 659–660. And in place of the instruction that the challenged practi c e“must have a manifest relationship to the employment in question,” Grig gs , 401 U. S., at 4 32, Wards Covesaid that the pra c tice would be permissible as long as it “serve [d], in a sig

nificant way, the legitimate employment goals of the employer.” 490 U. S., at 659. In response to WardsCove and “a number of [other] recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws,” Congres s enacted t h e Civil Rights Act of 1991. H. R. Rep. No. 1 02–40, pt. 2 , p. 2 (1991). Among th e 1991 alterations, Congress formally codified the disparate

impact component of Title VII. In so amending the stat

ute, Congress made plain its intention to restore “the concepts of ‘business necessity’ and ‘job related ’enunciated by the Sup r eme Court in Griggs v. Du ke Power Co. .

. . and in othe r Su preme Court de cisions prior to Wards Cov e Packing Co. v. Atonio.” §3(2), 1 05 Stat. 1071. Once a complainin g party demonstrates that anemployment

——————

4 See, e.g. , Nashv. Jack so nvi lle , 837 F. 2d 153 4 (C A11 1 988), v a c a te d, 490 U. S. 11 0 3 (19 89), opin ionr e in stated , 905 F. 2d 35 5 (CA 11 199 0) ; VulcanPion ee rs, I n c. v. Ne w Je rs ey De pt . of Civil Se rv . , 832 F. 2d 81 1 (CA3 (1 98 7); Guardia n s As sn. of N. Y. Ci ty Police Dep t
. v. Civil Se rv. Comm’ n , 630 F. 2d 79 (CA 2 198 0); Ensley Branch of NA ACP v. Seibels , 616 F. 2d 81 2 (CA5 19 80) ; Firefi ght ersInst. fo r Racial Eq ualityv. St. Loui s , 616 F. 2d 350 (CA8 1 980); Boston Chapt er, NAACP v. Beech er , 504 F. 2d 1017 (C A1 1974).18RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting practice ca uses a disparate impact, amended Title VI I states, the burden is on the employer “to demonstrate that the challenged prac tic eis jo b related for th e position in question a n d consistent with b u siness necessity.” 42 U. S. C. §2000e–2(k)(1)(A)(i). If the employer carries tha t substantial burden, the complainant may respond by identifying “an altern ative employment pr actice” which the employer “refuses to adopt.” §2000e–2(k)(1)(A)(ii), (C). B Neither Co ngress’ ena ctments northis Court ’ s Title VII precedents (includingthe now- discrediteddecision in Wards Cov e) offer even a hint of “conflict” between an employer’s obligation s underthe statute’s disparate

treatment and disparate-impact provisions. Cf. an te , at 20. Standi n g on an equal footin g, these twin pillars of Title VIIa dvance the same obje ctives: ending workplace discrimination and promotin g genuinely equal opportu

nity. See McDonnell Douglas Corp. v. Green , 411 U. S. 792, 800 (1973). Yet the Cou rt toda y set s at odds th e statute’s c o re direc

tives. When an employer changes an employment practi ce in an effort to comply with Title VII’s disparate-impac t provision, the Court r e asons, it acts “becau se of race”— something Title VII’s disparate-treatment provision, se e §2000e–2(a) (1), generally forbids. Ante , at 20. This char

acterization of an employer’s co mpliance-directed ac tion shows little attention to Congress’ design or to the G r iggs line of cases Congress recognized as pathmarking. “[O]ur task in interpreting separate provisions of a single Act i s to give th e Act the m o st harmonious, compre

hensive meaning possible in lightof the l e gislative poli cy and purpose.” Weinbergerv. Hynson, Westcott & Dunning, Inc. , 412 U. S. 609, 631–632 (1 973) (internal quotation marks omitted). A particular phr a se need not “extend t o the outer limits of its definitional possibiliti e s ” if an inco n -19 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting gruity would result. Dolanv. P o stal Servi c e , 546 U. S. 481, 486 (2006). Here, Title VII’s disparate-treatmen t and disparate-impact proscripti o ns must be read as complemen t ary. In codifying the Grig gs and Albemarle in structions, Congress declared unambiguously that selection criteria operating to the disadv antage of minority group membe r s can be retained only if justified by business n e cessity. 5I n k eeping with Congress’ design, em ployers who reject such criteria due to reas on able doubts about thei r reliability can hardly be held to have engaged in discrimination “because of ” race. A reasonable endeavor to comply with the law and to ensure that qualified candidate s of all races have a fairopportunity to compete is s i mply not wha t Congress meant to interdict. I would therefore hold tha t an employer who jettisons a selection device when its disproporti onate racial impact becomes apparent does not violate Title VII’s dis p arate- trea t ment bar automatically or at all, subject to this k e y condition: The employer must have good cause to believe the device would not withstan d examination for busin ess necess ity. Cf. Fara gher v. Boc a Raton , 524 U. S. 775, 806 (1998) (observing th at it accords with “clear statutory policy” for employers “to prevent violations” and “ma k e reasonabl e efforts to di scharge the i r duty” un derTitle VII). EEOC’s interpretati ve guid elines are corroborative. “[B]y the enactment of title VII,” the guid elines stat e, “Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement. ” 29 CFR §1608.1(a) (2008). Recognizing EEOC’s “e nforcement responsibility”

——————

5 What was the “busines s nec e ssity” forthe test s New Hav e n used? How could onejustify, e.g. , the 60/40 written/oral ratio, see supra , at 4– 5 , 7

– 8 , under t h a t s t a n da rd? Neit her the Courtnor t h e concu rrin g opinions atte mpt to defend the r a tio.20 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting under Title VII, we have previousl yaccorded the Commi s sion’s posit i on respect f ul consideration. See, e.g. , Albemarle , 422 U. S., at 431; Grig gs , 4 01 U. S., at 434. Yet the Court today does not so much as mention EEOC’s counsel. Our precedents defini ng the contours of Title VII’s disparate-tr eatment prohibition further conf irm the ab

sence of any intra-stat u tory discor d. In John sonv. Tran s porta t ion Agency, San t a Clara Cty

