(Slip Opinion) OCTOBER TERM, 2008 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

RICCI ET AL. v. DESTEFANO ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SECOND CIRCUIT 

No. 07–1428. Argued April 22, 2009—Decided June 29, 2009* 

New Haven, Conn. (City), uses objective examinations to identify those

firefighters best qualified for promotion. When the results of such an 

exam to fill vacant lieutenant and captain positions showed that

white candidates had outperformed minority candidates, a rancorous

public debate ensued. Confronted with arguments both for and 

against certifying the test results—and threats of a lawsuit either

way—the City threw out the results based on the statistical racial 

disparity. Petitioners, white and Hispanic firefighters who passed

the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials,

alleging that discarding the test results discriminated against them

based on their race in violation of, inter alia, Title VII of the Civil 

Rights Act of 1964. The defendants responded that had they certified

the test results, they could have faced Title VII liability for adopting

a practice having a disparate impact on minority firefighters. The 

District Court granted summary judgment for the defendants, and

the Second Circuit affirmed. 

Held: The City’s action in discarding the tests violated Title VII. 

Pp. 16–34. 

(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. 

§2000e–2(a)(1) (disparate treatment), as well as policies or practices 

that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate

impact). Once a plaintiff has established a prima facie case of dispa-

—————— 

*Together with No. 08–328, Ricci et al. v. DeStefano et al., also on 

certiorari to the same court. 
2 RICCI v. DESTEFANO 

Syllabus 

rate impact, the employer may defend by demonstrating that its

policy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that 

burden, the plaintiff may still succeed by showing that the employer

refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–

2(k)(1)(A)(ii) and (C). Pp. 17–19.

(b) Under Title VII, before an employer can engage in intentional

discrimination for the asserted purpose of avoiding or remedying an 

unintentional, disparate impact, the employer must have a strong 

basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. 

The Court’s analysis begins with the premise that the City’s actions 

would violate Title VII’s disparate-treatment prohibition absent some

valid defense. All the evidence demonstrates that the City rejected

the test results because the higher scoring candidates were white.

Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would 

be prohibited disparate-treatment discrimination. The Court has 

considered cases similar to the present litigation, but in the context

of the Fourteenth Amendment’s Equal Protection Clause. Such cases 

can provide helpful guidance in this statutory context. See Watson v. 

Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the 

Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 

U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 

277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 

U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” 

Ibid. The same interests are at work in the interplay between Title

VII’s disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to

both provisions, allowing violations of one in the name of compliance 

with the other only in certain, narrow circumstances. It also allows 

the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see §2000e– 
Cite as: 557 U. S. ____ (2009) 3 

Syllabus 

2(l), and the section that expressly protects bona fide promotional exams, see §2000e–2(h). Thus, the Court adopts the strong-basis-inevidence standard as a matter of statutory construction in order to 

resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. Pp. 19–26.

(c) The City’s race-based rejection of the test results cannot satisfy 

the strong-basis-in-evidence standard. Pp. 26–34. 

(i) The racial adverse impact in this litigation was significant, 

and petitioners do not dispute that the City was faced with a prima

facie case of disparate-impact liability. The problem for respondents

is that such a prima facie case—essentially, a threshold showing of a 

significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 

446, and nothing more—is far from a strong basis in evidence that

the City would have been liable under Title VII had it certified the

test results. That is because the City could be liable for disparateimpact discrimination only if the exams at issue were not job related

and consistent with business necessity, or if there existed an equally

valid, less discriminatory alternative that served the City’s needs but 

that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the 

record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. 

Pp. 26–28. 

(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to

develop and administer the tests and the painstaking analyses of the

questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain

examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that 

the City turned a blind eye to evidence supporting the exams’ validity. Pp. 28–29. 

(iii) Respondents also lack a strong basis in evidence showing an 

equally valid, less discriminatory testing alternative that the City, by

certifying the test results, would necessarily have refused to adopt.

Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation

would have allowed the City to consider black candidates for thenopen positions, but they have produced no evidence to show that the

candidate weighting actually used was indeed arbitrary, or that the

different weighting would be an equally valid way to determine

whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring 
4 RICCI v. DESTEFANO 

Syllabus 

applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated 

Title VII’s prohibition of race-based adjustment of test results,

§2000e–2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks 

would have had less adverse impact than written exams does not aid

respondents, as it is contradicted by other statements in the record

indicating that the City could not have used assessment centers for 

the exams at issue. Especially when it is noted that the strong-basisin-evidence standard applies to this case, respondents cannot create a 

genuine issue of fact based on a few stray (and contradictory) statements in the record. Pp. 29–33.

(iv) Fear of litigation alone cannot justify the City’s reliance on 

race to the detriment of individuals who passed the examinations and

qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the 

test results, the City faces a disparate-impact suit, then in light of 

today’s holding the City can avoid disparate-impact liability based on

the strong basis in evidence that, had it not certified the results, it 

would have been subject to disparate-treatment liability. Pp. 33–34. 

530 F. 3d 87, reversed and remanded. 

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, 

C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a 

concurring opinion. ALITO, J., filed a concurring opinion, in which 

SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

Nos. 07–1428 and 08–328 

FRANK RICCI, ET AL., PETITIONERS 

07–1428 v. 

JOHN DESTEFANO ET AL. 

FRANK RICCI, ET AL., PETITIONERS 

08–328 v. 

JOHN DESTEFANO ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT 

[June 29, 2009] 

JUSTICE KENNEDY delivered the opinion of the Court. 

In the fire department of New Haven, Connecticut—as

in emergency-service agencies throughout the Nation—

firefighters prize their promotion to and within the officer

ranks. An agency’s officers command respect within the 

department and in the whole community; and, of course, 

added responsibilities command increased salary and

benefits. Aware of the intense competition for promotions, 

New Haven, like many cities, relies on objective examinations to identify the best qualified candidates. 

In 2003, 118 New Haven firefighters took examinations 

to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (or City) 

were infrequent, so the stakes were high. The results 

would determine which firefighters would be considered 

for promotions during the next two years, and the order in 

which they would be considered. Many firefighters stud-
2 RICCI v. DESTEFANO 

Opinion of the Court 

ied for months, at considerable personal and financial cost. 

When the examination results showed that white candidates had outperformed minority candidates, the mayor

and other local politicians opened a public debate that 

turned rancorous. Some firefighters argued the tests

should be discarded because the results showed the tests 

to be discriminatory. They threatened a discrimination

lawsuit if the City made promotions based on the tests.

Other firefighters said the exams were neutral and fair.

And they, in turn, threatened a discrimination lawsuit if 

the City, relying on the statistical racial disparity, ignored

the test results and denied promotions to the candidates

who had performed well. In the end the City took the 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 performance sued the City and some of its officials. Theirs is 

the suit now before us. The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in

violation of both Title VII of the Civil Rights Act of 1964, 

78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and 

the Equal Protection Clause of the Fourteenth Amendment. The City and the officials defended their actions, 

arguing that if they had certified the results, they could 

have faced liability under Title VII for adopting a practice 

that had a disparate impact on the minority firefighters. 

The District Court granted summary judgment for the

defendants, and the Court of Appeals affirmed. 

We conclude that race-based action like the City’s in this

case is impermissible under Title VII unless the employer 

can demonstrate a strong basis in evidence that, had it not 

taken the action, it would have been liable under the 

disparate-impact statute. The respondents, we further 

determine, cannot meet that threshold standard. As a 
Cite as: 557 U. S. ____ (2009) 3 

Opinion of the Court 

result, the City’s action 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 respondents’ actions may have violated the Equal Protection

Clause. 

I 

This litigation comes to us after the parties’ crossmotions for summary judgment, so we set out the facts in 

some detail. As the District Court noted, although “the 

parties strenuously dispute the relevance and legal import 

of, and inferences to be drawn from, many aspects of this

case, the underlying facts are largely undisputed.” 554 

F. Supp. 2d 142, 145 (Conn. 2006). 

A 

When the City of New Haven undertook to fill vacant 

lieutenant and captain positions in its fire department 

(Department), the promotion and hiring process was governed by the city charter, in addition to federal and state 

law. The charter establishes a merit system. That system

requires the City to fill vacancies in the classified civilservice ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies

a ranked list of applicants who passed the test. Under the

charter’s “rule of three,” the relevant hiring authority

must fill each vacancy by choosing one candidate from the

top three scorers on the list. Certified promotional lists 

remain valid for two years. 

The City’s contract with the New Haven firefighters’ 

union specifies additional requirements for the promotion 

process. Under the contract, applicants for lieutenant and 

captain positions were to be screened using written and

oral examinations, with the written exam accounting for 

60 percent and the oral exam 40 percent of an applicant’s 
4 RICCI v. DESTEFANO 

Opinion of the Court 

total score. To sit for the examinations, candidates for 

lieutenant needed 30 months’ experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year’s 

service as a lieutenant in the Department, a high-school 

diploma, and certain vocational training courses. 

After reviewing bids from various consultants, the City

hired Industrial/Organizational Solutions, Inc. (IOS) to

develop and administer the examinations, at a cost to the

City of $100,000. IOS is an Illinois company that specializes in designing entry-level and promotional examinations for fire and police departments. In order to fit the 

examinations to the New Haven Department, IOS began 

the test-design process by performing job analyses to 

identify the tasks, knowledge, skills, and abilities that are 

essential for the lieutenant and captain positions. IOS 

representatives interviewed incumbent captains and 

lieutenants and their supervisors. They rode with and 

observed other on-duty officers. Using information from

those interviews and ride-alongs, IOS wrote job-analysis

questionnaires and administered them to most of the 

incumbent battalion chiefs, captains, and lieutenants in

the Department. At every stage of the job analyses, IOS, 

by deliberate choice, oversampled minority firefighters to

ensure that the results—which IOS would use to develop 

the examinations—would not unintentionally favor white

candidates. 

With the job-analysis information in hand, IOS developed the written examinations to measure the candidates’

job-related knowledge. For each test, IOS compiled a list

of training manuals, Department procedures, and other 

materials to use as sources for the test questions. IOS 

presented the proposed sources to the New Haven fire

chief and assistant fire chief for their approval. Then, 

using the approved sources, IOS drafted a multiple-choice

test for each position. Each test had 100 questions, as 
Cite as: 557 U. S. ____ (2009) 5 

Opinion of the Court 

required by CSB rules, and was written below a 10thgrade reading level. After IOS prepared the tests, the City

opened a 3-month study period. It gave candidates a list

that identified the source material for the questions, including the specific chapters from which the questions

were taken. 

IOS developed the oral examinations as well. These 

concentrated on job skills and abilities. Using the jobanalysis information, IOS wrote hypothetical situations to 

test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among 

other things. Candidates would be presented with these 

hypotheticals and asked to respond before a panel of three 

assessors. 

IOS assembled a pool of 30 assessors who were superior 

in rank to the positions being tested. At the City’s insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials 

for approval. They were battalion chiefs, assistant chiefs,

and chiefs from departments of similar sizes to New Haven’s throughout the country. Sixty-six percent of the 

panelists were minorities, and each of the nine threemember assessment panels contained two minority members. IOS trained the panelists for several hours on the 

day before it administered the examinations, teaching 

them how to score the candidates’ responses consistently

using checklists of desired criteria.

Candidates took the examinations in November and 

December 2003. Seventy-seven candidates completed the

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 were vacant at the time of the examination. As the rule of three operated, this meant that the 

top 10 candidates were eligible for an immediate promo-
6 RICCI v. DESTEFANO 

Opinion of the Court 

tion to lieutenant. All 10 were white. Ibid. Subsequent

vacancies would have allowed at least 3 black candidates 

to be considered for promotion to lieutenant. 

Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 

candidates passed—16 whites, 3 blacks, and 3 Hispanics. 

Ibid. Seven captain positions were vacant at the 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 contract with IOS contemplated that, after

the examinations, IOS would prepare a technical report

that described the examination processes and methodologies and analyzed the results. But in January 2004, 

rather than requesting the technical report, City officials, 

including the City’s counsel, Thomas Ude, convened a 

meeting with IOS Vice President Chad Legel. (Legel was

the leader of the IOS team that developed and administered the tests.) Based on the test results, the City officials expressed concern that the tests had discriminated

against minority candidates. Legel defended the examinations’ validity, stating that any numerical disparity between white and minority candidates was likely due to 

various external factors and was in line with results of the 

Department’s previous promotional examinations. 

Several days after the meeting, Ude sent a letter to the

CSB purporting to outline its duties with respect to the 

examination results. Ude stated that under federal law, 

“a statistical demonstration of disparate impact,” standing

alone, “constitutes a sufficiently serious claim of racial

discrimination to serve as a predicate for employerinitiated, voluntar[y] remedies—even . . . race-conscious 

remedies.” App. to Pet. for Cert. in No. 07–1428, p. 443a;

see also 554 F. Supp. 2d, at 145 (issue of disparate impact 
Cite as: 557 U. S. ____ (2009) 7 

Opinion of the Court 

“appears to have been raised by . . . Ude”). 

1 

The CSB first met to consider certifying the results on

January 22, 2004. Tina Burgett, director of the City’s

Department of Human Resources, opened the meeting by 

telling the CSB that “there is a significant disparate impact on these two exams.” App. to Pet. for Cert. in No. 07– 

1428, at 466a. She distributed lists showing the candidates’ races and scores (written, oral, and composite) but 

not their names. Ude also described the test results as 

reflecting “a very significant disparate impact,” id., at 

477a, and he outlined possible grounds for the CSB’s

refusing to certify the results. 

Although they did not know whether they had passed or

failed, some firefighter-candidates spoke at the first CSB

meeting in favor of certifying the test results. Michael 

Blatchley stated that “[e]very one” of the questions on the 

written examination “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 Ricci stated that the test questions were based on

the Department’s own rules and procedures and on “nationally recognized” materials that represented the “accepted standard[s]” for firefighting. Id., at A785–A786. 

Ricci stated that he had “several learning disabilities,” 

including dyslexia; that he had spent more than $1,000 to

purchase the materials and pay his neighbor to read them

on tape so he could “give it [his] best shot”; and that he 

had studied “8 to 13 hours a day to prepare” for the test. 

Id., at A786, A789. “I don’t even know if I made it,” Ricci 

told the CSB, “[b]ut the people who passed should be

promoted. When your life’s on the line, second best may 

not be good enough.” Id., at A787–A788. 

Other firefighters spoke against certifying the test 
8 RICCI v. DESTEFANO 

Opinion of the Court 

results. They described the test questions as outdated or 

not relevant to firefighting practices in New Haven. Gary

Tinney stated that source materials “came out of New 

York. . . . Their makeup of their city and everything is

totally different than ours.” Id., at A774–A775; see also 

id., at A779, A780–A781. And they criticized the test

materials, a full set of which cost about $500, for being too 

expensive and too long. 

2 

At a second CSB meeting, on February 5, the president 

of the New Haven firefighters’ union asked the CSB to

perform a validation study to determine whether the tests 

were job-related. Petitioners’ counsel in this action argued

that the CSB should certify the results. A representative

of the International Association of Black Professional 

Firefighters, Donald Day from neighboring Bridgeport,

Connecticut, “beseech[ed]” the CSB “to throw away that 

test,” which he described as “inherently unfair” because of

the racial distribution of the results. Id., at A830–A831. 

Another Bridgeport-based representative of the association, Ronald Mackey, stated that a validation study was 

necessary. He suggested that the City could “adjust” the

test results to “meet the criteria of having a certain

amount of minorities get elevated to the rank of Lieutenant and Captain.” Id., at A838. At the end of this meeting, the CSB members agreed to ask IOS to send a representative to explain how it had developed and 

administered the examinations. They also discussed 

asking a panel of experts to review the examinations and 

advise the CSB whether to certify the results. 

3 

At a third meeting, on February 11, Legel addressed the

CSB on behalf of IOS. Legel stated that IOS had previously prepared entry-level firefighter examinations for the 
Cite as: 557 U. S. ____ (2009) 9 

Opinion of the Court 

City but not a promotional examination. He explained

that IOS had developed examinations for departments in

communities with demographics similar to New Haven’s,

including Orange County, Florida; Lansing, Michigan; and 

San Jose, California. 

Legel explained the exam-development process to the

CSB. He began by describing the job analyses IOS performed of the captain and lieutenant positions—the interviews, ride-alongs, and questionnaires IOS designed to 

“generate a list of tasks, knowledge, skills and abilities 

that are considered essential to performance” of the jobs. 

Id., at A931–A932. He outlined how IOS prepared the 

written and oral examinations, based on the job-analysis 

results, to test most heavily those qualities that the results 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 the CSB that third-party reviewers had scrutinized the examinations to ensure that the written test was 

drawn from the source material and that the oral test 

accurately tested real-world situations that captains and 

lieutenants would face. Legel confirmed that IOS had 

selected oral-examination panelists so that each threemember assessment panel included one white, one black, 

and one Hispanic member.

Near the end of his remarks, Legel “implor[ed] anyone 

that had . . . concerns to review the content of the exam. 

In my professional opinion, it’s facially neutral. There’s 

nothing in those examinations . . . that should cause 

somebody to think that one group would perform differently 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 little bit about 

their views of the testing, the process, [and] the methodol-
10 RICCI v. DESTEFANO 

Opinion of the Court 

ogy.” Id., at A1020. The first, Christopher Hornick, spoke 

to the CSB by telephone. Hornick is an industrial/organizational psychologist from Texas who operates 

a consulting business that “direct[ly]” competes with IOS. 

Id., at A1029. Hornick, who had not “stud[ied] the test at 

length or in detail” and had not “seen the job analysis

data,” told the CSB that the scores indicated a “relatively

high adverse impact.” Id., at A1028, A1030, A1043. He 

stated that “[n]ormally, whites outperform ethnic minorities on the majority of standardized testing procedures,” 

but that he was “a little surprised” by the disparity in the

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 A1028–A1029. Hornick stated that 

the “adverse impact on the written exam was somewhat

higher but generally in the range that we’ve seen professionally.” Id., at A1030–A1031. 

