RICCI v. DeSTEFANO
- Syllabus [HTML] [PDF]
- Opinion, Kennedy [HTML] [PDF]
- Concurrence, Scalia [HTML] [PDF]
- Concurrence, Alito [HTML] [PDF]
- Dissent, Ginsburg [HTML] [PDF]
RICCI et al.v. DeSTEFANO et al.
certiorari to the united states court of appeals for the second circuit
New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test resultsand threats of a lawsuit either waythe City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the Citys refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.
Held: The Citys action in discarding the tests violated Title VII. Pp. 1634.
(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that itspolicy or practice is job related for the position in question and consistent with business necessity. Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employers legitimate needs. §§2000e2(k)(1)(A)(ii) and (C). Pp. 1719.
(b) Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Courts analysis begins with the premise that the Citys actions would violate Title VIIs disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results becausethe higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendments Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977. In those cases, the Court held that certain government actions to remedy past racial discriminationactions that are themselves based on raceare 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; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that [e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees. Ibid. The same interests are at work in the interplay between Title VIIs disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see §2000e2(l), and the section that expressly protects bona fide promotional exams, see §2000e2(h). Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VIIs disparate-treatment and disparate-impact provisions. Pp. 1926.
(c) The Citys race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 2634.
(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima faciecase of disparate-impact liability. The problem for respondents is that such a prima facie caseessentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, and nothing moreis far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the Citys needs but that the City refused to adopt. §§2000e2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Pp. 2628.
(ii) The Citys assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams validity. Pp. 2829.
(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents approach would have violated Title VIIs prohibition of race-based adjustment of test results, §2000e2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. Pp. 2933.
(iv) Fear of litigation alone cannot justify the Citys reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of todays holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 3334.
530 F. 3d 87, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a concurring opinion. Alito, J., filed a concurring opinion, in which Scalia and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined.
* Together with No. 08328, Ricci et al. v. DeStefano et al., also on certiorari to the same court.
FRANK RICCI, et al., PETITIONERS
JOHN DeSTEFANO et al.
FRANK RICCI, et al., PETITIONERS
JOHN DeSTEFANO et al.
on writs of certiorari to the united states court of appeals for the second circuit
Justice Alito, with whom Justice Scalia and Justice Thomas join, concurring.
I join the Courts opinion in full. I write separately only because the dissent, while claiming that [t]he Courts 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 Havens decision to reject the results of its exam. The dissents 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 IIIA of the dissent were accepted, affirmance of the decision below is untenable.
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 questionsone objective and one subjectivemust be decided. The first, objective question is whether the reason given by the employer is one that is legitimate under Title VII. See St. Marys Honor Center v. Hicks, 509 U. S. 502, 506507 (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 employers 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 510512.
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 holdsand I entirely agreethat 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 arguesincorrectly, in my viewthat 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 Citys asserted reason for scrapping its testconcern about disparate-impact liabilitywas a pretext and that the Citys real reason was illegitimate, namely, the desire to placate a politically important racial constituency.
As initially described by the dissent, see post, at 212, 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 Havens African-American community. 554 F. Supp. 2d 142, 162 (Conn. 2006), summarily affd, 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. 071428, 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 Kimbers 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. Kimberthen the manager of a funeral homewas 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 DeStefanos political campaigns, [and] is considered a valuable political supporter and vote-getter. Id., at 126a. According to the Mayors former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because [h]es 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 928a929a. 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. 071428, 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 Citys 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 Citys response. Id., at 815a816a. As discussed in further detail below, Rev. Kimber adamantly opposed certification of the test resultsa fact that he or someone in the Mayors office eventually conveyed to the Mayor. Id., at 229a.
On January 12, 2004, Tina Burgett (the director of the Citys Department of Human Resources) sent an e-mail to Dubois-Walton to coordinate the Citys response to the test results. Burgett wanted to clarify that the Citys 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 Grants or Dumas views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regarding the matter. Id., at 228a.1
The next day, on January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New Haven to meet with Dubois-Walton, Burgett, and Thomas Ude, the Citys 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 179a180a. 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, 467a468a; see also App. in No. 064996cv (CA2), pp. A703A705. 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. 071428, at 188a.
Four days after the CSBs first meeting, Mayor DeStefanos 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]ets remember, that these folks are not against certification yet. So we cant 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 586a587a.
One of Rev. Kimbers 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 Mayors office. See, e.g., id., at 129a130a, 816a817a. After learning that he had not scored well enough on the captains exam to earn a promotion, Tinney called Dubois-Walton and arranged a meeting in her office. Id., at 830a831a, 836a. Tinney alleged that the white firefighters had cheated on their examsan accusation that Dubois-Walton conveyed to the Board without first conducting an investigation into its veracity. Id., at 837a838a; 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. 071428, 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 Mayors office to make the CSB meetings appear deliberative, see id., at 190a, executive officials remained publicly uncommitted about certificationwhile 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 members 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 recommendationI would not have made a recommendation like that ). But within days of making that public statement, Ude privately told other members of the Mayors 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 458a459a.
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 Legels 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 Legels 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 accountsagain, sent to him by Burgettpertaining 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 560a561a, the City repeatedly relied upon Hornick as a testing guru and, in the CSB Chairmans 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 waya better mousetrap.2 App. in No. 064996cv (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. 071428, at 854a; see also id., at 562a563a (Hornicks plea for future business from the City on the basis of his criticisms of Legels tests).
At some point prior to the CSBs public meeting on March 18, 2004, the Mayor decided to use his executive authority to disregard the test resultseven if the CSB ultimately voted to certify them. Id., at 819a820a. Accordingly, on the evening of March 17th, Dubois-Walton sent an e-mail to the Mayor, the Mayors 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 Mayors invocation of his executive authority) if the CSB voted to certify the test results. Id., at 217a218a, 590a591a, 819a820a. Half an hour after Dubois-Walton circulated the alternative drafts, Burgett replied: [W]ell, that seems to say it all. Lets 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.
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 workedas things turned out, successfullyto 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 Citys 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 Generalwhose position on the principal legal issue in this case is largely aligned with the dissentconcludes 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 AmicusCuriae 6; see also id., at3233.
I will not comment at length on the dissents criticism of my analysis, but two points require a response.
The first concerns the dissents 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 constituencyincluding a racial constituencywithout engaging in unlawful discrimination. Post, at 3637. Butas I assume the dissent would agreethere 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 dissents main argumentthat 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 dissents argument would implicitly decide an important question of Title VII law that this Court has never resolvedthe 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, 484488 (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 subordinates 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 Mayornot the CSBwielded 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 CSBs decision rejecting the test results. In light of the Mayors 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. 071428, 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 childrens birthdays and over two weeks of vacation time, and incurred significant financial expense during the three-month study period. Id., at 176a177a.
Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the Citys 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 Citys 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 Courts 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 lawof Title VIIs prohibition against discrimination based on race. And that is what, until todays decision, has been denied them.
1 Although the dissent disputes it, see post, at 3334, n. 17, the record certainly permits the inference that petitioners allegation is true. See App. to Pet. for Cert. in No. 071428, pp. 846a851a (deposition of Dubois-Walton).
2 The Citys heavy reliance on Hornicks 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. 071428, 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 847a848a.