. , 480 U. S. 616 (1987) , we upheld a municipal employer’s voluntary affirmative

action plan against a disparate-treatment challenge. Pursuant to the plan, th e employer selected a woman for a road-dispat c her position, a job categor ytraditiona lly regarded as “male.” A male applicant who ha d a slightly higher interview score brought suit under Title VII. This Court rejected his claim and approved the plan, which allowed consideration of gender as “one of numerous fac

tors.” Id ., at 638. Su ch consideration, we said, is “fully consistent with Title VII” because plans of that order can aid “in eliminating the vestiges of discrimination in th e workplace.” Id ., at 642. This litigation does notinvolve affirmative action. But if the volu ntary affirmative action at issue in Johnson does not discriminate within the meaning of Title VII, neither does an employer’s re asonable effortto comply with Title VII’s disparate-im pact provision by refraining from a ction of doubtful consistency with business necessity. C To “reconcile” the supposed “conflict” betweendisparate treatment a n d disparate impact, the Court offers an enig

matic standard. Ante , at 20. Em ployers may attempt to comply wit hTitle VII’s disparat e-impact p r ovision, the Court declares, only where there is a “strong basis i n evidence” d o cumenting the necessity of their a ction. Ante , at 22. The Court’s sta n dard, dra w n from inapposite equal21 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting protection precedents, is not elab orated. One is leftto wonder wh at cases would meet th e standard and why th e Court is so sure this case does not. 1 In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Eq ual Protec

tion Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact co m ponent. Se e PersonnelAdministr a tor of Ma s s . v. F een ey , 442 U. S. 2 56, 272 (19 79); Wa shi n gtonv. Da vis , 426 U. S. 229, 239 (1976). Title VII, in contrast, aims to eliminat e all forms of employment discrimi nation, unintentional as well as deliberate. Until today, cf

. ante , at 2 5 ; ante , p. 1 (S CALI A , J., concurring), this Court has never questioned the constitutionality of the disparate-impact c o mponent of Title VII, a n d for good reason. By instructing employers to avoid needlessly exclusionary selection processes, Titl e VII’s disparate-impactprovision calls for a “race-neutr al means to increase minority .

. . p a rticipation”—something this Court’s equal protection precedents als oencourage. See Adarand Constructors, Inc. v. Peña , 515 U. S. 200, 238 (1995) (quoting Richmondv. J. A

. Croson Co. , 488 U. S. 469, 507 (1989)). “Th every radi calism of holding dispa

rate impactdoctrine unconstitutional as a matter of equal protection,” moreover, “sugge sts that only a very uncom promising court woul d issue such a decision.” Primu s , Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Re v. 493, 585 (2003). The cases from which the Co urt draws its strong-basis

in-evidence standard are particularly inapt; they concern the constitutionality of absolute racial preferences. See Wygan tv. Jackson Bd . of Ed. , 47 6 U. S. 267, 277 (1986 ) (plurality opinion) (inv alidating a school district’s plan to lay off nonminority teachers while retaini n g minority teachers wi th less seniority); Croson , 488 U. S., at 499–5 0022 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting (rejecting aset-aside program fo r minoritycontrac t or s that operated as “an unyielding racial quota”). An em

ployer’s effort to avoid Title VII liability by repudiating a suspect selection method scarcely resembles those cases. Race was not merely a relevant consideration in Wyga n t and Croson; it was the decisive factor. Observ ance of Title VII’s dispar ate-impact provision, in contrast, calls for no racial preference, absol ute or otherwise. The very purpose of the provi s ion is to ensure that in dividuals are hired and promoted b a sed on qualifications manifestly necessary to successful performance of the job in question, qualific a tions that do not screen out members of any race. 6 2 The Court’s decision in this litigation underplays a dominant Title VII th eme. This Court has repeatedly emphasized that the statute “should not be read to thwar t” eff o rts at voluntary com p liance. J o hnson , 48 0 U. S., at 630. Such compliance, we have explained, is “the preferred means of achieving [Title VII’s] objectives.” Firefi ghtersv. Cleve la n d , 478 U. S. 501, 515 (1986). Se e also Ko lsta dv. Americ a n Dental Assn. , 527 U. S. 526, 545 (1999) (“Dissuading employers from [taking voluntary action] to p r event disc rimination in the wor k place is d i

rectly contr a ry to the purposes underlying T i tle VII.”); 2 9

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6 Even in Titl e VII cases involv ing race-conscious(or ge nder

c o n s c i ou s) affir m ativ e-ac tionplan s, the Court has never proposed a s t rong-b a s is -in-evidences t a n da rd. In John sonv. Transportati on Agency, Santa Clara Cty. , 48 0 U. S. 6 16 ( 198 7), th e Cou r t si mp ly examined the municipal employer’s ac tionfor r e ason ableness: “Given the obvious imbal ance in the Skille d C r aft category, and given the Ag enc y ’ s c o mmitmentto el iminat ing such imb a lances, itwas pla i nl y not unreasonable for the Agency .

. . toco nsider as one factor the sex of [applicant s ] in making its decision.” Id ., at 637. See also Firefi ght ersv. Cleveland , 478 U. S. 50 1, 5 16 (1 98 6) (“Ti t l e VII per m i t s employ er s an d unions volunt a r ily to ma ke us e of re a s onab le ra ce-cons c ious a ffirm a t ive action.”).23 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting CFR §1608.1(c). The strong-basis-in-eviden ce standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance aha z ardous venture. As a result of today’s decision, an employer who discards a dubious selection process can an ticipate costly disparate

treatment litigation in which its ch ances for success—even for surviving a summary-jud g ment motion—are highl y problematic. Concern about exposure to disparate-impact liability, however well grounded, i s insufficient to insulate an employe rfrom attack

. Inste a d, the employer must make a “s tr ong” showi n g that(1) its selection method wa s “not job rel a ted and consistent with business necessity,” or (2) that it refused t oadopt “an equally valid, less

discriminatory alternative.” Ante , at 28. It is hard to see how these requiremen t s differ from demanding that an employer establish “a provable, actual violation” against itself