When asked to explain the New Haven test results,

Hornick opined in the telephone conversation that the 

collective-bargaining agreement’s requirement of using 

written and oral examinations with a 60/40 composite 

score might account for the statistical disparity. He also 

stated that “[b]y not having anyone from within the

[D]epartment review” the tests before they were administered—a limitation the City had imposed to protect the

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. Hornick suggested that testing candidates at an “assessment 

center” rather than using written and oral examinations

“might serve [the City’s] needs better.” Id., at A1039– 

A1040. Hornick stated that assessment centers, where 

candidates face real-world situations and respond just as

they would in the field, allow candidates “to demonstrate 

how they would address a particular problem as opposed

to just verbally saying it or identifying the correct option 
Cite as: 557 U. S. ____ (2009) 11 

Opinion of the Court 

on a written test.” Ibid. 

Hornick made clear that he was “not suggesting that

[IOS] somehow created a test that had adverse impacts

that it should not have had.” Id., at A1038. He described 

the IOS examinations as “reasonably good test[s].” Id., at 

A1041. He stated that the CSB’s best option might be to 

“certify the list as it exists” and work to change the process for future tests, including by “[r]ewriting the Civil 

Service Rules.” Ibid. Hornick concluded his telephonic

remarks by telling the CSB that “for the future,” his company “certainly would like to help you if we can.” Id., at 

A1046. 

The second witness was Vincent Lewis, a fire program

specialist for the Department of Homeland Security and a

retired fire captain from Michigan. Lewis, who is black, 

had looked “extensively” at the lieutenant exam and “a

little less extensively” at the captain exam. He stated that 

the candidates “should know that material.” Id., at 

A1048, A1052. In Lewis’s view, the “questions were relevant for both exams,” and the New Haven candidates had 

an advantage because the study materials identified the

particular book chapters from which the questions were 

taken. In other departments, by contrast, “you had to 

know basically the . . . entire book.” Id., at A1053. Lewis 

concluded that any disparate impact likely was due to a

pattern that “usually whites outperform some of the minorities on testing,” or that “more whites . . . take the 

exam.” Id., at A1054. 

The final witness was Janet Helms, a professor at Boston College whose “primary area of expertise” is “not with

firefighters per se” but in “race and culture as they influence performance on tests and other assessment procedures.” Id., at A1060. Helms expressly declined the CSB’s

offer to review the examinations. At the outset, she noted 

that “regardless of what kind of written test we give in

this country . . . we can just about predict how many peo-
12 RICCI v. DESTEFANO 

Opinion of the Court 

ple will pass who are members of under-represented 

groups. And your data are not that inconsistent with 

what predictions would say were the case.” Id., at A1061. 

Helms nevertheless offered several “ideas about what 

might be possible factors” to explain statistical differences

in the results. Id., at A1062. She concluded that because 

67 percent of the respondents to the job-analysis questionnaires were white, the test questions might have favored

white candidates, because “most of the literature on firefighters shows that the different groups perform the job

differently.” Id., at A1063. Helms closed by stating that

no matter what test the City had administered, it would 

have revealed “a disparity between blacks and whites,

Hispanics and whites,” particularly on a written test. Id., 

at A1072. 

5 

At the final CSB meeting, on March 18, Ude (the City’s

counsel) argued against certifying the examination results. 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 procedures” to determine whether they violated the disparateimpact provision of Title VII. Ude focused the CSB on 

determining “whether there are other ways to test for . . .

those positions that are equally valid with less adverse 

impact.” Id., at A1101. Ude described Hornick as having 

said that the written examination “had one of the most 

severe adverse impacts that he had seen” and that “there

are much better alternatives to identifying [firefighting]

skills.” Ibid. Ude offered his “opinion that promotions . . . 

as a result of these tests would not be consistent with 

federal law, would not be consistent with the purposes of

our Civil Service Rules or our Charter[,] nor is it in the

best interests of the firefighters . . . who took the exams.” 

Id., at A1103–A1104. He stated that previous Department 
Cite as: 557 U. S. ____ (2009) 13 

Opinion of the Court 

exams “have not had this kind of result,” and that previous results had not been “challenged as having adverse 

impact, whereas we are assured that these will be.” Id., at 

A1107, A1108. 

CSB Chairman Segaloff asked Ude several questions

about the Title VII disparate-impact standard. 

“CHAIRPERSON SEGALOFF: [M]y understanding 

is the group . . . that is making to throw the exam out 

has the burden of showing that there is out there an 

exam that is reasonably probable or likely to have less

of an adverse impact. It’s not our burden to show that 

there’s an exam out there that can be better. We’ve 

got an exam. We’ve got a result. . . .

“MR. UDE: Mr. Chair, I point out that Dr. Hornick 

said that. He said that there are other tests out there 

that would have less adverse impact and that [would] 

be more valid. 

“CHAIRPERSON SEGALOFF: You think that’s 

enough for us to throw this test upside-down . . . because Dr. Hornick said it? 

“MR. UDE: I think that by itself would be sufficient. 

Yes. I also would point out that . . . it is the employer’s burden to justify the use of the examination.” 

Id., at A1108–A1109. 

Karen DuBois-Walton, the City’s chief administrative

officer, spoke on behalf of Mayor John DeStefano and 

argued against certifying the results. DuBois-Walton 

stated that the results, when considered under the rule of 

three and applied to then-existing captain and lieutenant 

vacancies, created a situation in which black and Hispanic 

candidates were disproportionately excluded from opportunity. DuBois-Walton also relied on Hornick’s testimony, 

asserting that Hornick “made it extremely clear that . . . 

there are more appropriate ways to assess one’s ability to

serve” as a captain or lieutenant. Id., at A1120. 
14 RICCI v. DESTEFANO 

Opinion of the Court 

Burgett (the human resources director) asked the CSB

to discard the examination results. She, too, relied on 

Hornick’s statement to show the existence of alternative 

testing methods, describing Hornick as having “started to 

point out that alternative testing does exist” and as having 

“begun to suggest that there are some different ways of

doing written examinations.” Id., at A1125, A1128. 

Other witnesses addressed the CSB. They included the

president of the New Haven firefighters’ union, who supported certification. He reminded the CSB that Hornick 

“also concluded that the tests were reasonable and fair 

and under the current structure to certify them.” Id., at 

A1137. Firefighter Frank Ricci again argued for certification; he stated that although “assessment centers in some

cases show less adverse impact,” id., at A1140, they were

not available alternatives for the current round of promotions. It would take several years, Ricci explained, for the 

Department to develop an assessment-center protocol and 

the accompanying training materials. Id., at A1141. 

Lieutenant Matthew Marcarelli, who had taken the captain’s exam, spoke in favor of certification. 

At the close of witness testimony, the CSB voted on a 

motion to certify the examinations. With one member 

recused, the CSB deadlocked 2 to 2, resulting in a decision 

not to certify the results. Explaining his vote to certify the 

results, Chairman Segaloff stated that “nobody convinced

me that we can feel comfortable that, in fact, there’s some 

likelihood that there’s going to be an exam designed that’s

going to be less discriminatory.” Id., at A1159–A1160. 

C 

The CSB’s decision not to certify the examination results led to this lawsuit. The plaintiffs—who are the 

petitioners here—are 17 white firefighters and 1 Hispanic 

firefighter who passed the examinations but were denied a 

chance at promotions when the CSB refused to certify the 
Cite as: 557 U. S. ____ (2009) 15 

Opinion of the Court 

test results. They include the named plaintiff, Frank 

Ricci, who addressed the CSB at multiple meetings. 

Petitioners sued the City, Mayor DeStefano, DuBoisWalton, Ude, Burgett, and the two CSB members who

voted against certification. Petitioners also named as a 

defendant Boise Kimber, a New Haven resident who 

voiced strong opposition to certifying the results. Those 

individuals are respondents in this Court. Petitioners 

filed suit under Rev. Stat. §§1979 and 1980, 42 U. S. C.

§§1983 and 1985, alleging that respondents, by arguing or

voting against certifying the results, violated and conspired to violate the Equal Protection Clause of the Fourteenth Amendment. Petitioners also filed timely charges

of discrimination with the Equal Employment Opportunity Commission (EEOC); upon the EEOC’s issuing rightto-sue letters, petitioners amended their complaint to

assert that the City violated the disparate-treatment

prohibition contained in Title VII of the Civil Rights Act of

1964, as amended. See 42 U. S. C. §§2000e–2(a). 

The parties filed cross-motions for summary judgment. 

Respondents asserted they had a good-faith belief that 

they would have violated the disparate-impact prohibition 

in Title VII, §2000e–2(k), had they certified the examination results. It follows, they maintained, that they cannot 

be held liable under Title VII’s disparate-treatment provision for attempting to comply with Title VII’s disparateimpact bar. Petitioners countered that respondents’ goodfaith belief was not a valid defense to allegations of disparate treatment and unconstitutional discrimination. 

The District Court granted summary judgment for 

respondents. 554 F. Supp. 2d 142. It described petitioners’ argument as “boil[ing] down to the assertion that if

[respondents] cannot prove that the disparities on the 

Lieutenant and Captain exams were due to a particular 

flaw inherent in those exams, then they should have 

certified the results because there was no other alterna-
16 RICCI v. DESTEFANO 

Opinion of the Court 

tive in place.” Id., at 156. The District Court concluded 

that, “[n]otwithstanding the shortcomings in the evidence

on existing, effective alternatives, it is not the case that

[respondents] must certify a test where they cannot pinpoint 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 based on a test

with a racially disparate impact . . . does not, as a matter 

of law, constitute discriminatory intent” under Title VII. 

Id., at 160. The District Court rejected petitioners’ equal 

protection claim on the theory that respondents had not 

acted because of “discriminatory animus” toward petitioners. Id., at 162. It concluded that respondents’ actions 

were not “based on race” because “all applicants took the 

same test, and the result was the same for all because the 

test results were discarded and nobody was promoted.” 

Id., at 161. 

After full briefing and argument by the parties, the 

Court of Appeals affirmed in a one-paragraph, unpublished summary order; it later withdrew that order, issuing in its place a nearly identical, one-paragraph per 

curiam opinion adopting the District Court’s reasoning.

530 F. 3d 87 (CA2 2008). Three days later, the Court of 

Appeals voted 7 to 6 to deny rehearing en banc, over written dissents by Chief Judge Jacobs and Judge Cabranes.

530 F. 3d 88. 

This action presents two provisions of Title VII to be

interpreted and reconciled, with few, if any, precedents in 

the courts of appeals discussing the issue. Depending on

the resolution of the statutory claim, a fundamental constitutional question could also arise. We found it prudent 

and appropriate to grant certiorari. 555 U. S. ___ (2009). 

We now reverse. 
Cite as: 557 U. S. ____ (2009) 17 

Opinion of the Court 

II 

Petitioners raise a statutory claim, under the disparatetreatment prohibition of Title VII, and a constitutional 

claim, under the Equal Protection Clause of the Fourteenth Amendment. A decision for petitioners on their 

statutory claim would provide the relief sought, so we 

consider it first. See Atkins v. Parker, 472 U. S. 115, 123 

(1985); Escambia County v. McMillan, 466 U. S. 48, 51 

(1984) (per curiam) (“[N]ormally the Court will not decide 

a constitutional question if there is some other ground

upon which to dispose of the case”). 

A 

Title VII of the Civil Rights Act of 1964, 42 U. S. C.

§2000e et seq., as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or

national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, 

in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on 

minorities (known as “disparate impact”). 

As enacted in 1964, Title VII’s principal nondiscrimination provision held employers liable only for disparate 

treatment. That section retains its original wording today. It makes it unlawful for an employer “to fail or refuse

to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex,

or national origin.” §2000e–2(a)(1); see also 78 Stat. 255. 

Disparate-treatment cases present “the most easily understood type of discrimination,” Teamsters v. United States, 

431 U. S. 324, 335, n. 15 (1977), and occur where an employer has “treated [a] particular person less favorably

than others because of” a protected trait. Watson v. Fort 

Worth Bank & Trust, 487 U. S. 977, 985–986 (1988). A 
18 RICCI v. DESTEFANO 

Opinion of the Court 

disparate-treatment plaintiff must establish “that the 

defendant had a discriminatory intent or motive” for

taking a job-related action. Id., at 986. 

The Civil Rights Act of 1964 did not include an express

prohibition on policies or practices that produce a disparate impact. But in Griggs v. Duke Power Co., 401 U. S. 

424 (1971), the Court interpreted the Act to prohibit, in 

some cases, employers’ facially neutral practices that, in

fact, are “discriminatory in operation.” Id., at 431. The 

Griggs Court stated that the “touchstone” for disparateimpact liability is the lack of “business necessity”: “If an 

employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the

practice is prohibited.” Ibid.; see also id., at 432 (employer’s burden to demonstrate that practice has “a manifest relationship to the employment in question”); Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975). 

Under those precedents, if an employer met its burden by 

showing that its practice was job-related, the plaintiff was 

required to show a legitimate alternative that would have 

resulted in less discrimination. Ibid. (allowing complaining party to show “that other tests or selection devices,

without a similarly undesirable racial effect, would also 

serve the employer’s legitimate interest”).

 Twenty years after Griggs, the Civil Rights Act of 1991, 

105 Stat. 1071, was enacted. The Act included a provision 

codifying the prohibition on disparate-impact discrimination. That provision is now in force along with the disparate-treatment section already noted. Under the disparate-impact statute, a plaintiff establishes a prima facie 

violation by showing that an employer uses “a particular 

employment practice that causes a disparate impact on

the basis of race, color, religion, sex, or national origin.” 

42 U. S. C. §2000e–2(k)(1)(A)(i). An employer may defend

against liability by demonstrating that the practice is “job 

related for the position in question and consistent with 
Cite as: 557 U. S. ____ (2009) 19 

Opinion of the Court 

business necessity.” Ibid. Even if the employer meets

that burden, however, a plaintiff may still succeed by 

showing that the employer refuses to adopt an available

alternative employment practice 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 CSB refused to certify

the captain and lieutenant exam results based on the race

of the successful candidates, it discriminated against them

in violation of Title VII’s disparate-treatment provision. 

The City counters that its decision was permissible because the tests “appear[ed] to violate Title VII’s disparateimpact provisions.” Brief for Respondents 12.

Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of

Title VII absent some valid defense. All the evidence 

demonstrates that the City chose not to certify the examination results because of the statistical disparity based on 

race—i.e., how minority candidates had performed when

compared to white candidates. As the District Court put 

it, the City rejected the test results because “too many 

whites and not enough minorities would be promoted were

the lists to be certified.” 554 F. Supp. 2d, at 152; see also 

ibid. (respondents’ “own arguments . . . show that the 

City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without 

some other justification, this express, race-based decisionmaking violates Title VII’s command that employers

cannot take adverse employment actions because of an

individual’s race. See §2000e–2(a)(1).

The District Court did not adhere to this principle,

however. It held that respondents’ “motivation to avoid 

making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute 
20 RICCI v. DESTEFANO 

Opinion of the Court 

discriminatory intent.” 554 F. Supp. 2d, at 160. And the 

Government makes a similar argument in this Court. It 

contends that the “structure of Title VII belies any claim 

that an employer’s intent to comply with Title VII’s disparate-impact provisions constitutes prohibited discrimination on the basis of race.” Brief for United States as 

Amicus Curiae 11. But both of those statements turn 

upon the City’s objective—avoiding disparate-impact

liability—while ignoring the City’s conduct in the name of 

reaching that objective. Whatever the City’s ultimate

aim—however well intentioned or benevolent it might

have seemed—the City made its employment decision

because of race. The City rejected the test results solely

because the higher scoring candidates were white. The 

question is not whether that conduct was discriminatory 

but whether the City had a lawful justification for its racebased action. 

We consider, therefore, whether the purpose to avoid 

disparate-impact liability excuses what otherwise would 

be prohibited disparate-treatment discrimination. Courts 

often confront cases in which statutes and principles point 

in different directions. Our task is to provide guidance to

employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. 

In providing this guidance our decision must be consistent 

with the important purpose of Title VII—that the workplace be an environment free of discrimination, where race 

is not a barrier to opportunity.

With these principles in mind, we turn to the parties’ 

proposed means of reconciling the statutory provisions. 

Petitioners take a strict approach, arguing that 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 violates the disparate-impact provision. See Brief 

for Petitioners 43. Petitioners would have us hold that, 
Cite as: 557 U. S. ____ (2009) 21 

Opinion of the Court 

under Title VII, avoiding unintentional discrimination 

cannot justify intentional discrimination. That assertion, 

however, ignores the fact that, by codifying the disparateimpact provision in 1991, Congress has expressly prohibited both types of discrimination. We must interpret the

statute to give effect to both provisions where possible. 

See, e.g., United States v. Atlantic Research Corp., 

551 U. S. 128, 137 (2007) (rejecting an interpretation 

that would render a statutory 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 provision before it 

can use compliance as a defense in a disparate-treatment 

suit. Again, this is overly simplistic and too restrictive of 

Title VII’s purpose. The rule petitioners offer would run 

counter to what we have recognized as Congress’s intent 

that “voluntary compliance” be “the preferred means of 

achieving the objectives of Title VII.” Firefighters v. Cleveland, 478 U. S. 501, 515 (1986); see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 290 (1986) (O’Connor, J.,

concurring in part and concurring in judgment). Forbidding employers to act unless they know, with certainty, 

that a practice violates the disparate-impact provision

would bring compliance efforts to a near standstill. Even 

in the limited situations when this restricted standard 

could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in

the course of litigation and then held to account for disparate treatment. 

