Supreme Court Sets New Standard for Evaluating Disparate Treatment Versus Disparate Impact
In Ricci v. DeStefano (June 29, 2009), a 5-4 decision, the Court held that the mere desire to avoid liability under Title VII's disparate impact provision does not automatically justify a conscious decision to violate the statute's disparate treatment provision. Title VII's disparate treatment provision prohibits intentional discrimination on the basis of a protected category, while the disparate impact provision prohibits certain practices that are not intended to discriminate but, in fact, have a disproportionately adverse effect on minorities. Recognizing the difficulty employers may face in balancing these competing interests, the Court adopted a "strong basis in evidence" test to be used in such situations. Under this standard, employers must demonstrate that a strong basis in evidence exists that their actions might violate Title VII's disparate impact provisions before employers can make race-based decisions.
Applying the standard in this case, the Court held that several white and Hispanic firefighters were entitled to judgment in their favor on their claims that the City of New Haven intentionally discriminated against them when it refused to certify the results of tests administered to determine which firefighters qualified for promotions. The City refused to certify the test results based on a concern that the tests had a disparate impact on minorities. However, the Court held that the City failed to show that it had "an objective, strong basis in evidence to find the tests inadequate."
Court Rejects "Mixed Motive" Age Discrimination Claims
In Gross v. FBL Financial Services, Inc. (June 18, 2009), a 5-4 decision, the Court held that to prevail on an ADEA claim, the individual claiming discrimination must prove that age was the "but-for" cause of the alleged adverse employment action – i.e., that the employer would not have taken the adverse employment action but for the individual's age.
This decision means that individuals suing for disparate treatment under the ADEA can no longer prevail by showing that the employer acted with "mixed motives," one of which was the individual's age. Before this decision, many courts permitted individuals bringing age discrimination claims to show that age was one of the reasons for the adverse employment action and required employers to prove that they would have taken the adverse action regardless of age.
Under the Court's decision, "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision."
Supreme Court Finds No Current Violation of Title VII Based on Pre-PDA Leave Credit Policy
In AT&T Corp. v. Hulteen, (May 18, 2009), the Court held that an employer does not necessarily violate the Pregnancy Discrimination Act (PDA) by paying pension benefits calculated, in part, based on a system that did not give full credit for time spent on maternity leave but did give full credit for other types of medical leave, where the maternity leave accrual policy was applied only prior to the enactment of the Pregnancy Discrimination Act. In reaching this conclusion, the Court held that there was no necessary violation and that the benefit calculation rule in this case was part of a bona fide seniority system under § 703(h) of Title VII, which insulates it from challenge.
Additionally, the Court held that the PDA does not apply retroactively, noting that there was "no indication at all that Congress had retroactive application in mind" when it enacted the PDA. •