. C f

. ante , a t24. There is indeed a sharp confli ct here, but itis not the false one the Court describes be

tween Title VII’s core p r ovisions

. I tis, instead, the discor

dance of th e Court’s o p inion with the voluntary compli

ance ideal. Cf. Wygan t , 476 U. S. , at 290 (O’Connor, J., concurring in part a n d concurring in judgment) (“The imposition of a requirement that public em ployers make findings that they have engaged in illegaldiscrimination before they [act] would severely undermine public employers’ incentive to meet voluntarily thei r civil ri ght s obligations. ” ). 7

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7 Notably , pr io rdec i sion s a pply i n ga str o n g -basis-in

- e v iden c estan

dar dh av en o t imposed a bu r d enas h e avyas th e on e th e Cou r t impose s today

. In Cro s on , the Courtfound no s t rong b a s is in ev idence b e ca us e the Cityha d offer e d “nothinga pproaching a prim a fac i e case.” Richmondv. J. A. Croson Co. , 48 8 U. S. 4 69, 5 00 ( 1 9 89). Th e Cou r t didn o t su g g e st th at an y t h i n gbeyon da pr ima fac i e c a se wou l d h av ebeen required. In the context of race-bas ed el ectoral distric t ing, the Court has indic a ted that a “ s tr ongba sis ” exists when th e “threshold condi

-24RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting 3 The Court’s additional justifications for an nouncing a strong-basis-in-evidence standard are unimpressive. First, discarding the results of tests, the Court suggests , calls for aheightened standard because it “upset[s] an employee’s legitimate expectation.” An te , a t25. Thi s rationale puts the ca rtbefore the horse. The legitimacy of an employe e ’s expectation depends on the legitimacy of the selection m e thod. If an employer reasonably concludes that an exam fails to identify the most qualif ied individu

als and needlessly sh uts out a segment of the applicant pool, Title VII surely does not compel the employer to hire or promote based on the test, ho wever unre liable it ma y be. Indee d , the statute’s prime objective is to prevent exclusionary pra ctices from “operat[ing] to ‘freeze’ th e status quo.” Grig gs , 40 1 U. S., at 4 30. Second, the Courtsugg ests, anythi n g less tha na stron g basis-in-evidence standard risks creating “a de facto quota system, in which .

. . an employer could dis c ard test re sults .

. . with the intent of obtaining the employer’s pre

ferred racia lbalance.” Ante , at 2 2

. Under areasonable

ness standard, however, an employer could not cast aside a selection method based on a statistical disparity alone. 8 The employer must have goodca use to believe that th e method screens out q ualified ap plicants and would b e difficult to justify as grounded in busin ess necess ity.

—————— tions” for l i abi lity are presen t. Bushv. Vera , 517 U. S. 9 52, 9 78 ( 1 9 96) (plurality opinion).

8 Infec t ingthe Cour t’ s entir eanaly s is is i t s insis t enc ethat the City rej e ct ed t h e t e s tres u lt s “i ns o le relia nceuponra ce-b a s ed s t at ist i cs . ” Ante , at 24. S ee also ante , at 20, 27–28. B u t as th e par t of th e stor yth e Court leaves o u t, see supra , at 2–1 2, so pl a i n l ysh ow s—t h e lon gh i stor y of ra nk dis crim i na t i on a g a i ns tAfrica n-Am erica n s in the firefight i n g profession, the multip le fla w s in New H aven’s test fo r promotions—
“ s ole relia n ce” on s t a t is t i cs cert a i nly is notdes cript iv e of t h e CS B’ s decision.Cite as: 55 7 U

. S. ____ (2009) 25 G IN SB U R G , J., dis s e nting Should an employer rep e atedly reject test results, it woul d be fair, I agree, to infer thatthe e m ployer is simply seek

ing a racially balanced outcome and is n o t genuinely endeavoring to comply with Title V II. D The Court stacks the deck fu rthe rbydenyi n g respon dents any chance to sa tisfy the newly announced strong

basis-in-evidence standard. When this Court formulates a new legal rule, the ordinary cours eis to rema nd and allow the lower c o urts to ap ply the rule in the fir s t instance

. See, e.g. , Johnsonv. California , 543 U. S. 499, 515 (2005); Pullman-Standardv. Swint , 456 U. S. 273, 2 91 (1982). I see nogoo dreason why the Court fails t ofoll ow that course in this case. Indeed, the sole basis for the Court’s peremptoryruling is the demonstrably false pretension that respondents showed “nothing more” than “a signifi

cant statistical disparity.” An te , at 27–28; see supra , at 24, n. 8. 9

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9 The Cour t’ s refusal to r e ma nd for further proceedings also deprives r e spon den t s of anoppor t un ityto in v o ke 42 U. S. C. §2000e– 12(b) a s a sh ield to liabil i ty

. Sec t ion2000e–1 2(b) pr ov ides: “In any action or proceeding based on any alleged unlawful employmen t pr ac tic e , n oper s onsh all be s ubjec t to an yl i abi lityorpu n i sh men tforor on account of (1) the commission bysuch person of an unlawful em

ployment practice if he pl eads an d proves that the act or omi ssi on complained of was in good faith, inc o nformitywith, and in r e lianc e on anywr itten i n ter p r e tation oropinion of the [EEOC] .

. . . Suc ha defense, if establ ished, sha ll be a bar to the action or pro c eeding, notwithstandi n gthat (A) aftersuch ac t or omiss i on, suc hinter p r e tation or opinion is modified or re scinded oris deter m in ed byju dic i al au th or ity to be invalid or of no legaleffect .