At the opposite end of the spectrum, respondents and 

the Government assert that an employer’s good-faith belief 

that its actions are necessary to comply with Title VII’s 

disparate-impact provision should be enough to justify 

race-conscious conduct. But the original, foundational 

prohibition of Title VII bars employers from taking ad-
22 RICCI v. DESTEFANO 

Opinion of the Court 

verse action “because of . . . race.” §2000e–2(a)(1). And 

when Congress codified the disparate-impact provision in 

1991, it made no exception to disparate-treatment liability 

for actions taken in a good-faith effort to comply with the

new, disparate-impact provision in subsection (k). Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact 

liability would encourage race-based action at the slightest 

hint of disparate impact. A minimal standard could cause 

employers to discard the results of lawful and beneficial

promotional examinations even where there is little if any 

evidence of disparate-impact discrimination. That would 

amount to a de facto quota system, in which a “focus on

statistics . . . could put undue pressure on employers to 

adopt inappropriate prophylactic measures.” Watson, 487 

U. S., at 992 (plurality opinion). Even worse, an employer 

could discard test results (or other employment practices)

with the intent of obtaining the employer’s preferred racial 

balance. That operational principle could not be justified,

for Title VII is express in disclaiming any interpretation of

its requirements as calling for outright racial balancing. 

§2000e–2(j). The purpose of Title VII “is to promote hiring 

on the basis of job qualifications, rather than on the basis 

of race or color.” Griggs, 401 U. S., at 434. 

In searching for a standard that strikes a more appropriate balance, we note that this Court has considered 

cases similar to this one, albeit in the context of the Equal

Protection Clause of the Fourteenth Amendment. The 

Court has held that certain government actions to remedy

past racial discrimination—actions that are themselves 

based on race—are constitutional only where there is a 

“‘strong basis in evidence’” that the remedial actions were 

necessary. Richmond v. J. A. Croson Co., 488 U. S. 469, 

500 (1989) (quoting Wygant, supra, at 277 (plurality opinion)). This suit does not call on us to consider whether the 

statutory constraints under Title VII must be parallel in 
Cite as: 557 U. S. ____ (2009) 23 

Opinion of the Court 

all respects to those under the Constitution. That does not 

mean the constitutional authorities are irrelevant, however. Our cases discussing constitutional principles can 

provide helpful guidance in this statutory context. See 

Watson, supra, at 993 (plurality opinion). 

Writing for a plurality in Wygant and announcing the

strong-basis-in-evidence standard, Justice Powell recognized the tension between eliminating segregation and 

discrimination on the one hand and doing away with all 

governmentally imposed discrimination based on race on 

the other. 476 U. S., at 277. The plurality stated that 

those “related constitutional duties are not always harmonious,” and that “reconciling them requires . . . employers

to act with extraordinary care.” Ibid. The plurality required a strong basis in evidence because “[e]videntiary 

support for the conclusion that remedial action is warranted becomes crucial when the remedial program is 

challenged in court by nonminority employees.” Ibid. The 

Court applied the same standard in Croson, observing that

“an amorphous claim that there has been past discrimination . . . cannot justify the use of an unyielding racial

quota.” 488 U. S., at 499. 

The same interests are at work in the interplay between

the disparate-treatment and disparate-impact provisions 

of Title VII. Congress has imposed liability on employers

for unintentional discrimination in order to rid the workplace of “practices that are fair in form, but discriminatory

in operation.” Griggs, supra, at 431. But it has also prohibited employers from taking adverse employment actions “because of” race. §2000e–2(a)(1). Applying the

strong-basis-in-evidence standard to Title VII gives effect

to both the disparate-treatment and disparate-impact 

provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ 

voluntary compliance efforts, which are essential to the 
24 RICCI v. DESTEFANO 

Opinion of the Court 

statutory scheme and to Congress’s efforts to eradicate

workplace discrimination. See Firefighters, supra, at 515. 

And the standard appropriately constrains employers’

discretion in making race-based decisions: It limits that 

discretion to cases in which there is a strong basis in

evidence of disparate-impact liability, but it is not so

restrictive that it allows employers to act only when there

is a provable, actual violation.

Resolving the statutory conflict in this way allows the

disparate-impact prohibition to work in a manner that is

consistent with other provisions of Title VII, including the 

prohibition on adjusting employment-related test scores 

on the basis of race. See §2000e–2(l). Examinations like 

those administered by the City create legitimate expectations on the part of those who took the tests. As is the 

case with any promotion exam, some of the firefighters

here invested substantial time, money, and personal 

commitment in preparing for the tests. Employment tests 

can be an important part of a neutral selection system

that safeguards against the very racial animosities Title 

VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics.

If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it 

may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of

promotion-eligible candidates—absent a strong basis in

evidence that the test was deficient and that discarding

the results is necessary to avoid violating the disparateimpact provision. Restricting an employer’s ability to

discard test results (and thereby discriminate against 

qualified candidates on the basis of their race) also is in 

keeping with Title VII’s express protection of bona fide

promotional examinations. See §2000e–2(h) (“[N]or shall 

it be an unlawful employment practice for an employer to 
Cite as: 557 U. S. ____ (2009) 25 

Opinion of the Court 

give and to act upon the results of any professionally

developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race”); cf. AT&T 

Corp. v. Hulteen, 556 U. S. ___, ___ (2009) (slip op., at 8). 

For the foregoing reasons, we adopt the strong-basis-inevidence standard as a matter of statutory construction to

resolve any conflict between the disparate-treatment and

disparate-impact provisions of Title VII. 

Our statutory holding does not address the constitutionality of the measures taken here in purported 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 ever sufficient to justify discriminatory

treatment under the Constitution. 

Nor do we question an employer’s affirmative efforts to

ensure that all groups have a fair opportunity to apply for

promotions and to participate in the process by which 

promotions will be made. But once that process has been

established and employers have made clear their selection

criteria, they may not then invalidate the test results, 

thus upsetting an employee’s legitimate expectation not to

be judged on the basis of race. Doing so, absent a strong 

basis in evidence of an impermissible disparate impact, 

amounts to the sort of racial preference that Congress has 

disclaimed, §2000e–2(j), and is antithetical to the notion of 

a workplace where individuals are guaranteed equal 

opportunity regardless of race. 

Title VII does not prohibit an employer from considering, before administering a test or practice, how to design

that test or practice in order to provide a fair opportunity

for all individuals, regardless of their race. And when, 

during the test-design stage, an employer invites com-
26 RICCI v. DESTEFANO 

Opinion of the Court 

ments to ensure the test is fair, that process can provide a 

common ground for open discussions toward that end. We 

hold only that, under Title VII, before an employer can 

engage in intentional discrimination for the asserted

purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in

evidence to believe it will be subject to disparate-impact 

liability if it fails to take the race-conscious, discriminatory action. 

C 

The City argues that, even under the strong-basis-inevidence standard, its decision to discard the examination 

results was permissible under Title VII. That is incorrect. 

Even if respondents were motivated as a subjective matter 

by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for 

the conclusion that respondents had an objective, strong 

basis in evidence to find the tests inadequate, with some

consequent disparate-impact liability in violation of Title 

VII. 

On this basis, we conclude that petitioners have met

their obligation to demonstrate that there is “no genuine 

issue as to any material fact” and that they are “entitled to

judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c).

On a motion for summary judgment, “facts must be viewed 

in the light most favorable to the nonmoving party only if

there is a ‘genuine’ dispute as to those facts.” Scott v. 

Harris, 550 U. S. 372, 380 (2007). “Where the record 

taken as a whole could not lead a rational trier of fact to 

find for the nonmoving party, there is no genuine issue for 

trial.” Matsushita Elec. Industrial Co. v. Zenith Radio 

Corp., 475 U. S. 574, 587 (1986) (internal quotation marks

omitted). In this Court, the City’s only defense is that it

acted to comply with Title VII’s disparate-impact provision. To succeed on their motion, then, petitioners must 
Cite as: 557 U. S. ____ (2009) 27 

Opinion of the Court 

demonstrate that there can be no genuine dispute that 

there was no strong basis in evidence for the City to conclude it would face disparate-impact liability if it certified 

the examination results. See Celotex Corp. v. Catrett, 477 

U. S. 317, 324 (1986) (where the nonmoving party “will

bear the burden of proof at trial on a dispositive issue,” the 

nonmoving party bears the burden of production under

Rule 56 to “designate specific facts showing that there is 

a genuine issue for trial” (internal quotation marks 

omitted)).

The racial adverse impact here was significant, and

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 both black and Hispanic 

candidates. On the lieutenant exam, the pass rate for

white candidates was 58.1 percent; for black candidates,

31.6 percent; and for Hispanic candidates, 20 percent. The 

pass rates of minorities, which were approximately onehalf the pass rates for white candidates, fall well below the

80-percent standard set by the EEOC to implement the 

disparate-impact provision of Title VII. See 29 CFR 

§1607.4(D) (2008) (selection rate that is less than 80 percent “of the rate for the group with the highest rate will 

generally be regarded by the Federal enforcement agencies as evidence of adverse impact”); Watson, 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 ranked and an application of 

the “rule of three,” certifying the examinations would have

meant that the City could not have considered black candidates for any of the then-vacant lieutenant or captain 

positions.

Based on the degree of adverse impact reflected in the

results, respondents were compelled to take a hard look at

the examinations to determine whether certifying the 
28 RICCI v. DESTEFANO 

Opinion of the Court 

results would have had an impermissible disparate impact. The problem for respondents is that a prima facie 

case of disparate-impact liability—essentially, a threshold 

showing of a significant statistical disparity, Connecticut 

v. Teal, 457 U. S. 440, 446 (1982), and nothing more—is

far from a strong basis in evidence that the City would

have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were

not job related and consistent with business necessity, or if 

there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused

to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no 

strong basis in evidence to establish that the test was

deficient in either of these respects. We address each of 

the two points in turn, based on the record developed by

the parties through discovery—a record that concentrates

in substantial part on the statements various witnesses 

made to the CSB. 

1 

There is no genuine dispute that the examinations were 

job-related and consistent with business necessity. The 

City’s assertions to the contrary are “blatantly contradicted by the record.” Scott, supra, at 380. The CSB 

heard statements from Chad Legel (the IOS vice president) as well as city officials outlining the detailed steps

IOS took to develop and administer the examinations.

IOS devised the written examinations, which were the 

focus of the CSB’s inquiry, after painstaking analyses of 

the captain and lieutenant positions—analyses in which

IOS made sure that minorities were overrepresented. And 

IOS drew the questions from source material approved by

the Department. Of the outside witnesses who appeared

before the CSB, only one, Vincent Lewis, had reviewed the 

examinations in any detail, and he was the only one with 
Cite as: 557 U. S. ____ (2009) 29 

Opinion of the Court 

any firefighting experience. Lewis stated that the “questions were relevant for both exams.” CA2 App. A1053. 

The only other witness who had seen any part of the examinations, 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] to be . . . reasonably good” and recommended that

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

Arguing that the examinations were not job-related, 

respondents note some candidates’ complaints that certain

examination questions were contradictory or did not specifically apply to firefighting practices in New Haven. But 

Legel told the CSB that IOS had addressed those concerns—that it entertained “a handful” of challenges to the 

validity of particular examination questions, that it “reviewed those challenges and provided feedback [to the

City] as to what we thought the best course of action was,” 

and that he could remember at least one question IOS had 

thrown out (“offer[ing] credit to everybody for that particular question”). Id., at A955–A957. For his part, Hornick 

said he “suspect[ed] that some of the criticisms . . . [leveled] by candidates” were not valid. Id., at A1035. 

The City, moreover, turned a blind eye to evidence that

supported the exams’ validity. Although the City’s contract with IOS contemplated that IOS would prepare a

technical report consistent with EEOC guidelines for

examination-validity studies, the City made no request for 

its report. After the January 2004 meeting between Legel 

and some of the city-official respondents, in which Legel

defended the examinations, the City sought no further

information from IOS, save its appearance at a CSB meeting to explain how it developed and administered the

examinations. IOS stood ready to provide respondents 

with detailed information to establish the validity of the 
30 RICCI v. DESTEFANO 

Opinion of the Court 

exams, but respondents did not accept that offer. 

2 

Respondents also lacked a strong basis in evidence of an 

equally valid, less-discriminatory testing alternative that 

the City, by certifying the examination results, would 

necessarily have refused to adopt. Respondents raise

three arguments to the contrary, but each argument fails.

First, respondents refer to testimony before the CSB that 

a different composite-score calculation—weighting the 

written and oral examination scores 30/70—would have

allowed the City to consider two black candidates for thenopen lieutenant positions and one black candidate for

then-open captain positions. (The City used a 60/40 

weighting as required by its contract with the New Haven 

firefighters’ union.) But respondents have produced no

evidence to show that the 60/40 weighting was indeed

arbitrary. In fact, because that formula was the result of a 

union-negotiated collective-bargaining agreement, we 

presume the parties negotiated that weighting for a rational reason. Nor does the record contain any evidence

that the 30/70 weighting would be an equally valid way to

determine whether candidates possess the proper mix of

job knowledge and situational skills to earn promotions. 

Changing the weighting formula, moreover, could well

have violated Title VII’s prohibition of altering test scores

on the basis of race. See §2000e–2(l). On this record, 

there is no 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 interpretation of the “rule of three”

that would have produced less discriminatory results. The 

rule, in the New Haven city charter, requires the City to 

promote only from “those applicants with the three highest scores” on a promotional examination. New Haven, 

Conn., Code of Ordinances, Tit. I, Art. XXX, §160 (1992). 
Cite as: 557 U. S. ____ (2009) 31 

Opinion of the Court 

A state court has interpreted the charter to prohibit socalled “banding”—the City’s previous practice of rounding 

scores to the nearest whole number and considering all 

candidates with the same whole-number score as being of 

one rank. Banding allowed the City to consider three 

ranks of candidates (with the possibility of multiple candidates filling each rank) for purposes of the rule of three. 

See Kelly v. New Haven, No. CV000444614, 2004 WL 

114377, *3 (Conn. Super. Ct., Jan. 9, 2004). Respondents 

claim that employing banding here would have made four 

black and one Hispanic candidates eligible for then-open 

lieutenant and captain positions. 

A state court’s prohibition of banding, as a matter of 

municipal law under the charter, may not eliminate banding as a valid alternative under Title VII. See 42 U. S. C. 

§2000e–7. We need not resolve that point, however. Here, 

banding was not a valid alternative for this reason: Had 

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 basis of race. §2000e–2(l); see also 

Chicago Firefighters Local 2 v. Chicago, 249 F. 3d 649, 656 

(CA7 2001) (Posner, J.) (“We have no doubt that if banding 

were adopted in order to make lower black scores seem

higher, it would indeed be . . . forbidden”). As a matter of 

law, banding was not an alternative available to the City

when it was considering whether to certify the examination results. 

Third, and finally, respondents refer to statements by

Hornick in his telephone interview with the CSB regarding alternatives to the written examinations. Hornick 

stated his “belie[f]” that an “assessment center process,” 

which would have evaluated candidates’ behavior in typical job tasks, “would have demonstrated less adverse

impact.” CA2 App. A1039. But Hornick’s brief mention of 

alternative testing methods, standing alone, does not raise 
32 RICCI v. DESTEFANO 

Opinion of the Court 

a genuine issue of material fact that assessment centers

were available to the City at the time of the examinations

and that they would have produced less adverse impact.

Other statements to the CSB indicated that the Department could not have used assessment centers for the 2003 

examinations. Supra, at 14. And although respondents 

later argued to the CSB that Hornick had pushed the City

to reject the test results, supra, at 15–17, the truth is that 

the essence of Hornick’s remarks supported its certifying

the test results. See Scott, 550 U. S., at 380. Hornick 

stated that adverse impact in standardized testing “has

been in existence since the beginning of testing,” CA2 App. 

A1037, and that the disparity in New Haven’s test results 

was “somewhat higher but generally in the range that 

we’ve seen professionally.” Id., at A1030–A1031. He told 

the CSB he was “not suggesting” that IOS “somehow

created a test that had adverse impacts that it should not 

have had.” Id., at A1038. And he suggested that the CSB 

should “certify the list as it exists.” Id., at A1041. 

Especially when it is noted that the strong-basis-inevidence standard applies, respondents cannot create a

genuine issue of fact based on a few stray (and contradictory) statements in the record. And there is no doubt 

respondents fall short of the mark by relying entirely on

isolated statements by Hornick. Hornick had not 

“stud[ied] the 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 the

frustration of CSB members—was marketing his services 

for the future, 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: The City has since hired

him as a consultant. As for the other outside witnesses 

who spoke to the CSB, Vincent Lewis (the retired fire 
Cite as: 557 U. S. ____ (2009) 33 

Opinion of the Court 

captain) thought the CSB should certify the test results.

And Janet Helms (the Boston College professor) declined 

to review the examinations and told the CSB that, as a 

society, “we need to develop a new way of assessing people.” Id., at A1073. That task was beyond the reach of the 

CSB, which was concerned with the adequacy of the test

results before it. 

3 

On the record before us, there is no genuine dispute that

the City lacked a strong basis in evidence to believe it 

would face disparate-impact liability if it certified the

examination results. In other words, there is no evidence 

—let alone the required strong basis in evidence—that the

tests were flawed because they were not job-related or

because other, 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, and summary judgment is

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 procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. 

Respondents thought about promotion qualifications and 

relevant experience in neutral ways. They were careful to 

ensure broad racial participation in the design of the test

itself and its administration. As we have discussed at 

length, the process was open and fair.

The problem, of course, is that after the tests were

completed, the raw racial results became the predominant 
34 RICCI v. DESTEFANO 

Opinion of the Court 

rationale for the City’s refusal to certify the results. The 

injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing

process on the terms the City had established for the 

promotional process. Many of the candidates had studied 

for months, at considerable personal and financial expense, 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 with arguments both for and 

against certifying the test results—and threats of a lawsuit either way—the City was required to make a difficult

inquiry. But its hearings produced no strong evidence of a 

disparate-impact violation, and the City was not entitled 

to disregard the tests based solely on the racial disparity

in the results. 

Our holding today clarifies how Title VII applies to 

resolve competing expectations under the disparatetreatment and disparate-impact provisions. If, after it 

certifies the test results, the City faces a disparate-impact

suit, then in light of our holding today it should be clear 

that the City would avoid disparate-impact liability based 

on the strong basis in evidence that, had it not certified 

the results, it would have been subject to disparatetreatment liability.

Petitioners are entitled to summary judgment on their

Title VII claim, and we therefore need not decide the 

underlying constitutional question. The judgment of the

Court of Appeals is reversed, and the cases are remanded 

for further proceedings consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

SCALIA, J., concurring 

SUPREME COURT OF THE UNITED STATES 

Nos. 07–1428 and 08–328 

FRANK RICCI, ET AL., PETITIONERS 

07–1428 v. 

