OPINION OF THE COURT RICCI V. DESTEFANO 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NOS. 07-1428 AND 08-328 FRANK RICCI, et al., PETITIONERS

															07–1428 v. JOHN De STEFANO et al.

															FRANK RICCI, et al., PETITIONERS

															08–328 v. JOHN De STEFANO 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 studied 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 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’ cross-motions 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 civil-service 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 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 required by CSB rules, and was written below a
10th-grade 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
job-analysis 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 three-member 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 promotion 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
employer-initiated, 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 “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 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 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 three-member 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
methodology.” 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 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 people 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 disparate-impact 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 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.

															   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 test results. They
include the named plaintiff, Frank Ricci, who addressed the CSB at
multiple meetings.

															   Petitioners sued the City, Mayor
DeStefano, DuBois-Walton, 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 right-to-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 disparate-impact bar. Petitioners countered that
respondents’ good-faith 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 alternative 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.

															II

															   Petitioners raise a statutory
claim, under the disparate-treatment 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 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
disparate-impact 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 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
disparate-impact 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 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 race-based 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, under Title VII, avoiding
unintentional discrimination cannot justify intentional
discrimination. That assertion, however, ignores the fact that, by
codifying the disparate-impact 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 adverse 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 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
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 disparate-impact 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 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-in-evidence 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 comments 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-in-evidence 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 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 one-half 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
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 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 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 then-open 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). A state court has interpreted the charter
to prohibit so-called “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 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-in-evidence 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 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 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
disparate-treatment 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 disparate-treatment 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. SCALIA, J., CONCURRING RICCI V. DESTEFANO 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NOS. 07-1428 AND 08-328 FRANK RICCI, et al., PETITIONERS

															07–1428 v. JOHN De STEFANO et al.

															FRANK RICCI, et al., PETITIONERS

															08–328 v. JOHN De STEFANO 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
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
disparate-impact 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. Peńa , 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
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. ALITO, J., CONCURRING RICCI V. DESTEFANO 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NOS. 07-1428 AND 08-328 FRANK RICCI, et al., PETITIONERS

															07–1428 v. JOHN De STEFANO et al.

															FRANK RICCI, et al., PETITIONERS

															08–328 v. JOHN De STEFANO 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 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 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.

															   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-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.[ Footnote 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
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 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
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,
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.”[ Footnote 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.

															   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.

															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
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.

															*  *  *

															   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. Footnote 1 Although 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). Footnote 2 The 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. GINSBURG, J., DISSENTING RICCI V. DESTEFANO 557 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NOS. 07-1428 AND 08-328 FRANK RICCI, et al., PETITIONERS

															07–1428 v. JOHN De STEFANO et al.

															FRANK RICCI, et al., PETITIONERS

															08–328 v. JOHN De STEFANO 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 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.[ Footnote 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.
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-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
two-decades-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 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 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 disparate-impact 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 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 “first-generation
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 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.

															   Specifically, Hornick questioned New Haven’s
union-prompted 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 reading 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 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 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
disparate-impact 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 non-minority
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 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 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.[ Footnote 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
[African-Americans].” Id ., at 429. At the time of the
litigation, in North Carolina, where the Duke Power plant was
located, 34 percent of white males, but only 12 percent of
African-American 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
workmanship.’ ” 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).[ Footnote 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 hiring and promotional examinations for
firefighters.[ Footnote 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 disparate-impact
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 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
disparate-treatment 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 incongruity 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.[ Footnote 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” 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 affirmative-action 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 refrain- ing 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 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. Peńa , 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-basis-in-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
(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.[ Footnote 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 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 disparate-treatment 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, less-discriminatory 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 discrimina- tion before they [act] would
severely undermine public employers’ incentive to meet voluntarily
their civil rights obligations.”).[ Footnote 7 ]

															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 strong-basis-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.[ Footnote 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. 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
strong-basis-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. [ Footnote 9 ] 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
disparate-treatment provision.[ Footnote 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.[ Footnote 11 ] There 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.” 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).[ Footnote 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).[ Footnote 13 ] Given these unfavorable
appraisals, it is unsurprising that most municipal employers do not
evaluate their fire-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.[ Footnote 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
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.”).[ Footnote
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. 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
over-tested 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 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.[ Footnote 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. 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 [African-American]
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.[ Footnote 17 ] What 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 disparate-impact 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. 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.[ Footnote 18 ] 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.[ Footnote 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.[ Footnote 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—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 disparate-impact 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 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.[ Footnote
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. *  *  * 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. Footnote
1 Never 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 African-American 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? Footnote
2 The 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”). Footnote
3 See 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.”). Footnote
4 See, 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). Footnote
5 What 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. Footnote
6 Even in Title VII cases
involving race-conscious (or gender-conscious) 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.”). Footnote
7 Notably, 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 conditions” for liability are present. Bush v. Vera , 517
U. S. 952 , 978 (1996) (plurality opinion). Footnote
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. Footnote
9 The 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. Footnote
10 The 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. Footnote
11 This 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
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”). Footnote
12 See 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.”). Footnote
13 Cf. 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). Footnote
14 See 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). Footnote
15 Finding 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
strong-basis-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. Footnote
16 The 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.”). Footnote
17 Some 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 Dubois-Walton specifically denied that she or
her colleagues directed the chief 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. Footnote
18 City 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,
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. Footnote
19 To 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. Footnote
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. Footnote
21 The 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).

Summary: In Ricci v. DeStefano, the Supreme Court ruled that New Haven's decision to discard the results of a promotional exam for firefighters due to concerns about racial disparities was a violation of Title VII of the Civil Rights Act. The Court found that the city's actions constituted intentional discrimination against white and Hispanic firefighters who had performed well on the exam. The Court held that while avoiding disparate impact is a legitimate goal, it does not justify discarding the results of a fairly administered exam.