. . .” Specifically, given the chance, resp ondents migh t hav ec a lled at tentio n to th e EEOC g u idelin es set ou t in29 CFR§§160 8.3 an d 160 8.4 ( 200 8)

. The guideline s recognize that emp l oyers may “take affi rmative actio n based onana n aly s is wh ic h r e v e als fac t s c o n s titu tin gac tu al orpoten

tial adv e r s e i m pac t .” § 160 8.3(a). If “ a ffi r m ativ e ac tion” is inor der , s o is th e lesserst ep of disc ar din ga dubiou s selec t iondev i c e .26 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting III A Applying what I view as the proper standard to th e record thus far ma de, I would hold that New Ha ven ha d ample cause to believe its sele ctionprocess was flawed and not justified by business necess ity. Judged b ythat stan

dard, petiti oners have not shown that New Haven’s failure to certify the exam results vi olat ed Title VI I’s disparate

treatment provision. 10 The City, al l agree, “wa s faced witha prima fac i e case of disparate-impact liability,” ante , at 27: The pass rate for minority candidates was half the rate for nonminority candidates, and virtu ally no minority candidates would have been eligible forpromotion had the e x am results been certified. Alerte d to this st ark dispari t y, the C S B heard expert and lay testimony, presented at public hea r ings, in an endeavor to ascertain whether th e exams were fair and co nsistent with business necessity. Its investiga

tion reveal ed grave cause for concern about the exam process itself and the City’s failur eto consider alternativ e selection devices. Chief amon g the City’s problems was the very nature of the tests for promotion. In choosing to use written and oral exams with a 60/ 40 weighti n g, the City simply a d

hered to the union’s p r eference and apparen t ly gave no consideration to whether the weighting was likely to identify the most qualified fire-officer candida t es. 11 T h e r e

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10 The lowe r co urt s focus e d o nres p on dents’ “intent” r a therthan on whether respondents in fact had good c a u s e to ac t. See 5 54 F. Su pp. 2d 142, 15 7 (Con n . 2006). Or din a r ily , a r e man dforfr es hc o n s ider atio n would be in order. But t h e Court has seen fit to p r eclude furthe r proceedings. Itherefore expl ain why, if final ad judicatio nby this Cou r t is indeed appropriate, New Haven should be the prevailing party.

11 This alone wo uld have posed a subst a ntia l problem for New Haven in a disparate

- impact sui t , particular ly in light of the disparate result s the City ’ s sc heme had pr od uced in the past. See supra , at 7. Un derth e27 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting is strong reason to think it was not

. Relying heavily on written test s to select fire officers is a questionable practice, to say th e lea s t. S u ccessful fire officers, the City’s desc ription of th e position mak e s clear, must have the “[a]bility to lead personnel effectively , maintain discipline, p r omote harmony, exercise sound judgment, and cooperate with ot her officials.” CA2 Ap p. A432. These qualities are not we ll measured by writte n tests. Testi f ying before the C S B, C h ristopher Hornic k, an exam-design expert with more th an two dec a des of rele

vant experience, was emphatic on this point: Leadership skills, command presence, and the like “could have been identified and evaluated in a much more appropria t e way.” Id ., a tA1042–A1 043. Hornic k’s c o mmonsense observation is mirrored in case law and in Title VII’s adminis trative guidelines. Courts have long criticized written firefighter prom otion exams for being “more probative of the test-taker’s ability to recall whata particula r text sta t ed on a given topic tha n of his f i refi ghting or supervisory knowledge and abilities.”

—————— Uniform Gui d elines on Employee S e lection Proce d ures (Unifor m Guidelines), employers must conduc t “a n investigatio n of suitab le alter n ativ e se l e c t ionpr oc edur es.” 29 CFR §160 7.3(B). S ee also Officers for Ju sti c ev. Civil Serv. Comm’n , 979 F. 2d 72 1, 728 ( CA9 1 9 9 2 ) (“b e fore utilizing a procedurethat has anadv e rse impact on minorities, the Cityhas an obligation pu rs ua nt to the Uniform Guidel inesto explore alternative procedures and t oimplem ent them if they have less adverse impact and ar e substant ial l yequally va l i d” )

. I ti s n oa n s w e rt o“ p r e sume” tha tth e two-dec a des

- old 60/ 4 0for m u l a was ado p ted fora “r a tional r e a s on” bec a use it“wa s the r e sultof a union-negotiated collective bar g a in in gagr eemen t.” Cf. ante , at 30. Th at th e parties mayh av e been“r ation a l” say s n o th in gabou t whethe r their agreed- u pon selection proces s wa s cons is tent with b u s i nes s necess ity. It is not a tall unus ua l for agreement s negotiated between employers and unions to run afoul of Title VII. See, e.g. , Pet e rsv. Mi ssouri

- Pacific R. Co. , 483 F. 2d 4 9 0 , 497 (C A5 197 3) (anemploy men tpr ac tic e“is n o t sh iel d ed [fr om th e requirements of Title VII] by the fact s tha tit is the product of collectiv e bar g a in in gand meets th e st an dar d s of fair representation”).28RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting Vulcan Pio n eers, Inc. v. Ne w Je rsey Dept. of Civil Serv. , 625 F. Supp. 527, 539 (NJ 1985). A fire officer’s job, courts have observed, “invol ves complex behaviors, good inter

personal skills, the ab ility to make decisions under tre

mendous pressure, and a host of other abili ties—none of which is easily meas ured by a written, multiple choi ce test.” Firefighte rs Ins t . for Racial Equalityv. St. Louis , 616 F. 2d 350, 359 (CA8 1980). 12Interpreting t h e Uniform Guidelines, EEOC and other fede ral agencies responsib l e for enforcing equal opportunity employmen tlaws have similarly r e cognized that, as measures of “interpersonal relations” or “ability to function under danger (e.g. , fire

fighters),” “ [ p]encil-and-paper test s . . . generally are no t close en ough approximations of w o rkbehaviors to show content validity.” 44 Fed. Reg. 12007 (1979). See als o2 9 CFR §1607.15(C)(4). 13 Given these unfavorable apprais a ls, it is u n surprising that most municipal employers do not evaluate their fire

-

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12 See also Nash , 837 F. 2d, a t 153 8 (“ th e ex a m in ationd i d n o t tes tth e one aspect of job performan c e that differentiated the jo b of firefighter engineer from fire lieutenant (combat): sup e rvisory skills”); Firefighte rs Inst. for Ra ci al Eq ualityv. St. Lo uis , 549 F. 2d 506, 512 (CA 819 7 7 ) (“there is no good pen and p a per testfor evaluating supervisory skills ”); Boston Chapt er, NA ACP, 504 F. 2d, at 1 023 (“[T]h er e is a differ e n c e between mem o r i zing

. . . fire figh tingterminology and being a good fi re fight e r. If t h e Bos t on Red S o x recru ited players on the basis of their kn owledg e of base bal l h i s t o r yan d v o c abu lar y , th e team migh t ac qu ir e [pla yers ] who could not b a t , pitch or ca tch. ”).