JOHN DESTEFANO ET AL. 

FRANK RICCI, ET AL., PETITIONERS 

08–328 v. 

JOHN DESTEFANO ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT 

[June 29, 2009] 

JUSTICE SCALIA, concurring. 

I join the Court’s opinion in full, but write separately to

observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront

the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act 

of 1964 consistent with the Constitution’s guarantee of 

equal protection? The question is not an easy one. See 

generally Primus, Equal Protection and Disparate Impact:

Round Three, 117 Harv. L. Rev. 493 (2003). 

The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based

actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—

it is clear that Title VII not only permits but affirmatively 

requires such actions when a disparate-impact violation 

would otherwise result. See ante, at 20–21. But if the 

Federal Government is prohibited from discriminating on

the basis of race, Bolling v. Sharpe, 347 U. S. 497, 500 

(1954), then surely it is also prohibited from enacting laws 
2 RICCI v. DESTEFANO 

SCALIA, J., concurring 

mandating that third parties—e.g., employers, whether

private, State, or municipal—discriminate on the basis of 

race. See Buchanan v. Warley, 245 U. S. 60, 78–82 (1917).

As the facts of these cases illustrate, Title VII’s disparateimpact provisions place a racial thumb on the scales, often

requiring employers to evaluate the racial outcomes of

their policies, and to make decisions based on (because of) 

those racial outcomes. That type of racial decisionmaking

is, as the Court explains, discriminatory. See ante, at 19; 

Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 

279 (1979).

To be sure, the disparate-impact laws do not mandate

imposition of quotas, but it is not clear why that should

provide a safe harbor. Would a private employer not be 

guilty of unlawful discrimination if he refrained from

establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? 

Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion

of such design would therefore seemingly violate equal 

protection principles. Nor would it matter that Title VII 

requires consideration of race on a wholesale, rather than

retail, level. “[T]he Government must treat citizens as 

individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 

U. S. 900, 911 (1995) (internal quotation marks omitted). 

And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995). 

It might be possible to defend the law by framing it as 

simply an evidentiary tool used to identify genuine, intentional discrimination—to “smoke out,” as it were, disparate treatment. See Primus, supra, at 498–499, 520–521. 

Disparate impact is sometimes (though not always, see 

Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 992 

(1988) (plurality opinion)) a signal of something illicit, so a 
Cite as: 557 U. S. ____ (2009) 3 

SCALIA, J., concurring 

regulator might allow statistical disparities to play some 

role in the evidentiary process. Cf. McDonnell Douglas 

Corp. v. Green, 411 U. S. 792, 802–803 (1973). But arguably the disparate-impact provisions sweep too broadly to 

be fairly characterized in such a fashion—since they fail to

provide an affirmative defense for good-faith (i.e., nonracially motivated) conduct, or perhaps even for good faith 

plus hiring standards that are entirely reasonable. See 

post, at 15–16, and n. 1 (GINSBURG, J., dissenting) (describing the demanding nature of the “business necessity” 

defense). This is a question that this Court will have to

consider in due course. It is one thing to free plaintiffs 

from proving an employer’s illicit intent, but quite another 

to preclude the employer from proving that its motives 

were pure and its actions reasonable.

The Court’s resolution of these cases makes it unnecessary to resolve these matters today. But the war between 

disparate impact and equal protection will be waged 

sooner or later, and it behooves us to begin thinking about

how—and on what terms—to make peace between them. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

ALITO, J., concurring 

SUPREME COURT OF THE UNITED STATES 

Nos. 07–1428 and 08–328 

FRANK RICCI, ET AL., PETITIONERS 

07–1428 v. 

JOHN DESTEFANO ET AL. 

FRANK RICCI, ET AL., PETITIONERS 

08–328 v. 

JOHN DESTEFANO ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT 

[June 29, 2009] 

JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE 

THOMAS join, concurring. 

I join the Court’s opinion in full. I write separately only

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 GINSBURG, J.), provides an 

incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the

evidence in the record is taken into account, it is clear 

that, even if the legal analysis in Parts 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

employment decision, such as the refusal to promote, was 

based on a legitimate reason, two questions—one objective

and one subjective—must be decided. The first, objective

question is whether the reason given by the employer is 
2 RICCI v. DESTEFANO 

ALITO, J., concurring 

one that is legitimate under Title VII. See St. Mary’s 

Honor Center v. Hicks, 509 U. S. 502, 506–507 (1993). If 

the reason provided by the employer is not legitimate on

its face, the employer is liable. Id., at 509. The second, 

subjective question concerns the employer’s intent. If an 

employer offers a facially legitimate reason for its decision 

but it turns out that this explanation was just a pretext 

for discrimination, the employer is again liable. See id., at 

510–512. 

The question on which the opinion of the Court and the 

dissenting opinion disagree concerns the objective component of the determination that must be made when an 

employer justifies an employment decision, like the one 

made in this litigation, on the ground that a contrary 

decision would have created a risk of disparate-impact

liability. The Court holds—and I entirely agree—that 

concern about disparate-impact liability is a legitimate

reason for a decision of the type involved here only if there

was a “substantial basis in evidence to find the tests inadequate.” Ante, at 26. The Court ably demonstrates that 

in this litigation no reasonable jury could find that the city 

of New Haven (City) possessed such evidence and therefore summary judgment for petitioners is required. Because the Court correctly holds that respondents cannot

satisfy this objective component, the Court has no need to 

discuss the question of the respondents’ actual intent. As 

the Court puts it, “[e]ven if respondents were motivated as

a subjective matter by a desire to avoid committing disparate-impact discrimination, 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 standard. According to the dissent, the 

objective component should be whether the evidence provided “good cause” for the decision, post, at 19, and the 
Cite as: 557 U. S. ____ (2009) 3 

ALITO, J., concurring 

dissent argues—incorrectly, in my view—that no reasonable juror could fail to find that such evidence was present

here. But even if the dissent were correct on this point, I 

assume that the dissent would not countenance summary 

judgment for respondents if respondents’ professed concern about disparate-impact litigation was simply a pretext. Therefore, the decision below, which sustained the 

entry of summary judgment for respondents, cannot be

affirmed unless no reasonable jury could find that the

City’s asserted reason for scrapping its test—concern

about disparate-impact liability—was a pretext and that

the City’s real reason was illegitimate, namely, the desire 

to placate a politically important racial constituency. 

II 

A 

As initially described by the dissent, see post, at 2–12, 

the process by which the City reached the decision not to

accept the test results was open, honest, serious, and 

deliberative. But even the District Court admitted that “a 

jury could rationally infer that city officials worked behind

the scenes to sabotage the promotional examinations 

because they knew that, were the exams certified, the

Mayor would incur the wrath of [Rev. Boise] Kimber and 

other influential leaders of New Haven’s African-American 

community.” 554 F. Supp. 2d 142, 162 (Conn. 2006), 

summarily aff’d, 530 F. 3d 87 (CA2 2008) (per curiam). 

This admission finds ample support in the record.

Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a 

self-professed “‘kingmaker.’” App. to Pet. for Cert. in No. 

07–1428, p. 906a; see also id., at 909a. On one occasion, 

“[i]n front of TV cameras, he threatened a race riot during

the murder trial of the black man arrested for killing 

white Yalie Christian Prince. He continues to call whites 

racist if they question his actions.” Id., at 931a. 
4 RICCI v. DESTEFANO 

ALITO, J., concurring 

Reverend Kimber’s personal ties with seven-term New 

Haven Mayor John DeStefano (Mayor) stretch back more 

than a decade. In 1996, for example, Mayor DeStefano

testified for Rev. Kimber as a character witness when Rev. 

Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses

from an elderly woman and then lying about the matter 

under oath. See id., at 126a, 907a. “Reverend Kimber has 

played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political

supporter and vote-getter.” Id., at 126a. According to the

Mayor’s former campaign manager (who is currently his 

executive assistant), Rev. Kimber is an invaluable political

asset because “[h]e’s very good at organizing people and 

putting together field operations, as a result of his ties to

labor, his prominence in the religious community and his 

long-standing commitment to roots.” Id., at 908a (internal

quotation marks and alteration omitted). 

In 2002, the Mayor picked Rev. Kimber to serve as the

Chairman of the New Haven Board of Fire Commissioners 

(BFC), “despite the fact that he had no experience in the 

profession, fire administration, [or] municipal management.” Id., at 127a; see also id., at 928a–929a. In that 

capacity, Rev. Kimber told firefighters that certain new 

recruits would not be hired because “‘they just have too 

many vowels in their name[s].’” Thanawala, New Haven 

Fire Panel Chairman Steps Down Over Racial Slur, Hartford Courant, June 13, 2002, p. B2. After protests about

this comment, Rev. Kimber stepped down as chairman of 

the BFC, ibid.; see also App. to Pet. for Cert. in No. 07–

1428, at 929a, but he remained on the BFC and retained 

“a direct line to the mayor,” id., at 816a. 

Almost immediately after the test results were revealed 

in “early January” 2004, Rev. Kimber called the City’s 

Chief Administrative Officer, Karen Dubois-Walton, who 

“acts ‘on behalf of the Mayor.’” Id., at 221a, 812a. Dubois-
Cite as: 557 U. S. ____ (2009) 5 

ALITO, J., concurring 

Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test 

results and “to have some influence” over the City’s response. Id., at 815a–816a. As discussed in further detail 

below, Rev. Kimber adamantly opposed certification 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 Burgett (the director of the

City’s Department of Human Resources) sent an e-mail to

Dubois-Walton to coordinate the City’s response to the test

results. Burgett wanted to clarify that the City’s executive 

officials would meet “sans 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 William Grant (who is 

white) and Assistant Fire Chief Ronald Dumas (who is

African-American). Both chiefs believed that the test 

results should be certified. Id., at 228a, 817a. Petitioners 

allege, and the record suggests, that the Mayor and his

staff colluded “sans the Chief[s]” because “the defendants

did not want Grant’s or Dumas’ views to be publicly

known; accordingly both men were prevented by the 

Mayor and his staff from making any statements regarding the matter.” Id., at 228a.1 

The next day, on January 13, 2004, Chad Legel, who 

had designed the tests, flew from Chicago to New Haven 

to meet with Dubois-Walton, Burgett, and Thomas Ude, 

the City’s corporate counsel. Id., at 179a. “Legel outlined

the merits of the examination and why city officials should

be confident in the validity of the results.” Ibid. But 

—————— 

1Although the dissent disputes it, see post, at 33–34, n. 17, the record 

certainly permits the inference that petitioners’ allegation is true. See 

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

Dubois-Walton). 
6 RICCI v. DESTEFANO 

ALITO, J., concurring 

according to Legel, Dubois-Walton was “argumentative”

and apparently had already made up her mind that the

tests were “‘discriminatory.’” Id., at 179a–180a. Again

according to Legel, “[a] theme” of the meeting was “the 

political and racial overtones of what was going on in the

City.” Id., at 181a. “Legel came away from the January 

13, 2004 meeting with the impression that defendants 

were already leaning toward discarding the examination 

results.” Id., at 180a. 

On January 22, 2004, the Civil Service Board (CSB or

Board) convened its first public meeting. Almost immediately, Rev. Kimber began to exert political pressure on the

CSB. He began a loud, minutes-long outburst that required the CSB Chairman to shout him down and hold 

him out of order three times. See id., at 187a, 467a–468a; 

see also App. in No. 06–4996–cv (CA2), pp. A703–A705.

Reverend Kimber protested the public meeting, arguing

that he and the other fire commissioners should first be 

allowed to meet with the CSB in private. App. to Pet. for 

Cert. in No. 07–1428, at 188a. 

Four days after the CSB’s first meeting, Mayor DeStefano’s executive aide sent an e-mail to Dubois-Walton, 

Burgett, and Ude. Id., at 190a. The message clearly

indicated that the Mayor had made up his mind to oppose 

certification of the test results (but nevertheless wanted to

conceal that fact from the public): 

“I wanted to make sure we are all on the same page

for this meeting tomorrow. . . . [L]et’s remember, that 

these folks are not against certification yet. So we 

can’t go in and tell them that is our position; we have 

to deliberate and arrive there as the fairest and most 

cogent outcome.” Ibid. 

On February 5, 2004, the CSB convened its second 

public meeting. Reverend Kimber again testified and

threatened the CSB with political recriminations if they 
Cite as: 557 U. S. ____ (2009) 7 

ALITO, J., concurring 

voted to certify the test results: 

“I look at this [Board] tonight. I look at three whites 

and one Hispanic and no blacks. . . . I would hope that 

you would not put yourself in this type of position, a 

political ramification that may come back upon you as 

you sit on this [Board] and decide the future of a

department and the future of those who are being

promoted. 

. . . . . 

“(APPLAUSE).” Id., at 492a (emphasis added). 

One of the CSB members “t[ook] great offense” because he 

believed that Rev. Kimber “consider[ed] [him] a bigot 

because [his] face is white.” Id., at 496a. The offended 

CSB member eventually voted not to certify the test results. Id., at 586a–587a. 

One of Rev. Kimber’s “friends and allies,” Lieutenant 

Gary Tinney, also exacerbated racial tensions before the 

CSB. Id., at 129a. After some firefighters applauded in

support of certifying the test results, “Lt. Tinney exclaimed, ‘Listen to the Klansmen behind us.’” Id., at 225a. 

Tinney also has strong ties to the Mayor’s office. See, 

e.g., id., at 129a–130a, 816a–817a. After learning that he 

had not scored well enough on the captain’s exam to earn 

a promotion, Tinney called Dubois-Walton and arranged a 

meeting in her office. Id., at 830a–831a, 836a. Tinney

alleged that the white firefighters had cheated on their

exams—an accusation that Dubois-Walton conveyed to the 

Board without first conducting an investigation into its

veracity. Id., at 837a–838a; see also App. 164 (statement 

of CSB Chairman, noting the allegations of cheating). The 

allegation turned out to be baseless. App. to Pet. for Cert. 

in No. 07–1428, at 836a. 

Dubois-Walton never retracted the cheating allegation,

but she and other executive officials testified several times 

before the CSB. In accordance with directions from the 
8 RICCI v. DESTEFANO 

ALITO, J., concurring 

Mayor’s office to make the CSB meetings appear deliberative, see id., at 190a, executive officials remained publicly

uncommitted about certification—while simultaneously

“work[ing] as a team” behind closed doors with the secretary of the CSB to devise a political 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 recommending against certifying the test results. See id., at 215a 

(“Attorney Ude took offense, stating, ‘Frankly, because I

would never make a recommendation—I would not have 

made a recommendation like that’”). But within days of 

making that public statement, Ude privately told other 

members of the Mayor’s team “the ONLY way we get to a

decision not to certify is” to focus on something other than

“a big discussion re: adverse impact” law. Id., at 458a– 

459a. 

As part of its effort to deflect attention from the specifics

of the test, the City relied heavily on the testimony of Dr.

Christopher Hornick, who is one of Chad Legel’s competitors in the test-development business. Hornick never 

“stud[ied] the test [that Legel developed] at length or in

detail,” id., at 549a; see also id., at 203a, 553a, but Hornick did review and rely upon literature sent to him by

Burgett to criticize Legel’s test. For example, Hornick

“noted in the literature that [Burgett] sent that the test 

was not customized to the New Haven Fire Department.” 

Id., at 551a. The Chairman of the CSB immediately corrected Hornick. Id., at 552a (“Actually, it was, Dr. Hornick”). Hornick also relied on newspaper accounts—again, 

sent to him by Burgett—pertaining to the controversy

surrounding the certification decision. See id., at 204a, 

557a. Although Hornick again admitted that he had no 

knowledge about the actual test that Legel had developed

and that the City had administered, see id., at 560a–561a, 
Cite as: 557 U. S. ____ (2009) 9 

ALITO, J., concurring 

the City repeatedly relied upon Hornick as a testing

“guru” and, in the CSB Chairman’s words, “the City ke[pt]

quoting him as a person that we should rely upon more

than anybody else [to conclude that there] is a better 

way—a better mousetrap.”2 App. in No. 06–4996–cv 

(CA2), at A1128. Dubois-Walton later admitted that the 

City rewarded Hornick for his testimony by hiring him to 

develop and administer an alternative test. App. to Pet. 

for Cert. in No. 07–1428, at 854a; see also id., at 562a– 

563a (Hornick’s plea for future business from the 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 decided to use his executive

authority to disregard the test results—even if the CSB 

ultimately voted to certify them. Id., at 819a–820a. Accordingly, on the evening of March 17th, Dubois-Walton

sent an e-mail to the Mayor, the Mayor’s executive assistant, Burgett, and attorney Ude, attaching two alternative 

press releases. Id., at 457a. The first would be issued if 

the CSB voted not to certify the test results; the second

would be issued (and would explain the Mayor’s invocation

of his executive authority) if the CSB voted to certify the 

test results. Id., at 217a–218a, 590a–591a, 819a–820a. 

Half an hour after Dubois-Walton circulated the alternative drafts, Burgett replied: “[W]ell, that seems to say it 

all. Let’s hope draft #2 hits the shredder tomorrow nite.” 

Id., at 457a. 

—————— 

2The City’s heavy reliance on Hornick’s testimony makes the two 

chiefs’ silence all the more striking. See supra, at 5. While Hornick 

knew little or nothing about the tests he criticized, the two chiefs were 

involved “during the lengthy process that led to the devising of the 

administration of these exams,” App. to Pet. for Cert. in No. 07–1428,

at 847a, including “collaborating with City officials on the extensive job

analyses that were done,” “selection of the oral panelists,” and selection

of “the proper content and subject matter of the exams,” id., at 847a– 

848a. 
10 RICCI v. DESTEFANO 

ALITO, J., concurring 

Soon after the CSB voted against certification, Mayor

DeStefano appeared at a dinner event and “took credit for 

the scu[tt]ling of the examination results.” Id., at 230a. 

C 

Taking into account all the evidence in the summary

judgment record, a reasonable jury could find the following. Almost as soon as the City disclosed the racial

makeup of the list of firefighters who scored the highest on 

the exam, the City administration was lobbied by an

influential community leader to scrap the test results, and

the City administration decided on that course of action 

before making any real assessment of the possibility of a 

disparate-impact violation. To achieve that end, the City 

administration concealed its internal decision but 

worked—as things turned out, successfully—to persuade

the CSB that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the 

Mayor, wielding ultimate decisionmaking authority, was 

prepared to overrule the CSB immediately. Taking this 

view of the evidence, a reasonable jury could easily find 

that the City’s real reason for scrapping the test results

was not a concern about violating the disparate-impact 

provision of Title VII but a simple desire to please a politically important racial constituency. It is noteworthy that

the Solicitor General—whose position on the principal 

legal issue in this case is largely aligned with the dissent—concludes that “[n]either the district court nor the

court of appeals . . . adequately considered whether, viewing the evidence in the light most favorable to petitioners, 

a genuine issue of material fact remained whether respondents’ claimed purpose to comply with Title VII was a 

pretext for intentional racial discrimination . . . .” Brief 

for United States as Amicus Curiae 6; see also id., at 32– 

33. 
Cite as: 557 U. S. ____ (2009) 11 

ALITO, J., concurring 

III 

I will not comment at length on the dissent’s criticism of 

my analysis, but two points require a response.

The first concerns the dissent’s statement that I 

“equat[e] political considerations with unlawful discrimination.” Post, at 36. The dissent misrepresents my position: I draw no such equation. Of course “there are many

ways in which a politician can attempt to win over a constituency—including a racial constituency—without engaging in unlawful discrimination.” Post, at 36–37. But— 

as I assume the dissent would agree—there are some

things that a public official cannot do, and one of those is

engaging in intentional racial discrimination when making employment decisions.

The second point concerns the dissent’s main argument—that efforts by the Mayor and his staff to scuttle 

the test results are irrelevant because the ultimate decision was made by the CSB. According to the dissent,

“[t]he relevant decision was made by the CSB,” post, at 34, 

and there is “scant cause to suspect” that anything done 

by the opponents of certification, including the Mayor and 

his staff, “prevented the CSB from evenhandedly assessing the reliability of the exams and rendering an independent, good-faith decision on certification,” post, at 36. 

Adoption of the dissent’s argument would implicitly

decide an important question of Title VII law that this 

Court has never resolved—the circumstances in which an 

employer may be held liable based on the discriminatory 

intent of subordinate employees who influence but do not 

make the ultimate employment decision. There is a large

body of court of appeals case law on this issue, and these 

cases disagree about the proper standard. See EEOC v. 

BCI Coca-Cola Bottling Co. of Los Angeles, 450 F. 3d 476, 

484–488 (CA10 2006) (citing cases and describing the 

approaches taken in different Circuits). One standard is 

whether the subordinate “exerted influenc[e] over the 
12 RICCI v. DESTEFANO 

ALITO, J., concurring 

titular decisionmaker.” Russell v. McKinney Hosp. Venture, 235 F. 3d 219, 227 (CA5 2000); see also Poland v. 

Chertoff, 494 F. 3d 1174, 1182 (CA9 2007) (A subordinate’s

bias is imputed to the employer where the subordinate 

“influenced or was involved in the decision or decisionmaking process”). Another is whether the discriminatory

input “caused the adverse employment action.” See BCI 

Coca-Cola Bottling Co. of Los Angeles, supra, at 487. 

In the present cases, a reasonable jury could certainly

find that these standards were met. The dissent makes 

much of the fact that members of the CSB swore under 

oath that their votes were based on the good-faith belief 

that certification of the results would have violated federal 

law. See post, at 34. But the good faith of the CSB members would not preclude a finding that the presentations 

engineered by the Mayor and his staff influenced or 

caused the CSB decision. 

The least employee-friendly standard asks only whether 

“the actual decisionmaker” acted with discriminatory 

intent, see Hill v. Lockheed Martin Logistics Management, 

Inc., 354 F. 3d 277, 291 (CA4 2004) (en banc), and it is

telling that, even under this standard, summary judgment 

for respondents would not be proper. This is so because a 

reasonable jury could certainly find that in New Haven, 

the Mayor—not the CSB—wielded the final decisionmaking power. After all, the Mayor claimed that authority

and was poised to use it in the event that the CSB decided

to accept the test results. See supra, at 9. If the Mayor

had the authority to overrule a CSB decision accepting the 

test results, the Mayor also presumably had the authority 

to overrule the CSB’s decision rejecting the test results. In 

light of the Mayor’s conduct, it would be quite wrong to

throw out petitioners’ case on the ground that the CSB

was the ultimate decisionmaker. 
Cite as: 557 U. S. ____ (2009) 13 

ALITO, J., concurring 

* * * 

Petitioners are firefighters who seek only a fair chance

to move up the ranks in their chosen profession. In order 

to qualify for promotion, they made personal sacrifices.

Petitioner Frank Ricci, who is dyslexic, found it necessary 

to “hir[e] someone, at considerable expense, to read onto

audiotape the content of the books and study materials.”

App. to Pet. for Cert. in No. 07–1428, at 169a. He “studied 

an average of eight to thirteen hours a day . . . , even

listening to audio tapes while driving his car.” Ibid. 

Petitioner Benjamin Vargas, who is Hispanic, had to “give

up a part-time job,” and his wife had to “take leave from 

her own job in order to take care of their three young

children while Vargas studied.” Id., at 176a. “Vargas

devoted countless hours to study . . . , missed two of his

children’s birthdays and over two weeks of vacation time,”

and “incurred significant financial expense” during the 

three-month study period. Id., at 176a–177a. 

Petitioners were denied promotions for which they

qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. 

The District Court threw out their case on summary

judgment, even though that court all but conceded that a

jury could find that the City’s asserted justification was 

pretextual. The Court of Appeals then summarily affirmed that decision. 

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably 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 demand is evenhanded enforcement of the law—of 

Title VII’s prohibition against discrimination based on 

race. And that is what, until today’s decision, has been 

denied them. 
_________________ 

_________________ 

Cite as: 557 U. S. ____ (2009) 1 

GINSBURG, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 07–1428 and 08–328 

FRANK RICCI, ET AL., PETITIONERS 

07–1428 v. 

JOHN DESTEFANO ET AL. 

FRANK RICCI, ET AL., PETITIONERS 

08–328 v. 

JOHN DESTEFANO ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SECOND CIRCUIT 

[June 29, 2009] 

JUSTICE GINSBURG, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE BREYER join, dissenting. 

In assessing claims of race discrimination, “[c]ontext

matters.” Grutter v. Bollinger, 539 U. S. 306, 327 (2003).

In 1972, Congress extended Title VII of the Civil Rights 

Act of 1964 to cover public employment. At that time, 

municipal fire departments across the country, including

New Haven’s, pervasively discriminated against minorities. The extension of Title VII to cover jobs in firefighting 

effected no overnight change. It took decades of persistent 

effort, advanced by Title VII litigation, to open firefighting 

posts to members of racial minorities.

The white firefighters who scored high on New Haven’s 

promotional exams understandably attract this Court’s 

sympathy. But they had no vested right to promotion. 

Nor have other persons received promotions in preference

to them. New Haven maintains that it refused to certify

the test results because it believed, for good cause, that it 

would be vulnerable to a Title VII disparate-impact suit if 

it relied on those results. The Court today holds that New 
2 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

Haven has not demonstrated “a strong basis in evidence” 

for its plea. Ante, at 2. In so holding, the Court pretends 

that “[t]he City rejected the test results solely because the 

higher scoring candidates were white.” Ante, at 20. That 

pretension, essential to the Court’s disposition, ignores 

substantial evidence of multiple flaws in the tests New 

Haven used. The Court similarly fails to acknowledge the

better tests used in other cities, which have yielded less

racially skewed outcomes.1 

By order of this Court, New Haven, a city in which

African-Americans 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 department in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at 

its order, the Court barely acknowledges the pathmarking

decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971), 

which explained the centrality of the disparate-impact 

concept to effective enforcement of Title VII. The Court’s 

order and opinion, I anticipate, will not have staying 

power. 

I 

A 

The Court’s recitation of the facts leaves out important

parts of the story. Firefighting is a profession in which the

legacy of racial discrimination casts an especially long

shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. 

—————— 

1Never mind the flawed tests New Haven used and the better selection methods used elsewhere, JUSTICE ALITO’s concurring opinion urges. 

Overriding all else, racial politics, fired up by a strident AfricanAmerican pastor, were at work in New Haven. See ante, at 4–9. Even 

a detached and disinterested observer, however, would have every

reason to ask: Why did such racially skewed results occur in New 

Haven, when better tests likely would have produced less disproportionate results? 
Cite as: 557 U. S. ____ (2009) 3 

GINSBURG, J., dissenting 

Commission on Civil Rights (USCCR) report finding racial

discrimination in municipal 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 employment 

principles. In making hiring and promotion decisions, 

public employers often “rel[ied] on criteria unrelated to job 

performance,” including nepotism or political patronage. 

118 Cong. Rec. 1817 (1972). Such flawed selection methods served to entrench preexisting racial hierarchies. The 

USCCR report singled out police and fire departments for 

having “[b]arriers to equal employment . . . greater . . . 

than in any other area of State or local government,” with

African-Americans “hold[ing] almost no positions in the 

officer ranks.” Ibid. See also National Commission on 

Fire Prevention and Control, America Burning 5 (1973) 

(“Racial minorities are under-represented in the fire departments in nearly every community in which they

live.”).

The city of New Haven (City) was no exception. In the 

early 1970’s, African-Americans and Hispanics composed 

30 percent of New Haven’s population, but only 3.6 percent of the City’s 502 firefighters. The racial disparity in

the officer ranks was even more pronounced: “[O]f the 107

officers in the Department only one was black, and he held

the lowest rank above private.” Firebird Soc. of New 

Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 

457, 460 (Conn. 1975).

Following a lawsuit and settlement agreement, see ibid., 

the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). 

Those litigation-induced efforts produced some positive

change. New Haven’s population includes a greater proportion of minorities today than it did in the 1970’s: 

Nearly 40 percent of the City’s residents are African-
4 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

American and more than 20 percent are Hispanic. Among 

entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans 

and Hispanics constituted 30 percent and 16 percent of the 

City’s firefighters, respectively. In supervisory positions,

however, significant disparities remain. Overall, the 

senior officer ranks (captain and higher) are nine percent 

African-American and nine percent Hispanic. Only one of

the Department’s 21 fire captains is African-American.

See App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter 

CA2 App.). It is against this backdrop of entrenched 

inequality that the promotion process at issue in this

litigation should be assessed. 

B 

By order of its charter, New Haven must use competitive examinations to fill vacancies in fire officer and other 

civil-service positions. Such examinations, the City’s civil

service rules specify, “shall be practical in nature, shall

relate to matters which fairly measure the relative fitness 

and capacity of the applicants to discharge the duties of

the position which they seek, and shall take into account

character, training, experience, physical and mental fitness.” Id., at A331. The City may choose among a variety 

of testing methods, including written and oral exams and 

“[p]erformance tests to demonstrate skill and ability in

performing actual work.” Id., at A332. 

New Haven, the record indicates, did not closely consider what sort of “practical” examination would “fairly

measure the relative fitness and capacity of the applicants

to discharge the duties” of a fire officer. Instead, the City

simply adhered to the testing regime outlined in its twodecades-old contract with the local firefighters’ union: a

written exam, which would account for 60 percent of an 

applicant’s total score, and an oral exam, which would

account for the remaining 40 percent. Id., at A1045. In 
Cite as: 557 U. S. ____ (2009) 5 

GINSBURG, J., dissenting 

soliciting bids from exam development companies, New 

Haven made clear that it would entertain only “proposals

that include a written component that will be weighted at 

60%, and an oral component that will be weighted at 

40%.” Id., at A342. Chad Legel, a representative of the

winning bidder, Industrial/Organizational Solutions, Inc. 

(IOS), testified during his deposition that the City never

asked whether alternative methods might better measure 

the qualities of a successful fire officer, including leadership skills and command presence. See id., at A522 (“I

was under contract and had responsibility only to create 

the oral interview and the written exam.”). 

Pursuant to New Haven’s specifications, IOS developed 

and administered the oral and written exams. The results 

showed significant racial disparities. On the lieutenant 

exam, the pass rate for African-American candidates was 

about one-half the rate for Caucasian candidates; the pass 

rate for Hispanic candidates was even lower. On the 

captain exam, both African-American and Hispanic candidates passed at about half the rate of their Caucasian 

counterparts. See App. 225–226. More striking still, 

although nearly half of the 77 lieutenant candidates were

African-American or Hispanic, none would have been

eligible for promotion to the eight positions then vacant. 

The highest scoring African-American candidate ranked

13th; the top Hispanic candidate was 26th. As for the 

seven then-vacant captain positions, two Hispanic candidates would have been eligible, but no African-Americans.

The highest scoring African-American candidate ranked

15th. See id., at 218–219. 

These stark disparities, the Court acknowledges, sufficed to state a prima facie case under Title VII’s disparate-impact provision. See ante, at 27 (“The pass rates of 

minorities . . . f[e]ll well below the 80-percent standard set 

by the [Equal Employment Opportunity Commission

(EEOC)] to implement the disparate-impact provision of 
6 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

Title VII.”). New Haven thus had cause for concern about 

the prospect of Title VII litigation and liability. City

officials referred the matter to the New Haven Civil Service Board (CSB), the entity responsible for certifying the 

results of employment exams. 

Between January and March 2004, the CSB held five

public meetings to consider the proper course. At the first 

meeting, New Haven’s Corporation Counsel, Thomas Ude,

described the legal standard governing Title VII disparateimpact claims. Statistical imbalances alone, Ude correctly

recognized, do not give rise to liability. Instead, presented 

with a disparity, an employer “has the opportunity and the

burden of proving that the test is job-related and consistent with business necessity.” CA2 App. A724. A Title VII 

plaintiff may attempt to rebut an employer’s showing of 

job-relatedness and necessity by identifying alternative

selection methods that would have been at least as valid 

but with “less of an adverse or disparate or discriminatory 

effect.” Ibid. See also id., at A738. Accordingly, the CSB 

Commissioners understood, their principal task was to 

decide whether they were confident about the reliability of 

the exams: Had the exams fairly measured the qualities of 

a successful fire officer despite their disparate results?

Might an alternative examination process have identified

the most qualified candidates without creating such significant racial imbalances? 

Seeking a range of input on these questions, the CSB 

heard from test takers, the test designer, subject-matter

experts, City officials, union leaders, and community 

members. Several candidates for promotion, who did not 

yet know their exam results, spoke at the CSB’s first two

meetings. Some candidates favored certification. The 

exams, they emphasized, had closely tracked the assigned

study materials. Having invested substantial time and 

money to prepare themselves for the test, they felt it

would be unfair to scrap the results. See, e.g., id., at 
Cite as: 557 U. S. ____ (2009) 7 

GINSBURG, J., dissenting 

A772–A773, A785–A789. 

Other firefighters had a different view. A number of the 

exam questions, they pointed out, were not germane to 

New Haven’s practices and procedures. See, e.g., id., at 

A774–A784. At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even

before the syllabus was issued. Others had to invest 

substantial sums to purchase the materials and “wait a 

month and a half for some of the books because they were 

on back-order.” Id., at A858. These disparities, it was

suggested, fell at least in part along racial lines. While 

many Caucasian applicants could obtain materials and 

assistance from relatives in the fire service, the overwhelming majority of minority applicants were “firstgeneration firefighters” without such support networks.

See id., at A857–A861, A886–A887. 

A representative of the Northeast Region of the International Association of Black Professional Firefighters, 

Donald Day, also spoke at the second meeting. Statistical 

disparities, he told the CSB, had been present in the 

Department’s previous promotional exams. On earlier 

tests, however, a few minority candidates had fared well 

enough to earn promotions. Id., at A828. See also App.

218–219. Day contrasted New Haven’s experience with

that of nearby Bridgeport, where minority firefighters held

one-third of lieutenant and captain positions. Bridgeport,

Day observed, had once used a testing process similar to

New Haven’s, with a written exam accounting for 70 

percent of an applicant’s score, an oral exam for 25 percent, and seniority for the remaining five percent. CA2 

App. A830. Bridgeport recognized, however, that the oral 

component, more so than the written component, addressed the sort of “real-life scenarios” fire officers encounter on the job. Id., at A832. Accordingly, that city 

“changed the relative weights” to give primacy to the oral 
8 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

exam. Ibid. Since that time, Day reported, Bridgeport

had seen minorities “fairly represented” in its exam results. Ibid. 

The CSB’s third meeting featured IOS representative 

Legel, the leader of the team that had designed and administered the exams for New Haven. Several City officials also participated in the discussion. Legel described

the exam development process in detail. The City, he

recounted, had set the “parameters” for the exams, specifically, the requirement of written and oral components

with a 60/40 weighting. Id., at A923, A974. For security

reasons, Department officials had not been permitted to

check the content of the questions prior to their administration. Instead, IOS retained a senior fire officer from 

Georgia to review the exams “for content and fidelity to

the source material.” Id., at A936. Legel defended the

exams as “facially neutral,” and stated that he “would 

stand by the[ir] validity.” Id., at A962. City officials did

not dispute the neutrality of IOS’s work. But, they cautioned, even if individual exam questions had no intrinsic 

bias, the selection process as a whole may nevertheless 

have been deficient. The officials urged the CSB to consult 

with experts about the “larger picture.” Id., at A1012. 