13 Cf. Gillespi ev. Wisconsin , 771 F. 2d 103 5, 1043 (CA 719 85) (c ou r t s must ev aluat e“the degr ee to whic h the nature of th e examinati o n procedureapproximates the job condit ions”). In additi on to “c ontent validity,” the Uniform Guidelines di sc u ss “c on str u c tv a lidity” an d “c r i ter i on v a lidity” a s me ans bywhic h an employ ermigh t establi s h the r e liabil i tyof a selec t ionmeth od. See 29 CFR §160 7.14(B) –(D). Con t en t validity, howe ver, is the onlytype of validity addressed by the parties and “the only feasib le type o f valida t ion inthese c i r c u ms tanc es.” Br ief for Industrial- O rganizational Psychologist s a s Am icus Curiae7, n

. 2 (hereinafter I- O Psycholo gists Brief).29 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting officer candidates as New Ha ven does. Although compre

hensive statistics are scarce, a 1 996 study found that nearly two-thirds of surveyedmunicipalities used assess

ment centers (“simulations of the real world of work”) a s part of their promotion processes. P. Lowry, A Surve yof the Assessment Center Process in the Public Sector, 2 5 Public Personnel Ma nagement 307, 315 ( 1996). That figure represented a mark ed increase over the previous decade, see ibid. , so the percentage today may well be even higher. Among municipalities still relyin g in part on written exa ms, the median weigh tassigned to them wa s 30 percent—half the weight give n to Ne w Haven’s written exam. Id ., at 309. Testimony before the CSB indica ted that th ese alterna

tive methods were both more reliable and notably less discriminatory in operation. Acc o rding to Donald Day of the International Association of Black Professional Fir e fighters, nearby Bridgeport saw l e ss skewed results afte r switching to a select ion process that placed primary weight on an oral exam

. CA2 App. A830–A832; see supra , at 7–8. An d Hornick described assessmentcenters a s “demonstrat[ing] d r am atically less adverse im pacts” than written exams. CA2 App. A10 40. 14C o n s i d e r i n gt h e prevalence of these pr oven alternatives, New H aven was poorly positioned to argue t hat promotions based on its outmoded and exclusionary selection process qualified as a business necessity. Cf. Robinsonv. Lorill ardCorp. , 444

——————

14 See also G. T h ornton & D. Rupp, As s e s s ment Centers in Huma n Res o urce Ma na gem e nt15 (2 0 0 6) (“As ses s ment c e nter s pr edic t futur e s u cces s , do notca us e a dvers e im pa ct , a n d a r e s een as fa ir b ypa rt ic i

pa nts

. ”); W. Ca s c io & H. Aguinis , Applied Psychology in Human Re

sou r c eM a n a gemen t37 2 (6 thed. 2005) ( “r e sear c hh a s demon s tr ate d th at adv e r s e i m pac tis le ss of a pr oblem i nan[assess m e n tc e n t er] as c o mpar ed to a naptitude tes t”). Cf. Firefi ghte rs I n st . fo r Racial Eq uality , 549 F. 2d, at 5 1 3 (r ec ommen d in gasse s s men tc e n t er s as anal ter n a tiv eto wr itten ex ams).30 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting F. 2d 791, 798, n. 7 (CA4 1971) (“It should go witho u t saying that a practice is hardly ‘n ecessary’ if an alterna

tive practic ebetter effectuates its intended purpose or is equally effective but less discriminatory.”). 15 Ignoring the conceptual and other defects in New Ha

ven’s selection process, the Court describes the exams as “painstakin g [ly]” developed to test “relevant” material and on that basis finds no substant ial risk of disparate-impact liability. S ee ante , at 28. Perhaps such reas oning would have sufficed under Wards Cov e , which permitted exc l u sionary pra ctices as long as they advanced a nemployer’s “legitimate” goals. 490 U. S., at 6 59. But Co ngress repu diated War ds Covean d reinstated the “business necess ity” rule attend ed by a “m anifest relationship” r e quirement

. See Griggs , 401 U. S., at 431–432. See also su p ra , at 17. Lik ethe chess player who tries to win by sweeping the opponent’s pieces off the table, th e Court simply shuts from its sight the formidable obst acles New H aven would have faced in defending against adisparate-i m pact suit.

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15 Finding the e v idence co nce r ning these al ternatives in sufficiently developed to “create a genuine issue of fact,” ante , at 32, th e Cou r t effectively confirms that an employ er ca nnot preva il under its strong

bas is-in

- ev ide n c estan dar du n l ess th e employer decisively proves a dispar a t e-imp a c tv i olation ag ain s t i t self. The Court’sspecific argu

ments are unavailing. First, th e Court suggests , changing the ora l/writ t e n weight ing m a y have viol at ed Title VII’s prohibition o n altering test scores. Ant e , a t31. No on e i s ar g u in g , h o wev e r, th at th e r e su lts of th e ex ams giv e nsh ou ld have been altered

. Rather, the ar g u ment is that the Cityc o uld hav eav ailed itse lf of a betteroption when it initia lly decided w h at select ion process to use

. Second, wit h respect to assessment centers, the Co ur t identifies “s ta tements to the CSB indic a t[i n g] that the Depar tment c o uld not hav eused [them] for th e 2003 ex am in ation s .” Ant e , at 31–32. Th e Cou r t c o mes u p withon ly a sin gle state m en t onth is subjec t—anoffh an d r e mar kmade bypeti

tioner Ricci, who hardly qualifies as an ex per tin tes t ingmethods. Se e ante , at 14. Giv e nth e larg e n u m berof mu n i c i palitie s th at r e g u lar l y use asse ss me nt c e nter s, it is impo ss ible to fathom wh ythe City , with proper pla nni ng, could not h ave done s oa s well.31 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting See Lannin g

v. Southe astern P a . Tran sp. Au th. , 181 F. 3d 478, 489 (CA3 1999) (“Judicial application of a standard focusing solely on whether the qualities m e a s ured by an