At its fourth meeting, CSB solicited the views of three

individuals with testing-related expertise. Dr. Christopher Hornick, an industrial/organizational psychology 

consultant with 25 years’ experience with police and firefighter testing, described the exam results as having

“relatively high adverse impact.” Id., at A1028. Most of 

the tests he had developed, Hornick stated, exhibited 

“significantly and dramatically less adverse impact.” Id., 

at A1029. Hornick downplayed the notion of “facial neutrality.” It was more important, he advised the CSB, to

consider “the broader issue of how your procedures and 

your rules and the types of tests that you are using are

contributing to the adverse impact.” Id., at A1038. 
Cite as: 557 U. S. ____ (2009) 9 

GINSBURG, J., dissenting 

Specifically, Hornick questioned New Haven’s unionprompted 60/40 written/oral examination structure, noting 

the availability of “different types of testing procedures

that are much more valid in terms of identifying the best 

potential supervisors in [the] fire department.” Id., at 

A1032. He suggested, for example, “an assessment center 

process, which is essentially an opportunity for candidates

. . . to demonstrate how they would address a particular 

problem as opposed to just verbally saying it or identifying 

the correct option on a written test.” Id., at A1039–A1040. 

Such selection processes, Hornick said, better “identif[y]

the best possible people” and “demonstrate dramatically

less adverse impacts.” Ibid. Hornick added: 

“I’ve spoken to at least 10,000, maybe 15,000 firefighters in group settings in my consulting practice

and I have never one time ever had anyone in the fire 

service say to me, ‘Well, the person who answers—

gets the highest score on a written job knowledge, 

multiple-guess test makes the best company 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 person’s leadership skills, their command presence, their interpersonal 

skills, their management skills, their tactical skills could 

have been identified and evaluated in a much more appropriate way.”). 

Hornick described the written test itself as “reasonably 

good,” id., at A1041, but he criticized the decision not to 

allow Department officials to check the content. According 

to Hornick, this “inevitably” led to “test[ing] for processes

and procedures that don’t necessarily match up into the 

department.” Id., at A1034–A1035. He preferred “experts

from within the department who have signed confidentiality agreements . . . to make sure that the terminology and 

equipment that’s being identified from standardized read-
10 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

ing sources apply to the department.” Id., at A1035. 

Asked whether he thought the City should certify the

results, Hornick hedged: “There is adverse impact in the 

test. That will be identified in any proceeding that you 

have. You will have industrial psychology experts, if it 

goes to court, on both sides. And it will not be a pretty or

comfortable position for anyone to be in.” Id., at A1040– 

A1041. Perhaps, he suggested, New Haven might certify 

the results but immediately begin exploring “alternative

ways to deal with these issues” in the future. Id., at 

A1041. 

The two other witnesses made relatively brief appearances. Vincent Lewis, a specialist with the Department of

Homeland Security and former fire officer in Michigan, 

believed the exams had generally tested relevant material,

although he noted a relatively heavy emphasis on questions pertaining to being an “apparatus driver.” He suggested that this may have disadvantaged test takers “who

had not had the training or had not had an opportunity to

drive the apparatus.” Id., at A1051. He also urged the 

CSB to consider whether candidates had, in fact, enjoyed 

equal access 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 job analyses to IOS during the 

exam design phase were Caucasian. Members of different 

racial groups, Helms told the CSB, sometimes do their jobs 

in different ways, “often because the experiences that are 

open to white male firefighters are not open to members of 

these other under-represented groups.” CA2 App. A1063–

A1064. The heavy reliance on job analyses from white

firefighters, she suggested, may thus have introduced an 

element of bias. Id., at A1063. 

The CSB’s fifth and final meeting began with statements from City officials recommending against certification. Ude, New Haven’s counsel, repeated the applicable 
Cite as: 557 U. S. ____ (2009) 11 

GINSBURG, J., dissenting 

disparate-impact standard: 

“[A] finding of adverse impact is the beginning, not 

the end, of a review of testing procedures. Where a 

procedure demonstrates adverse impact, you look 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 positions that are equally valid with less adverse impact.” Id., at A1100–A1101. 

New Haven, Ude and other officials asserted, would be 

vulnerable to Title VII liability under this standard. Even 

if the exams were “facially neutral,” significant doubts had 

been raised about whether they properly assessed the key 

attributes of a successful fire officer. Id., at A1103. See 

also id., at A1125 (“Upon close reading of the exams, the

questions themselves would appear to test a candidate’s 

ability to memorize textbooks but not necessarily to identify solutions to real problems on the fire ground.”). Moreover, City officials reminded the CSB, Hornick and others 

had identified better, less discriminatory selection methods–such as assessment centers or exams with a more 

heavily weighted oral component. Id., at A1108–A1109, 

A1129–A1130. 

After giving members of the public a final chance to

weigh in, the CSB voted on certification, dividing 2 to 2.

By rule, the result was noncertification. Voting no, Commissioner Webber stated, “I originally was going to vote to 

certify. . . . But I’ve heard enough testimony here to give

me great doubts about the test itself and . . . some of the 

procedures. And I believe we can do better.” Id., at 

A1157. Commissioner Tirado likewise concluded that the 

“flawed” testing process counseled against certification. 

Id., at A1158. Chairman Segaloff and Commissioner 

Caplan voted to certify. According to Segaloff, the testimony had not “compelled [him] to say this exam was not 
12 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

job-related,” and he was unconvinced that alternative 

selection processes would be “less discriminatory.” Id., at 

A1159–A1160. Both Segalhoff and Caplan, however,

urged the City to undertake civil service reform. Id., at 

A1150–A1154. 

C 

Following the CSB’s vote, petitioners—17 white firefighters and one Hispanic firefighter, all of whom had high

marks on the exams—filed suit in the United States District Court for the District of Connecticut. They named as 

defendants—respondents here—the City, several City

officials, a local political activist, and the two CSB members who voted against certifying the results. By opposing

certification, petitioners alleged, respondents had discriminated against them in violation of Title VII’s disparate-treatment provision and the Fourteenth Amendment’s Equal Protection Clause. The decision not to 

certify, respondents answered, was a lawful effort to comply with Title VII’s disparate-impact provision and thus 

could not have run afoul of Title VII’s prohibition of disparate treatment. Characterizing respondents’ stated rationale as a mere pretext, petitioners insisted that New 

Haven would have had a solid defense to any disparateimpact suit.

In a decision summarily affirmed by the Court of Appeals, the District Court granted summary judgment for 

respondents. 554 F. Supp. 2d 142 (Conn. 2006), aff’d, 530

F. 3d 87 (CA2 2008) (per curiam). Under Second Circuit 

precedent, the District Court explained, “the intent to

remedy the disparate impact” of a promotional exam “is 

not equivalent to an intent to discriminate against nonminority applicants.” 554 F. Supp. 2d, at 157 (quoting 

Hayden v. County of Nassau, 180 F. 3d 42, 51 (CA2 1999)).

Rejecting petitioners’ pretext argument, the court observed that the exam results were sufficiently skewed “to 
Cite as: 557 U. S. ____ (2009) 13 

GINSBURG, J., dissenting 

make out a prima facie case of discrimination” under Title

VII’s disparate-impact provision. 554 F. Supp. 2d, at 158. 

Had New Haven gone forward with certification and been

sued by aggrieved minority test takers, the City would

have been forced to defend tests that were presumptively 

invalid. And, as the CSB testimony of Hornick and others 

indicated, overcoming that presumption would have been

no easy task. Id., at 153–156. Given Title VII’s preference

for voluntary compliance, the court held, New Haven could

lawfully discard the disputed 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 during

their decisionmaking process, the court acknowledged, but

this did not mean they had engaged in racially disparate 

treatment. The conclusion they had reached and the 

action thereupon taken were race-neutral in this sense: 

“[A]ll the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for 

promotion.” Id., at 158. New Haven’s action, which gave

no individual a preference, “was ‘simply not analogous 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 Hayden, 180 F. 3d, at 50). For these and 

other reasons, the court also rejected petitioners’ equal 

protection claim. 

II 

A 

Title VII became effective in July 1965. Employers

responded to the law by eliminating rules and practices 

that explicitly barred racial minorities from “white” jobs.

But removing overtly race-based job classifications did not

usher in genuinely equal opportunity. More subtle—and 
14 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

sometimes unconscious—forms of discrimination replaced 

once undisguised restrictions.

In Griggs v. Duke Power Co., 401 U. S. 424 (1971), this

Court responded to that reality and supplied important 

guidance on Title VII’s mission and scope. Congress, the

landmark decision recognized, aimed beyond “disparate 

treatment”; it targeted “disparate impact” as well. Title 

VII’s original text, it was plain to the Court, “proscribe[d]

not only overt discrimination but also practices that are 

fair in form, but discriminatory in operation.” Id., at 431.2 

Only by ignoring Griggs could one maintain that intentionally disparate treatment alone was Title VII’s “original, foundational prohibition,” and disparate impact a 

mere afterthought. Cf. ante, at 21. 

Griggs addressed Duke Power Company’s policy that

applicants for positions, save in the company’s labor department, be high school graduates and score satisfactorily on two professionally prepared aptitude tests. 

“[T]here was no showing of a discriminatory purpose in

the adoption of the diploma and test requirements.” 401 

U. S., at 428. The policy, however, “operated to render 

ineligible a markedly disproportionate number of [AfricanAmericans].” Id., at 429. At the time of the litigation, in 

—————— 

2The Court’s disparate-impact analysis rested on two provisions of 

Title VII: §703(a)(2), which made it unlawful for an employer “to limit,

segregate, or classify his employees in any way which would deprive or

tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin”; and §703(h), which

permitted employers “to act upon the results of any professionally

developed ability test provided that such test, its administration or

action upon the results is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.” Griggs v. 

Duke Power Co., 401 U. S. 424, 426, n. 1 (1971) (quoting 78 Stat. 255, 

42 U. S. C. §2000e–2(a)(2), (h) (1964 ed.)). See also 401 U. S., at 433– 

436 (explaining that §703(h) authorizes only tests that are “demonstrably a reasonable measure of job performance”). 
Cite as: 557 U. S. ____ (2009) 15 

GINSBURG, J., dissenting 

North Carolina, where the Duke Power plant was located,

34 percent of white males, but only 12 percent of AfricanAmerican males, had high school diplomas. Id., at 430, 

n. 6. African-Americans also failed the aptitude tests at a 

significantly higher rate than whites. Ibid. Neither requirement had been “shown to bear a demonstrable relationship to successful performance of the jobs for which it

was used.” Id., at 431. 

The Court unanimously held that the company’s diploma and test requirements violated Title VII. “[T]o

achieve equality of employment opportunities,” the Court

comprehended, Congress “directed the thrust of the Act to

the consequences of employment practices, not simply the

motivation.” Id., at 429, 432. That meant “unnecessary 

barriers to employment” must fall, even if “neutral on 

their face” and “neutral in terms of intent.” Id., at 430, 

431. “The touchstone” for determining whether a test or 

qualification meets Title VII’s measure, the Court said, is

not “good intent or the absence of discriminatory intent”; it 

is “business necessity.” Id., at 431, 432. Matching procedure to substance, the Griggs Court observed, Congress

“placed on the employer the burden of showing that any 

given requirement . . . ha[s] a manifest relationship to the 

employment in question.” Id., at 432. 

In Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975),

the Court, again without dissent, elaborated on Griggs. 

When an employment test “select[s] applicants for hire or 

promotion in a racial pattern significantly different from 

the pool of applicants,” the Court reiterated, the employer 

must demonstrate a “manifest relationship” between test

and job. 422 U. S., at 425. Such a showing, the Court

cautioned, does not necessarily mean the employer prevails: “[I]t remains open to the complaining party to show 

that other tests or selection devices, without a similarly

undesirable racial effect, would also serve the employer’s 

legitimate interest in ‘efficient and trustworthy workman-
16 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

ship.’” Ibid. 

Federal trial and appellate courts applied Griggs and 

Albemarle to disallow a host of hiring and promotion

practices that “operate[d] as ‘built in headwinds’ for minority groups.” Griggs, 401 U. S., at 432. Practices discriminatory in effect, courts repeatedly emphasized, could

be maintained only upon an employer’s showing of “an

overriding and compelling business purpose.” Chrisner v. 

Complete Auto Transit, Inc., 645 F. 2d 1251, 1261, n. 9 

(CA6 1981).3 That a practice served “legitimate management functions” did not, it was generally understood,

suffice to establish business necessity. Williams v. Colorado Springs, Colo., School Dist., 641 F. 2d 835, 840–841 

(CA10 1981) (internal quotation marks omitted). Among 

selection methods cast aside for lack of a “manifest relationship” to job performance were a number of written 

—————— 

3See also Dothard v. Rawlinson, 433 U. S. 321, 332, n. 14 (1977) (“a

discriminatory employment practice must be shown to be necessary to

safe and efficient job performance to survive a Title VII challenge”); 

Williams v. Colorado Springs, Colo., School Dist., 641 F. 2d 835, 840– 

841 (CA10 1981) (“The term ‘necessity’ connotes that the exclusionary

practice must be shown to be of great importance to job performance.”); 

Kirby v. Colony Furniture Co., 613 F. 2d 696, 705, n. 6 (CA8 1980) (“the 

proper standard for determining whether ‘business necessity’ justifies a

practice which has a racially discriminatory result is not whether it is 

justified by routine business considerations but whether there is a 

compelling need for the employer to maintain that practice and 

whether the employer can prove there is no alternative to the challenged practice”); Pettway v. American Cast Iron Pipe Co., 494 F. 2d 

211, 244, n. 87 (CA5 1974) (“this doctrine of business necessity . . . 

connotes an irresistible demand” (internal quotation marks omitted)); 

United States v. Bethlehem Steel Corp., 446 F. 2d 652, 662 (CA2 1971)

(an exclusionary practice “must not only directly foster safety and 

efficiency of a plant, but also be essential to those goals”); Robinson v. 

Lorillard Corp., 444 F. 2d 791, 798 (CA4 1971) (“The test is whether

there exists an overriding legitimate business purpose such that

the practice is necessary to the safe and efficient operation of the

business.”). 
Cite as: 557 U. S. ____ (2009) 17 

GINSBURG, J., dissenting 

hiring and promotional examinations for firefighters.4 

Moving in a different direction, in Wards Cove Packing 

Co. v. Atonio, 490 U. S. 642 (1989), a bare majority of this 

Court significantly modified the Griggs-Albemarle delineation of Title VII’s disparate-impact proscription. As to 

business necessity for a practice that disproportionately

excludes members of minority groups, Wards Cove held, 

the employer bears only the burden of production, not the 

burden of persuasion. 490 U. S., at 659–660. And in place

of the instruction that the challenged practice “must have 

a manifest relationship to the employment in question,” 

Griggs, 401 U. S., at 432, Wards Cove said that the practice would be permissible as long as it “serve[d], in a significant way, the legitimate employment goals of the

employer.” 490 U. S., at 659. 

In response to Wards Cove 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,” Congress enacted the Civil Rights Act of

1991. H. R. Rep. No. 102–40, pt. 2, p. 2 (1991). Among the 

1991 alterations, Congress formally codified the disparateimpact component of Title VII. In so amending the statute, Congress made plain its intention to restore “the

concepts of ‘business necessity’ and ‘job related’ enunciated 

by the Supreme Court in Griggs v. Duke Power Co. . . .

and in other Supreme Court decisions prior to Wards Cove

Packing Co. v. Atonio.” §3(2), 105 Stat. 1071. Once a 

complaining party demonstrates that an employment 

—————— 

4See, e.g., Nash v. Jacksonville, 837 F. 2d 1534 (CA11 1988), vacated,

490 U. S. 1103 (1989), opinion reinstated, 905 F. 2d 355 (CA11 1990); 

Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv., 832 F. 2d 811 

(CA3 (1987); Guardians Assn. of N. Y. City Police Dept. v. Civil Serv. 

Comm’n, 630 F. 2d 79 (CA2 1980); Ensley Branch of NAACP v. Seibels, 

616 F. 2d 812 (CA5 1980); Firefighters Inst. for Racial Equality v. 

St. Louis, 616 F. 2d 350 (CA8 1980); Boston Chapter, NAACP v. 

Beecher, 504 F. 2d 1017 (CA1 1974). 
18 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

practice causes a disparate impact, amended Title VII

states, the burden is on the employer “to demonstrate that

the challenged practice is job related for the position in 

question and consistent with business necessity.” 42 

U. S. C. §2000e–2(k)(1)(A)(i). If the employer carries that

substantial burden, the complainant may respond by 

identifying “an alternative employment practice” which

the employer “refuses to adopt.” §2000e–2(k)(1)(A)(ii), (C). 

B 

Neither Congress’ enactments nor this Court’s Title VII 

precedents (including the now-discredited decision in 

Wards Cove) offer even a hint of “conflict” between an 

employer’s obligations under the statute’s disparatetreatment and disparate-impact provisions. Cf. ante, at 

20. Standing on an equal footing, these twin pillars of 

Title VII advance the same objectives: ending workplace

discrimination and promoting genuinely equal opportunity. See McDonnell Douglas Corp. v. Green, 411 U. S. 

792, 800 (1973).

Yet the Court today sets at odds the statute’s core directives. When an employer changes an employment practice 

in an effort to comply with Title VII’s disparate-impact

provision, the Court reasons, it acts “because of race”—

something Title VII’s disparate-treatment provision, see 

§2000e–2(a)(1), generally forbids. Ante, at 20. This characterization of an employer’s compliance-directed action

shows little attention to Congress’ design or to the Griggs 

line of cases Congress recognized as pathmarking.

“[O]ur task in interpreting separate provisions of a 

single Act is to give the Act the most harmonious, comprehensive meaning possible in light of the legislative policy 

and purpose.” Weinberger v. Hynson, Westcott & Dunning, 

Inc., 412 U. S. 609, 631–632 (1973) (internal quotation 

marks omitted). A particular phrase need not “extend to

the outer limits of its definitional possibilities” if an incon-
Cite as: 557 U. S. ____ (2009) 19 

GINSBURG, J., dissenting 

gruity would result. Dolan v. Postal Service, 546 U. S. 

481, 486 (2006). Here, Title VII’s disparate-treatment

and disparate-impact proscriptions must be read as 

complementary. 

In codifying the Griggs and Albemarle instructions, 

Congress declared unambiguously that selection criteria

operating to the disadvantage of minority group members 

can be retained only if justified by business necessity.5 In 

keeping with Congress’ design, employers who reject such 

criteria due to reasonable doubts about their 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 candidates of all races

have a fair opportunity to compete is simply not what

Congress meant to interdict. I would therefore hold that 

an employer who jettisons a selection device when its

disproportionate racial impact becomes apparent does not 

violate Title VII’s disparate-treatment bar automatically 

or at all, subject to this key condition: The employer must 

have good cause to believe the device would not withstand 

examination for business necessity. Cf. Faragher v. Boca 

Raton, 524 U. S. 775, 806 (1998) (observing that it accords

with “clear statutory policy” for employers “to prevent 

violations” and “make reasonable efforts to discharge their 

duty” under Title VII). 

EEOC’s interpretative guidelines are corroborative. 

“[B]y the enactment of title VII,” the guidelines state,

“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 “enforcement responsibility” 

—————— 

5What was the “business necessity” for the tests New Haven used? 

How could one justify, e.g., the 60/40 written/oral ratio, see supra, at 4– 

5, 7–8, under that standard? Neither the Court nor the concurring

opinions attempt to defend the ratio. 
20 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

under Title VII, we have previously accorded the Commission’s position respectful consideration. See, e.g., Albemarle, 422 U. S., at 431; Griggs, 401 U. S., at 434. Yet the 

Court today does not so much as mention EEOC’s counsel.

Our precedents defining the contours of Title VII’s 

disparate-treatment prohibition further confirm the absence of any intra-statutory discord. In Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616 (1987), 

we upheld a municipal employer’s voluntary affirmativeaction plan against a disparate-treatment challenge.

Pursuant to the plan, the employer selected a woman for a

road-dispatcher position, a job category traditionally 

regarded as “male.” A male applicant who had 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 factors.” Id., at 638. Such consideration, we said, is “fully 

consistent with Title VII” because plans of that order can

aid “in eliminating the vestiges of discrimination in the

workplace.” Id., at 642. 

This litigation does not involve affirmative action. But 

if the voluntary affirmative action at issue in Johnson 

does not discriminate within the meaning of Title VII, 

neither does an employer’s reasonable effort to comply 

with Title VII’s disparate-impact provision by refraining from action of doubtful consistency with business

necessity. 

C 

To “reconcile” the supposed “conflict” between disparate 

treatment and disparate impact, the Court offers an enigmatic standard. Ante, at 20. Employers may attempt to

comply with Title VII’s disparate-impact provision, the

Court declares, only where there is a “strong basis in

evidence” documenting the necessity of their action. Ante, 

at 22. The Court’s standard, drawn from inapposite equal 
Cite as: 557 U. S. ____ (2009) 21 

GINSBURG, J., dissenting 

protection precedents, is not elaborated. One is left to 

wonder what cases would meet the standard and why the 

Court is so sure this case does not. 

1 

In construing Title VII, I note preliminarily, equal

protection doctrine is of limited utility. The Equal Protection Clause, this Court has held, prohibits only intentional 

discrimination; it does not have a disparate-impact component. See Personnel Administrator of Mass. v. Feeney, 

442 U. S. 256, 272 (1979); Washington v. Davis, 426 U. S. 

229, 239 (1976). Title VII, in contrast, aims to eliminate 

all forms of employment discrimination, unintentional as 

well as deliberate. Until today, cf. ante, at 25; ante, p. 1 

(SCALIA, J., concurring), this Court has never questioned

the constitutionality of the disparate-impact component of

Title VII, and for good reason. By instructing employers

to avoid needlessly exclusionary selection processes, Title 

VII’s disparate-impact provision calls for a “race-neutral

means to increase minority . . . participation”—something

this Court’s equal protection precedents also encourage. 

See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 238 

(1995) (quoting Richmond v. J. A. Croson Co., 488 U. S. 

469, 507 (1989)). “The very radicalism of holding disparate impact doctrine unconstitutional as a matter of equal 

protection,” moreover, “suggests that only a very uncompromising court would issue such a decision.” Primus, 

Equal Protection and Disparate Impact: Round Three, 117

Harv. L. Rev. 493, 585 (2003). 

The cases from which the Court draws its strong-basisin-evidence standard are particularly inapt; they concern

the constitutionality of absolute racial preferences. See 

Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277 (1986) 

(plurality opinion) (invalidating a school district’s plan to

lay off nonminority teachers while retaining minority 

teachers with less seniority); Croson, 488 U. S., at 499–500 
22 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

(rejecting a set-aside program for minority contractors 

that operated as “an unyielding racial quota”). An employer’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 Wygant 

and Croson; it was the decisive factor. Observance of Title 

VII’s disparate-impact provision, in contrast, calls for no 

racial preference, absolute or otherwise. The very purpose

of the provision is to ensure that individuals are hired and 

promoted based on qualifications manifestly necessary to 

successful performance of the job in question, qualifications that do not screen out members of any race.6 

2 

The Court’s decision in this litigation underplays a

dominant Title VII theme. This Court has repeatedly

emphasized that the statute “should not be read to 

thwart” efforts at voluntary compliance. Johnson, 480 

U. S., at 630. Such compliance, we have explained, is “the 

preferred means of achieving [Title VII’s] objectives.” 

Firefighters v. Cleveland, 478 U. S. 501, 515 (1986). See 

also Kolstad v. American Dental Assn., 527 U. S. 526, 545 

(1999) (“Dissuading employers from [taking voluntary

action] to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII.”); 29 

—————— 

6Even in Title VII cases involving race-conscious (or genderconscious) affirmative-action plans, the Court has never proposed a

strong-basis-in-evidence standard. In Johnson v. Transportation 

Agency, Santa Clara Cty., 480 U. S. 616 (1987), the Court simply 

examined the municipal employer’s action for reasonableness: “Given 

the obvious imbalance in the Skilled Craft category, and given the 

Agency’s commitment to eliminating such imbalances, it was plainly 

not unreasonable for the Agency . . . to consider as one factor the sex of

[applicants] in making its decision.” Id., at 637. See also Firefighters v. 

Cleveland, 478 U. S. 501, 516 (1986) (“Title VII permits employers and 

unions voluntarily to make use of reasonable race-conscious affirmative 

action.”). 
Cite as: 557 U. S. ____ (2009) 23 

GINSBURG, J., dissenting 

CFR §1608.1(c). The strong-basis-in-evidence standard,

however, as barely described in general, and cavalierly 

applied in this case, makes voluntary compliance a hazardous venture. 

As a result of today’s decision, an employer who discards 

a dubious selection process can anticipate costly disparatetreatment litigation in which its chances for success—even

for surviving a summary-judgment motion—are highly

problematic. Concern about exposure to disparate-impact 

liability, however well grounded, is insufficient to insulate

an employer from attack. Instead, the employer must 

make a “strong” showing that (1) its selection method was

“not job related and consistent with business necessity,” or 

(2) that it refused to adopt “an equally valid, lessdiscriminatory alternative.” Ante, at 28. It is hard to see 

how these requirements differ from demanding that an

employer establish “a provable, actual violation” against 

itself. Cf. ante, at 24. There is indeed a sharp conflict 

here, but it is not the false one the Court describes between Title VII’s core provisions. It is, instead, the discordance of the Court’s opinion with the voluntary compliance ideal. Cf. Wygant, 476 U. S., at 290 (O’Connor, J., 

concurring in part and concurring in judgment) (“The

imposition of a requirement that public employers make

findings that they have engaged in illegal discrimination before they [act] would severely undermine public 

employers’ incentive to meet voluntarily their civil rights

obligations.”).7 

—————— 

7Notably, prior decisions applying a strong-basis-in-evidence standard have not imposed a burden as heavy as the one the Court imposes

today. In Croson, the Court found no strong basis in evidence because 

the City had offered “nothing approaching a prima facie case.” Richmond v. J. A. Croson Co., 488 U. S. 469, 500 (1989). The Court did not 

suggest that anything beyond a prima facie case would have been 

required. In the context of race-based electoral districting, the Court 

has indicated that a “strong basis” exists when the “threshold condi-
24 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

3 

The Court’s additional justifications for announcing a

strong-basis-in-evidence standard are unimpressive.

First, discarding the results of tests, the Court suggests,

calls for a heightened standard because it “upset[s] an 

employee’s legitimate expectation.” Ante, at 25. This 

rationale puts the cart before the horse. The legitimacy of 

an employee’s expectation depends on the legitimacy of the 

selection method. If an employer reasonably concludes

that an exam fails to identify the most qualified individuals and needlessly shuts out a segment of the applicant 

pool, Title VII surely does not compel the employer to hire

or promote based on the test, however unreliable it may 

be. Indeed, the statute’s prime objective is to prevent 

exclusionary practices from “operat[ing] to ‘freeze’ the 

status quo.” Griggs, 401 U. S., at 430. 

Second, the Court suggests, anything less than a strongbasis-in-evidence standard risks creating “a de facto quota

system, in which . . . an employer could discard test results . . . with the intent of obtaining the employer’s preferred racial balance.” Ante, at 22. Under a reasonableness standard, however, an employer could not cast aside

a selection method based on a statistical disparity alone.8 

The employer must have good cause to believe that the 

method screens out qualified applicants and would be

difficult to justify as grounded in business necessity. 

—————— 

tions” for liability are present. Bush v. Vera, 517 U. S. 952, 978 (1996) 

(plurality opinion). 8 Infecting the Court’s entire analysis is its insistence that the City

rejected the test results “in sole reliance upon race-based statistics.” 

Ante, at 24. See also ante, at 20, 27–28. But as the part of the story the 

Court leaves out, see supra, at 2–12, so plainly shows—the long history

of rank discrimination against African-Americans in the firefighting

profession, the multiple flaws in New Haven’s test for promotions—

“sole reliance” on statistics certainly is not descriptive of the CSB’s 

decision. 
Cite as: 557 U. S. ____ (2009) 25 

GINSBURG, J., dissenting 

Should an employer repeatedly reject test results, it would

be fair, I agree, to infer that the employer is simply seeking a racially balanced outcome and is not genuinely 

endeavoring to comply with Title VII. 

D 

The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strongbasis-in-evidence standard. When this Court formulates a 

new legal rule, the ordinary course is to remand and allow 

the lower courts to apply the rule in the first instance.

See, e.g., Johnson v. California, 543 U. S. 499, 515 (2005); 

Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982). I 

see no good reason why the Court fails to follow that 

course in this case. Indeed, the sole basis for the Court’s 

peremptory ruling is the demonstrably false pretension 

that respondents showed “nothing more” than “a significant statistical disparity.” Ante, at 27–28; see supra, at 

24, n. 8. 9 

—————— 

9The Court’s refusal to remand for further proceedings also deprives 

respondents of an opportunity to invoke 42 U. S. C. §2000e–12(b) as a 

shield to liability. Section 2000e–12(b) provides: 

“In any action or proceeding based on any alleged unlawful employment

practice, no person shall be subject to any liability or punishment for or

on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission 

complained of was in good faith, in conformity with, and in reliance on 

any written interpretation or opinion of the [EEOC] . . . . Such a 

defense, if established, shall be a bar to the action or proceeding,

notwithstanding that (A) after such act or omission, such interpretation 

or opinion is modified or rescinded or is determined by judicial authority to be invalid or of no legal effect . . . .” 

Specifically, given the chance, respondents might have called attention

to the EEOC guidelines set out in 29 CFR §§1608.3 and 1608.4 (2008). 

The guidelines recognize that employers may “take affirmative action

based on an analysis which reveals facts constituting actual or potential adverse impact.” §1608.3(a). If “affirmative action” is in order, so 

is the lesser step of discarding a dubious selection device. 
26 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

III 

A 

Applying what I view as the proper standard to the

record thus far made, I would hold that New Haven had 

ample cause to believe its selection process was flawed and 

not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure 

to certify the exam results violated Title VII’s disparatetreatment provision.10 

The City, all agree, “was faced with a prima facie case of 

disparate-impact liability,” ante, at 27: The pass rate for 

minority candidates was half the rate for nonminority

candidates, and virtually no minority candidates would 

have been eligible for promotion had the exam results 

been certified. Alerted to this stark disparity, the CSB 

heard expert and lay testimony, presented at public hearings, in an endeavor to ascertain whether the exams were 

fair and consistent with business necessity. Its investigation revealed grave cause for concern about the exam 

process itself and the City’s failure to consider alternative

selection devices. 

Chief among 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 weighting, the City simply adhered to the union’s preference and apparently gave no 

consideration to whether the weighting was likely to 

identify the most qualified fire-officer candidates.11 There 

—————— 

10The lower courts focused on respondents’ “intent” rather than on

whether respondents in fact had good cause to act. See 554 F. Supp. 2d 

142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration 

would be in order. But the Court has seen fit to preclude further 

proceedings. I therefore explain why, if final adjudication by this Court

is indeed appropriate, New Haven should be the prevailing party. 11This alone would have posed a substantial problem for New Haven 

in a disparate-impact suit, particularly in light of the disparate results

the City’s scheme had produced in the past. See supra, at 7. Under the 
Cite as: 557 U. S. ____ (2009) 27 

GINSBURG, J., dissenting 

is strong reason to think it was not.

Relying heavily on written tests to select fire officers is a 

questionable practice, to say the least. Successful fire 

officers, the City’s description of the position makes clear, 

must have the “[a]bility to lead personnel effectively,

maintain discipline, promote harmony, exercise sound 

judgment, and cooperate with other officials.” CA2 App. 

A432. These qualities are not well measured by written 

tests. Testifying before the CSB, Christopher Hornick, an

exam-design expert with more than two decades of relevant experience, was emphatic on this point: Leadership

skills, command presence, and the like “could have been

identified and evaluated in a much more appropriate 

way.” Id., at A1042–A1043. 

Hornick’s commonsense observation is mirrored in case 

law and in Title VII’s administrative guidelines. Courts 

have long criticized written firefighter promotion exams 

for being “more probative of the test-taker’s ability to

recall what a particular text stated on a given topic than

of his firefighting or supervisory knowledge and abilities.” 

—————— 

Uniform Guidelines on Employee Selection Procedures (Uniform

Guidelines), employers must conduct “an investigation of suitable

alternative selection procedures.” 29 CFR §1607.3(B). See also Officers 

for Justice v. Civil Serv. Comm’n, 979 F. 2d 721, 728 (CA9 1992) (“before utilizing a procedure that has an adverse impact on minorities, the

City has an obligation pursuant to the Uniform Guidelines to explore

alternative procedures and to implement them if they have less adverse 

impact and are substantially equally valid”). It is no answer to “presume” that the two-decades-old 60/40 formula was adopted for a “rational reason” because it “was the result of a union-negotiated collective

bargaining agreement.” Cf. ante, at 30. That the parties may have

been “rational” says nothing about whether their agreed-upon selection 

process was consistent with business necessity. It is not at all unusual 

for agreements negotiated between employers and unions to run afoul

of Title VII. See, e.g., Peters v. Missouri-Pacific R. Co., 483 F. 2d 490, 

497 (CA5 1973) (an employment practice “is not shielded [from the

requirements of Title VII] by the facts that it is the product of collective

bargaining and meets the standards of fair representation”). 
28 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv., 

625 F. Supp. 527, 539 (NJ 1985). A fire officer’s job, courts

have observed, “involves complex behaviors, good interpersonal skills, the ability to make decisions under tremendous pressure, and a host of other abilities—none of

which is easily measured by a written, multiple choice 

test.” Firefighters Inst. for Racial Equality v. St. Louis, 

616 F. 2d 350, 359 (CA8 1980).12 Interpreting the Uniform 

Guidelines, EEOC and other federal agencies responsible 

for enforcing equal opportunity employment laws have 

similarly recognized that, as measures of “interpersonal 

relations” or “ability to function under danger (e.g., firefighters),” “[p]encil-and-paper tests . . . generally are not

close enough approximations of work behaviors to show 

content validity.” 44 Fed. Reg. 12007 (1979). See also 29 

CFR §1607.15(C)(4).13 

Given these unfavorable appraisals, it is unsurprising 

that most municipal employers do not evaluate their fire-

—————— 

12See also Nash, 837 F. 2d, at 1538 (“the examination did not test the

one aspect of job performance that differentiated the job of firefighter 

engineer from fire lieutenant (combat): supervisory skills”); Firefighters 

Inst. for Racial Equality v. St. Louis, 549 F. 2d 506, 512 (CA8 1977)

(“there is no good pen and paper test for evaluating supervisory skills”); 

Boston Chapter, NAACP, 504 F. 2d, at 1023 (“[T]here is a difference

between memorizing . . . fire fighting terminology and being a good fire 

fighter. If the Boston Red Sox recruited players on the basis of their

knowledge of baseball history and vocabulary, the team might acquire 

[players] who could not bat, pitch or catch.”). 13Cf. Gillespie v. Wisconsin, 771 F. 2d 1035, 1043 (CA7 1985) (courts 

must evaluate “the degree to which the nature of the examination 

procedure approximates the job conditions”). In addition to “content 

validity,” the Uniform Guidelines discuss “construct validity” and 

“criterion validity” as means by which an employer might establish the

reliability of a selection method. See 29 CFR §1607.14(B)–(D). Content 

validity, however, is the only type of validity addressed by the parties 

and “the only feasible type of validation in these circumstances.” Brief 

for Industrial-Organizational Psychologists as Amicus Curiae 7, n. 2 

(hereinafter I-O Psychologists Brief). 
Cite as: 557 U. S. ____ (2009) 29 

GINSBURG, J., dissenting 

officer candidates as New Haven does. Although comprehensive statistics are scarce, a 1996 study found that 

nearly two-thirds of surveyed municipalities used assessment centers (“simulations of the real world of work”) as

part of their promotion processes. P. Lowry, A Survey of 

the Assessment Center Process in the Public Sector, 25 

Public Personnel Management 307, 315 (1996). That 

figure represented a marked increase over the previous 

decade, see ibid., so the percentage today may well be even 

higher. Among municipalities still relying in part on 

written exams, the median weight assigned to them was 

30 percent—half the weight given to New Haven’s written 

exam. Id., at 309. 