. . . exam b e ar some relationship to the job in question would impermissibly write out the business necessity prong of the Act’s chosen standard.”). That IOS representative Chad Legel and his team may have been diligent in designing the exams says little about the exams’ suitability for selecti ng fire officers. IOS worked wit h in the City’s co nstrai n ts. Legel never dis

cussed with the City the propriety of the 60/40 weighting and “was not asked to consider the possib ility of an as

sessment c e nter.” CA2 App. A522. See a l so id ., at A467. The IOS ex ams, Legel admitted, h a d not even attempte d to assess “command presence”: “[Y]ou would probably be better off with an assessment center if you cared to meas

ure that.” Id ., at A521. Cf. Boston Chapter, NAACP v. Beech er , 50 4 F. 2d 1017, 1021–10 22 (CA1 1974) (“A test fashioned from materials pertaining to the job .

. . superfi

cially may seem job-related. But what is at issue is whether it demonstrably selects people who will perform better the r e quired on-the-job behaviors.”). In addition to the hi ghly questionable character of the exams and the neglect of available alternatives, the City had other reasons to worry about its vulnerability to dis

parate-impact liability. Under the City’s ground rules, IOS was no t allowed to show the exams to anyone in the New Have n Fire Dep a rtment pr ior to their administra

tion. This “precluded [IOS] f r om being able to engage i n [its] normal subjectmatterexpertreview p r ocess”

— something Legel described as “very critical.” CA2 App. A477, A506. As a result, some of th e exam qu estions were confusing or irrelevant, and the exams may have over

tested som e subject-matter a r eas while missing others. See, e.g. , id ., at A1034–A1035, A1051. Testimony before the CSB al so raised questions concerning u n equal access32 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting to study m a terials, see id ., at A857–A861, and the poten

tial bias introduced by relying prin cipally on job analyses from nonminority fire officers to develop the exams, see id ., at A1063–A1064. 16See als o supra , at 7, 10. The Court criticizes New Haven for failing t oobtain a “technical r e port” from IOS, whic h, the Court maintains, would have provided “detailed information to establish th e validity of the exams.” Ante , at 29. The record does no t substantiate this ass e rtion. As L e gel testified during his deposition, the technical report merely summarized “t he steps that [IOS] tookmethod ologically speak i ng,” and would not have established the exams’ reliability. CA2 App. A461. See also id ., at A462 (the report “doesn’t say anything that other documents that already existed wouldn’t sa y”). In sum, the recordsolidly establishes that th e Cityha d good cause to fear dis p arat e-impact liability. Moreover, the Court supplies no tenable explanation why the evi

dence of th e tests’ mul t iple de ficiencies does not create at least a triable issue under a strong-basis-in-evidence standard.

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16 The I-O Psychologists Brie f identi fies st ill other, more technical flaws in the e x ams tha tma ywell hav e precluded the Ci ty from prevail

in gina dispar ate-imp a c tsu i t

. Notably , th e ex ams wer en e v e rsh ownt o be suitab ly precise to allow strictra nkorderin gof ca ndida t es . A difference of o n e or two points on a multip le-choice examshould not be dec i siv eof anapplic an t’ s p r omotionc h an c e s if th at differ e n c e bears little r e la tions h ip to the applic ant’ s qu ali f ic ation s forth e job. Relat

edly, it a ppea r s thatthe li ne be tween a pass ing and f a iling score di d not ac c u r a tely differ e ntiate betw een quali f ied and unqualified candi

dates. A nu mber of fire-officer promotional exams h ave been invali

dated on these base s . See, e.g. , G u ardia n s Assn . , 630 F. 2d, at 10 5 (“When a cutoff score unrelated to job performance produces disparate ra cia lres u lt s , Tit l e VII is viola t ed.” ); V u lcan Pion eers, Inc. v. New Jersey De pt. of Civil Serv. , 625 F. Su pp. 5 2 7 , 53 8 (NJ19 8 5 ) (“[T]h e te st s here at issue are not appropri a t e for ra nkin g ca ndida t es .” ).33 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting B Concurringin the Co urt’s opinion, J U S TI CE ALITO as serts that summary judgment fo r respondents would be improper even if the City had good cause for its noncertifi

cation decision. A re asonable ju ry, he mai n tains, could have found that respondents were not actua lly motivated by concern about disparate-im pact litigation, but instead sought only “to placate a po litic ally important [AfricanAmerican] constituency.” Ante , a t3. As earlier noted, I would not oppose a remand for fu rther p r oceedings fair to both sides. See supra , at 26, n. 10. It is the Court that has chosento short-circuit this litigation based on it s pretension that the City has shown, and can show, noth

ing more than a statistical disparity. See supra , at 24, n. 8, 25. J USTICE ALIT O compounds the Court’s error. Offering atrunca t ed synopsis of the many hours o f deliberation s undertake n by the CSB, J USTI CE ALITO finds evidence suggesting t hat resp ondents’ stated desire t o comply wit hTitle VII was insincere, a mere “pretext” fo r discrimination against white firefighters. Ante , at 2–3. I n support of his assertion, J USTICE ALITO recounts at length the allegedmachinations of Rev. Boise Kimber (a l o cal political activist), Mayor John DeStefano, and certa in members of the mayor’s staff. See ante , at 3–1 0. Most of the allegatio n s J USTIC E ALITO repeats are drawn fro mpetitioners’ statement of facts they deem undisputed, a statement displaying an adversarial zeal not uncommonly foun d in such presentations. 17 What

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17 Some of petiti oner s’ so-c alled fac t s find litt l e s u pportin t h e reco rd, a n d m a ny ot hers ca n s c a rce ly b ed eemed material. Petitioners allege , forex ample, th at Cityoffic i als pr eventedNew Haven’s fire chief and ass i st an t c h ief fr om sh ar in gth eirv i ews about the exams with the CS B