Testimony before the CSB indicated that these alternative methods were both more reliable and notably less

discriminatory in operation. According to Donald Day of

the International Association of Black Professional Firefighters, nearby Bridgeport saw less skewed results after 

switching to a selection process that placed primary

weight on an oral exam. CA2 App. A830–A832; see supra, 

at 7–8. And Hornick described assessment centers as 

“demonstrat[ing] dramatically less adverse impacts” than

written exams. CA2 App. A1040.14 Considering the 

prevalence of these proven alternatives, New Haven was 

poorly positioned to argue that promotions based on its 

outmoded and exclusionary selection process qualified as a 

business necessity. Cf. Robinson v. Lorillard Corp., 444 

—————— 

14See also G. Thornton & D. Rupp, Assessment Centers in Human 

Resource Management 15 (2006) (“Assessment centers predict future

success, do not cause adverse impact, and are seen as fair by participants.”); W. Cascio & H. Aguinis, Applied Psychology in Human Resource Management 372 (6th ed. 2005) (“research has demonstrated

that adverse impact is less of a problem in an [assessment center] as

compared to an aptitude test”). Cf. Firefighters Inst. for Racial Equality, 549 F. 2d, at 513 (recommending assessment centers as an alternative to written exams). 
30 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

F. 2d 791, 798, n. 7 (CA4 1971) (“It should go without 

saying that a practice is hardly ‘necessary’ if an alternative practice better effectuates its intended purpose or is

equally effective but less discriminatory.”).15 

Ignoring the conceptual and other defects in New Haven’s selection process, the Court describes the exams as

“painstaking[ly]” developed to test “relevant” material and

on that basis finds no substantial risk of disparate-impact 

liability. See ante, at 28. Perhaps such reasoning would 

have sufficed under Wards Cove, which permitted exclusionary practices as long as they advanced an employer’s 

“legitimate” goals. 490 U. S., at 659. But Congress repudiated Wards Cove and reinstated the “business necessity” 

rule attended by a “manifest relationship” requirement. 

See Griggs, 401 U. S., at 431–432. See also supra, at 17. 

Like the chess player who tries to win by sweeping the 

opponent’s pieces off the table, the Court simply shuts 

from its sight the formidable obstacles New Haven would 

have faced in defending against a disparate-impact suit. 

—————— 

15Finding the evidence concerning these alternatives insufficiently 

developed to “create a genuine issue of fact,” ante, at 32, the Court 

effectively confirms that an employer cannot prevail under its strongbasis-in-evidence standard unless the employer decisively proves a 

disparate-impact violation against itself. The Court’s specific arguments are unavailing. First, the Court suggests, changing the

oral/written weighting may have violated Title VII’s prohibition on

altering test scores. Ante, at 31. No one is arguing, however, that the 

results of the exams given should have been altered. Rather, the 

argument is that the City could have availed itself of a better option

when it initially decided what selection process to use. Second, with 

respect to assessment centers, the Court identifies “statements to the

CSB indicat[ing] that the Department could not have used [them] for

the 2003 examinations.” Ante, at 31–32. The Court comes up with only

a single statement on this subject—an offhand remark made by petitioner Ricci, who hardly qualifies as an expert in testing methods. See 

ante, at 14. Given the large number of municipalities that regularly 

use assessment centers, it is impossible to fathom why the City, with 

proper planning, could not have done so as well. 
Cite as: 557 U. S. ____ (2009) 31 

GINSBURG, J., dissenting 

See Lanning v. Southeastern Pa. Transp. Auth., 181 F. 3d 

478, 489 (CA3 1999) (“Judicial application of a standard 

focusing solely on whether the qualities measured by an

. . . exam bear 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 selecting fire officers. IOS 

worked within the City’s constraints. Legel never discussed with the City the propriety of the 60/40 weighting 

and “was not asked to consider the possibility of an assessment center.” CA2 App. A522. See also id., at A467. 

The IOS exams, Legel admitted, had not even attempted 

to assess “command presence”: “[Y]ou would probably be 

better off with an assessment center if you cared to measure that.” Id., at A521. Cf. Boston Chapter, NAACP v. 

Beecher, 504 F. 2d 1017, 1021–1022 (CA1 1974) (“A test

fashioned from materials pertaining to the job . . . superficially may seem job-related. But what is at issue is 

whether it demonstrably selects people who will perform 

better the required on-the-job behaviors.”).

In addition to the highly questionable character of the

exams and the neglect of available alternatives, the City 

had other reasons to worry about its vulnerability to disparate-impact liability. Under the City’s ground rules,

IOS was not allowed to show the exams to anyone in the 

New Haven Fire Department prior to their administration. This “precluded [IOS] from being able to engage in

[its] normal subject matter expert review process”—

something Legel described as “very critical.” CA2 App.

A477, A506. As a result, some of the exam questions were

confusing or irrelevant, and the exams may have overtested some subject-matter areas while missing others. 

See, e.g., id., at A1034–A1035, A1051. Testimony before

the CSB also raised questions concerning unequal access 
32 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

to study materials, see id., at A857–A861, and the potential bias introduced by relying principally on job analyses 

from nonminority fire officers to develop the exams, see 

id., at A1063–A1064.16 See also supra, at 7, 10. 

The Court criticizes New Haven for failing to obtain a 

“technical report” from IOS, which, the Court maintains, 

would have provided “detailed information to establish the 

validity of the exams.” Ante, at 29. The record does not 

substantiate this assertion. As Legel testified during his 

deposition, the technical report merely summarized “the 

steps that [IOS] took methodologically speaking,” 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 say”). 

In sum, the record solidly establishes that the City had

good cause to fear disparate-impact liability. Moreover, 

the Court supplies no tenable explanation why the evidence of the tests’ multiple deficiencies does not create at

least a triable issue under a strong-basis-in-evidence

standard. 

—————— 

16The I-O Psychologists Brief identifies still other, more technical

flaws in the exams that may well have precluded the City from prevailing in a disparate-impact suit. Notably, the exams were never shown to

be suitably precise to allow strict rank ordering of candidates. A 

difference of one or two points on a multiple-choice exam should not be 

decisive of an applicant’s promotion chances if that difference bears

little relationship to the applicant’s qualifications for the job. Relatedly, it appears that the line between a passing and failing score did

not accurately differentiate between qualified and unqualified candidates. A number of fire-officer promotional exams have been invalidated on these bases. See, e.g., Guardians Assn., 630 F. 2d, at 105 

(“When a cutoff score unrelated to job performance produces disparate

racial results, Title VII is violated.”); Vulcan Pioneers, Inc. v. New 

Jersey Dept. of Civil Serv., 625 F. Supp. 527, 538 (NJ 1985) (“[T]he tests 

here at issue are not appropriate for ranking candidates.”). 
Cite as: 557 U. S. ____ (2009) 33 

GINSBURG, J., dissenting 

B 

Concurring in the Court’s opinion, JUSTICE ALITO asserts that summary judgment for respondents would be

improper even if the City had good cause for its noncertification decision. A reasonable jury, he maintains, could 

have found that respondents were not actually motivated 

by concern about disparate-impact litigation, but instead 

sought only “to placate a politically important [AfricanAmerican] constituency.” Ante, at 3. As earlier noted, I 

would not oppose a remand for further proceedings fair to

both sides. See supra, at 26, n. 10. It is the Court that 

has chosen to short-circuit this litigation based on its

pretension that the City has shown, and can show, nothing more than a statistical disparity. See supra, at 24, 

n. 8, 25. JUSTICE ALITO compounds the Court’s error.

Offering a truncated synopsis of the many hours of

deliberations undertaken by the CSB, JUSTICE ALITO finds 

evidence suggesting that respondents’ stated desire to

comply with Title VII was insincere, a mere “pretext” for

discrimination against white firefighters. Ante, at 2–3. In 

support of his assertion, JUSTICE ALITO recounts at length

the alleged machinations of Rev. Boise Kimber (a local

political activist), Mayor John DeStefano, and certain 

members of the mayor’s staff. See ante, at 3–10. 

Most of the allegations JUSTICE ALITO repeats are

drawn from petitioners’ statement of facts they deem

undisputed, a statement displaying an adversarial zeal

not uncommonly found in such presentations.17 What 

—————— 

17Some of petitioners’ so-called facts find little support in the record,

and many others can scarcely be deemed material. Petitioners allege, 

for example, that City officials prevented New Haven’s fire chief and

assistant chief from sharing their views about the exams with the CSB.

App. to Pet. for Cert. in No. 07–1428, p. 228a. None of the materials 

petitioners cite, however, “suggests” that this proposition is accurate.

Cf. ante, at 5. In her deposition testimony, City official Karen DuboisWalton specifically denied that she or her colleagues directed the chief 
34 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

cannot credibly be denied, however, is that the decision

against certification of the exams was made neither by

Kimber nor by the mayor and his staff. The relevant 

decision was made by the CSB, an unelected, politically

insulated body. It is striking that JUSTICE ALITO’s concurrence says hardly a word about the CSB itself, perhaps 

because there is scant evidence that its motivation was 

anything other than to comply with Title VII’s disparateimpact provision. Notably, petitioners did not even seek to 

take depositions of the two commissioners who voted 

against certification. Both submitted uncontested affidavits declaring unequivocally that their votes were “based

solely on [their] good faith belief that certification” would 

have discriminated against minority candidates in violation of federal law. CA2 App. A1605, A1611. 

JUSTICE ALITO discounts these sworn statements, suggesting that the CSB’s deliberations were tainted by the

preferences of Kimber and City officials, whether or not 

the CSB itself was aware of the taint. Kimber and City 

officials, JUSTICE ALITO speculates, decided early on to

oppose certification and then “engineered” a skewed presentation to the CSB to achieve their preferred outcome. 

Ante, at 12. 

—————— 

and assistant chief not to appear. App. to Pet. for Cert. in No. 07–1428, 

p. 850a. Moreover, contrary to the insinuations of petitioners and 

JUSTICE ALITO, the statements made by City officials before the CSB did

not emphasize allegations of cheating by test takers. Cf. ante, at 7–8. 

In her deposition, Dubois-Walton acknowledged sharing the cheating 

allegations not with the CSB, but with a different City commission.

App. to Pet. for Cert. in No. 07–1428, p. 837a. JUSTICE ALITO also 

reports that the City’s attorney advised the mayor’s team that the way

to convince the CSB not to certify was “to focus on something other

than ‘a big discussion re: adverse impact’ law.” Ante, at 8 (quoting App. 

to Pet. for Cert. in No. 07–1428, p. 458a). This is a misleading abbreviation of the attorney’s advice. Focusing on the exams’ defects and on 

disparate-impact law is precisely what he recommended. See id., at 

458a–459a. 
Cite as: 557 U. S. ____ (2009) 35 

GINSBURG, J., dissenting 

As an initial matter, JUSTICE ALITO exaggerates the 

influence of these actors. The CSB, the record reveals, 

designed and conducted an inclusive decisionmaking 

process, in which it heard from numerous individuals on

both sides of the certification question. See, e.g., CA2 App. 

A1090. Kimber and others no doubt used strong words to 

urge the CSB not to certify the exam results, but the CSB

received “pressure” from supporters of certification as well 

as opponents. Cf. ante, at 6. Petitioners, for example,

engaged counsel to speak on their behalf before the CSB. 

Their counsel did not mince words: “[I]f you discard these

results,” she warned, “you will get sued. You will force the 

taxpayers of the city of New Haven into protracted litigation.” CA2 App. A816. See also id., at A788. 

The local firefighters union—an organization required

by law to represent all the City’s firefighters—was similarly outspoken in favor of certification. Discarding the

test results, the union’s president told the CSB, would be

“totally ridiculous.” Id., at A806. He insisted, inaccurately, that the City was not at risk of disparate-impact

liability because the exams were administered pursuant to 

“a collective bargaining agreement.” Id., at A1137. Cf. 

supra, at 26–27, n. 11. Never mentioned by JUSTICE 

ALITO in his attempt to show testing expert Christopher

Hornick’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 

—————— 

18City officials, JUSTICE ALITO reports, sent Hornick newspaper accounts and other material about the exams prior to his testimony. 

Ante, at 8. Some of these materials, JUSTICE ALITO intimates, may have

given Hornick an inaccurate portrait of the exams. But Hornick’s 

testimony before the CSB, viewed in full, indicates that Hornick had an

accurate understanding of the exam process. Much of Hornick’s analysis focused on the 60/40 weighting of the written and oral exams, 
36 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

There is scant cause to suspect that maneuvering or

overheated rhetoric, from either side, prevented the CSB 

from evenhandedly assessing the reliability of the exams

and rendering an independent, good-faith decision on

certification. JUSTICE ALITO acknowledges that the CSB 

had little patience for Kimber’s antics. Ante, at 6–7.19 As 

to petitioners, Chairman Segaloff—who voted to certify

the exam results—dismissed the threats made by their 

counsel as unhelpful and needlessly “inflammatory.” CA2 

App. A821. Regarding the views expressed by City officials, the CSB made clear that they were entitled to no 

special weight. Id., at A1080.20 

In any event, JUSTICE ALITO’s analysis contains a more

fundamental flaw: It equates political considerations with

unlawful discrimination. As JUSTICE ALITO sees it, if the 

mayor and his staff were motivated by their desire “to

placate a . . . racial constituency,” ante, at 3, then they 

engaged in unlawful discrimination against petitioners.

But JUSTICE ALITO fails to ask a vital question: “[P]lacate” 

how? That political officials would have politics in mind is 

hardly extraordinary, and there are many ways in which a 

politician can attempt to win over a constituency— 

—————— 

something that neither the Court nor the concurrences even attempt to

defend. It is, moreover, entirely misleading to say that the City later

hired union-proposed Hornick as a “rewar[d]” for his testimony. Cf. 

Ante, at 9. 19To be clear, the Board of Fire Commissioners on which Kimber 

served is an entity separate from the CSB. Kimber was not a member 

of the CSB. Kimber, JUSTICE ALITO states, requested a private meeting 

with the CSB. Ante, at 6. There is not a shred of evidence that a 

private meeting with Kimber or anyone else took place. 20 JUSTICE ALITO points to evidence that the mayor had decided not to

make promotions based on the exams even if the CSB voted to certify 

the results, going so far as to prepare a press release to that effect. 

Ante, at 9. If anything, this evidence reinforces the conclusion that the 

CSB—which made the noncertification decision—remained independent and above the political fray. The mayor and his staff needed a 

contingency plan precisely because they did not control the CSB. 
Cite as: 557 U. S. ____ (2009) 37 

GINSBURG, J., dissenting 

including a racial constituency—without engaging in

unlawful discrimination. As courts 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 political favor.” Henry v. Jones, 507 F. 3d 558, 567 

(CA7 2007).

The real issue, then, is not whether the mayor and his

staff were politically motivated; it is whether their attempt to score political points was legitimate (i.e., nondiscriminatory). Were they seeking to exclude white firefighters from promotion (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-impact 

suit? In the latter case, there is no disparate-treatment 

violation. JUSTICE ALITO, I recognize, would disagree. In 

his view, an employer’s action to avoid Title VII disparateimpact liability qualifies as a presumptively improper 

race-based employment decision. See ante, at 2. I reject 

that construction 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, supported by 

Griggs and the long line of decisions following Griggs, see 

supra, at 16–17, and nn. 3–4, the District Court found no 

genuine dispute of material fact. That court noted, particularly, the guidance furnished by Second Circuit precedent. See supra, at 12. Petitioners’ allegations that City

officials took account of politics, the District Court determined, simply “d[id] not suffice” to create an inference of

unlawful discrimination. 554 F. Supp. 2d, at 160, n. 12. 

The noncertification decision, even if undertaken “in a 

political context,” reflected a legitimate “intent not to

implement a promotional process based on testing results 

that had an adverse impact.” Id., at 158, 160. Indeed, the 
38 RICCI v. DESTEFANO 

GINSBURG, J., dissenting 

District Court perceived “a total absence of any evidence of 

discriminatory animus towards [petitioners].” Id., at 158. 

See also id., at 162 (“Nothing in the record in this case

suggests that the City defendants or CSB acted ‘because

of’ discriminatory animus toward [petitioners] or other 

non-minority applicants for promotion.”). Perhaps the 

District Court could have been more expansive in its

discussion of these issues, but its conclusions appear 

entirely consistent with the record before it.21 

It is indeed regrettable that the City’s noncertification

decision would have required all candidates to go through

another selection process. But it would have been more 

regrettable to rely on flawed exams to shut out candidates

who may well have the command presence and other 

qualities needed to excel as fire officers. Yet that is the 

choice the Court makes today. It is a choice that breaks 

the promise of Griggs that groups long denied equal opportunity would not be held back by tests “fair in form, but

discriminatory in operation.” 401 U. S., at 431. 

—————— 

21The District Court, JUSTICE ALITO writes, “all but conceded that a 

jury could find that the City’s asserted justification was pretextual” by 

“admitt[ing] that ‘a jury could rationally infer that city officials worked 

behind the scenes to sabotage the promotional examinations because

they knew that, were the exams certified, the Mayor would incur the 

wrath of [Rev. Boise] Kimber and other influential leaders of New

Haven’s African-American community.’ ” Ante, at 3, 13 (quoting 554 F. 

Supp. 2d, at 162). The District Court drew the quoted passage from 

petitioners’ lower court brief, and used it in reference to a First Amendment claim not before this Court. In any event, it is not apparent why

these alleged political maneuvers suggest an intent to discriminate

against petitioners. That City officials may have wanted to please

political supporters is entirely consistent with their stated desire to

avoid a disparate-impact violation. Cf. Ashcroft v. Iqbal, 556 U. S. ___, 

___ (2009) (slip op., at 18) (allegations that senior Government officials 

condoned the arrest and detention of thousands of Arab Muslim men 

following the September 11 attacks failed to establish even a “plausible

inference” of unlawful discrimination sufficient to survive a motion to 

dismiss). 
Cite as: 557 U. S. ____ (2009) 39 

GINSBURG, J., dissenting 

* * * 

This case presents an unfortunate situation, one New 

Haven might well have avoided had it utilized a better 

selection process in the first place. But what this case 

does not present is race-based discrimination in violation

of Title VII. I dissent from the Court’s judgment, which 

rests on the false premise that respondents showed “a

significant statistical disparity,” but “nothing more.” See 

ante, at 27–28.