. App. to Pet. forCer t . in No. 07–14 28, p. 228 a. Non eof th e mater i al s petitioner s c i t e , howev e r, “sug g e sts” that this propositio n is accurate. Cf. ante , at 5. In h e rdeposi tiontesti m on y , Cityoffic i al Kar e n DuboisWalton specifi c ally denied that she or her collea g ues direct ed t h e chief34RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting cannot credibly be denied, howe ver, is that the decision against certification of the exams was made neither by Kimber nor by the mayor and his staff. The relevant decision wa s made by the CSB, an unelected , politicall y insulated b o dy. It is st riking that J USTICE ALI T O ’s concur

rence says hardly a word about the CSB its e lf, perhaps because there is scant evidence that its mo tivation was anything other than to comply with Title VII’s disparate

impact provision. Notably, petitioners did not even seekto tak edepositions of the two commissioner s who voted against certification. Both submitted uncontested affida

vits declaring unequivocally t hat their votes were “based solely on [their] good faith belief that certification” woul d have discriminated against minori ty candida t es in viola

tion of feder a l law. CA2 App. A16 05, A1611. J USTICE ALI T O discounts these sworn statements, sug

gesting tha tthe C S B’s deliberations were tai n ted by the preferences of Kimber and City officials, whether or not the CSB itself was aware of the taint. Kimber and City officials, J USTICE ALI TO specula t es, decide d early onto oppose certification and then “engineered” a sk ewed pres

entation to the CSB to achieve their preferred outcome. Ante , at 12.

—————— an d assi st an t c h ief n o t to appear

. App. to Pet. forCer t . i nNo. 07–14 28 , p. 8 5 0 a . Moreover , cont ra ry t o the insi nuations of p e titioners an d J US TI CE ALITO , th e state m en t s made byCit yoffic i als befo r eth e CSB did not emphasi z e allegations of ch eatingbytest t a ker s . Cf

. ante , at 7–8. Inh e r deposition , Dubois-Waltonac knowledged sharing thecheating alleg a tion s not with the CS B, but with adiffer e nt Cit yc o mmission. App. to Pet. forCer t . inN o . 07–1 428, p

. 837a. J US TI CE ALITO also r e por t s thatt h e City ’ s a ttor n eyadv i sed t h e may o r ’ s tea mtha tthe w a y to c o nv inc ethe CSBnot to c e r t ifywas “ t o foc u s on so methingother th an‘ abigdis c u ssionr e : adv e r s e impac t ’ law.” Ante , at 8 (qu o tin gAp p. to Pet. forCer t . inNo. 07–1 428, p. 45 8a). Th is i s a mis l eadin gab br e viation of the attorney’s advice. Fo cusing on the e x ams’ defects and on dispara t e-imp a ct law is pre c is ely what he recommended. See id ., at 458 a– 459 a.35 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting As an initi a l matter, J USTICE ALITO exagg e rates the influence of these acto rs. The C S B, the rec o rd reveals, designed and conducted an in clusive decisionmaking process, in which it heard from numerous in dividuals on both sides of the certification question. See, e.g. , CA2 Ap p. A1090. Ki mber and others no doubt used strong words to urge the CSB not to certify the exam results, but the C S B received “p r e ssure” from supporte rs of cer t ification as we ll as opponents. Cf. an te , at 6. Petitioners, for example, engaged counsel tospeakon th eir behalf bef o re the CSB. Their counsel did not mince word s: “[I]f you discard these results,” she warned, “you will get sued. You will force the taxpayers of the cityof New Have n into protr a cted litiga

tion.” CA2 App. A816. See also id

. , at A788. The local firefighters union—an organization required by law to represent all the Ci ty’s firefighters—was simi

larly outspoken in fav o r of ce rtification. Discarding th e test results, the union’s president told the CSB, would be “totally ridiculous.” Id. , at A806

. He in sis t ed, inaccu

rately, thatthe City was not atrisk of dis p arate-imp a ct liability because the exams were a d ministered pursuant to “a collective bargaining agreement.” Id ., at A1137. Cf. supra , at 26–27, n. 11. Never mentioned by J UST I CE ALITO in his attempt t oshow test ing expert Christopher Hornic k’s alliance with the City, ante , at 8–9, the CSB solicited Hornick’s testimony at the union’s suggestion, not the City’s. CA2 App. A1128. Hornick’s cogent testimony raised substantial doubts about the exams’ reliability. See supra , at 8– 10. 18

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18 City officials, J US TI CE ALIT O report s , s e n tHornickne ws pa per a c c o unts and ot hermater i al about the ex ams pr iorto his tes t imony

. Ante , at 8. So me of these material s, J US TI CE ALITO intimate s, mayha v e given Ho rnic ka nina c c u ra t eport ra itof t h e exa m s . ButHornick ’ s testi m ony befo re the CSB, viewed in full, i n dicates that Hornick had an a ccura t eu n de rs t a nding of th e exa mpro c e s s . Mu chof H o rnick’sa n a l y sis foc u sed onth e 60/ 40 w e igh t in g of the written and oral exams,36 RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting There is scant cause to suspect that maneuvering or overheated rhetoric, from either s i de, prevented the CSB from evenhandedly assessing the reliability of the exams and rendering an independent, good-faith decision on certification. J USTICE ALITO ack n owledges that the CSB had little patience for Kimber’s a n tics. Ante , at 6–7. 19A s to petitioners, Chairm an Segaloff—who vote d to cer t ify the exam results—dismissed the threats m a de by their counsel as unhelpful and needless ly “inflammatory.” CA2 App. A821. Rega rdin g the views expressed by City offi

cials, the C S B made clear that th ey were en titled to no special weight. Id. , at A1080. 20 In any eve n t, J USTI CE ALITO ’s an alysis contains a more fundamental flaw: It equates polit ical considerations with unlawful discrimination. As J U S T I CE ALITO s ees it, if the mayor and his staff were moti vated by their desire “t o placate a .

. . racial constituency,” ante , at 3 , then they engaged in unlawful discrimination againstpetitioners. But J USTIC E ALITO fails to ask a vi tal question: “[P]lacat e ” how? That political officials would have politics in mind is hardly extraordinary, and there are many wa ys in which a politician can attem p t to winover a c o nstituency—

—————— somethingthat neitherthe Cour t nor the c o ncur r e nc es ev en attempt to defend. It is, mor eov er , entir e lymisleadin gto saythat the Citylate r hired union-p roposed Hornick as a “rewar[d]” for his testimony. Cf. Ante , at 9. 19 To be clear, the Board of Fire Commissioners on whi c h Kimber serv ed is an entitysepar a te fr om the CSB

. Kimberwas nota membe r of the CSB. Ki mber, J US TI CE ALITO state s , r e qu ested a pr iv ate meeti n g with the CSB

. Ante , at 6. There is not a shred of evidence that a private meetin g with Kimber or anyo ne els etook place.

20 J US TI CE ALIT Opoints to ev id enc ethat the may o rhad dec i ded not to make promoti o ns based on the exams even if the CSB voted to certify th e r e su lts, goin gso faras to pr epar e a pr ess r e lease to th at effec t

. Ante , at 9. If an y t h i n g , th is ev iden c erein forces t h e con c lus i on t h a tthe CSB—whic h made the nonc er tific a ti on d e cision—remained independ

en t an d abov eth e politic alfr ay . Th e may o ran d h i s staff n eeded a contingency plan precisely becaus e they di d not control th e CSB.37 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting including a racial constituency—without engaging i n unlawful discrimination. As co urts have recognized, “[p]oliticians routinely respond to bad press .

. . , but it is not a violation of Title VII to take advantage of a situation to gain poli tical favor.” Henryv. Jon e s , 507 F. 3d 558, 56 7 (CA7 2007). The real issue, then, is not whet her the ma yor andhis staff were politically motivated; it is whether their at

tempt to score political points was legitimate ( i.e. , nondis

criminatory). Werethey seek in g to exclude white fir e fighters fro mpromotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly , that their tests could be toppled in a disparate-imp a ct suit? In th e latter cas e , there is no disparat e-treatment violation. J USTICE ALI TO , I recogn ize, woulddisagree. In his view, an employer’s action to avoid Title VII disparate

impact liability qualifi e s as a pr esumptively improper race-based employmen tdecision. See ante , a t2

. I r ej e c t that constr uction of Title VII. See supra , at 18–20. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment. Applying this understanding of Title VII, su pported b y Grig gs and the long lin e of decis i ons foll owing Gri ggs , se e supra , a t1 6–17, and nn. 3–4, th e DistrictC o urt found no genuine dispute of ma terial fact. That court noted, par

ticularly, th e guidance furnished by Second Circuit p r ece dent. See supra , at 12. Petitioners’ allegations that Cit y officials took account o f polit ics, t h e District Court deter

mined, simply “d[id] n o t suffi ce” to create an inference of unlawful discrimination. 554 F. Supp. 2d, a t160, n. 12. The noncertification decision, even if undertaken “in a political context,” refl ected a legitimate “intent not to implement a promotional process based on testing results that had anadverse impact.” Id ., at 158, 160. Indeed, the38RICCI v. D E STEFANO G IN SB U R G , J., dis s e nting DistrictCo urt per c eived “a tota l absence of a n y evidence of discriminatory animus towards [p etitioners].” Id ., at 158. See also id. , at 162 (“Nothing in the record in this cas e suggests that the City defendants or CSB acted ‘because of’ discriminatory animus toward [petitioners] or oth e r non-minority applicants for prom otion.”). P e rhaps the District Court could have been more expansive in its discussion of these is sues, but i t s conclusions appear entirely consistent withthe record before it. 21 It is indeedregrettable thatthe C i ty’s noncer tification decision would have required all c andidates to go through another sel e ction process. But itwould have beenmor e regrettable to rely on flawed exam s to shut out candidate s who may well have the command presence and othe r qualities n e eded to excel as fireofficers. Yet that is the choice the Court makes today. It is a choice that breaks the promise of Gri ggsthat groups l o ng denied equal oppor

tunity would not be held back b y tests “fair i nform, but discriminatory in operation.” 401 U. S., at 43 1.

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21 The Dis t rictCourt , J US TI C E ALITO writes, “al lbut conceded that a j u ry could fin dt h a tt h e City’s a s s e rted justification was pretextual” by
“ a dmit t [ing] tha t‘aj u ry cou l d ra t i ona l ly infer t h a tcit yofficia l s worked behind the scenes to sabotage th e prom otional exami n ations becau s e t h ey kne wt h a t , were t h e e x a m s cert ified, t h e Ma yo r w o uld incu r t h e wrath of [Re v . Boise] Kimber and other influential leaders of New Haven’s Afric a n-America ncommunity.’ ” Ante , at 3, 1 3 (qu o tin g554 F. Su pp. 2d, at 162). Th e Distr i c tCou r t dr ew th e qu oted pass ag e fr om pet i t i oners ’ lower co urtb r ie f, a n d us ed itin refe rencet o aFirs tAm end

ment c l aim no t befor ethis C o ur t. Ina n ye v e n t , i ti s n o ta p p a r e n tw h y these al leg e d polit ic al m a neuv er s sug g est an intentto di sc r i minat e ag ainst petit i oner s. That Cityoffic i al s mayhav ewa nted to ple a s e politic al supp or ter s is entir e lyc o nsistent with theirstated des i r eto av oid a di spar ate-imp a c tv i o l ation

. Cf. Ashcroftv. Iqbal , 556 U. S. ___ , ___ (2009) (sli p op., at 18) ( a llegation s th at senior Government official s condoned the arrest and de tention of tho u sands of Arab Muslim me n followin gth e Septem ber11 att a c k s faile d to est abl ishev ena “plau s ibl e inference” of unla w ful dis c r i mina tionsuffic i ent to surv iv e a motion t o dismi ss).39 Cite as: 55 7 U

. S. ____ (2009) G IN SB U R G , J., dis s e nting * * * This case presents an unfortunate situation, one Ne w Haven might well have avoided had it utilized a bett er selection process in the first plac e. But wh at this cas e does not present is race-based discrimination in violation of Title VI I

. Idissentfrom the Court’s judgment, which rests on th e fals e pre m ise that respondents showed “ a significant statistical d i sparity,” b u t “nothingmore.” Se e ante , at 27– 28.