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Judicial Watch • Supreme Court Ruling 612011

Supreme Court Ruling 612011

Supreme Court Ruling 612011

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Date Created:June 27, 2009

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Syllabus 
NOTE: Where feasible, syllabus (headnote) will released, isbeing done connection with this case, the time the opinion issued.The syllabus constitutes part the opinion the Court but has beenprepared the Reporter Decisions for the convenience the reader. See United States Detroit Timber Lumber Co., 200 321, 337. 
SUPREME COURT THE UNITED STATES 
Syllabus 
RICCI AL. DESTEFANO AL. 
CERTIORARI THE UNITED STATES COURT APPEALS FOR THE SECOND CIRCUIT 
No. 071428. Argued April 22, 2009Decided June 29, 2009* 
New Haven, Conn. (City), uses objective examinations identify thosefirefighters best qualified for promotion.  When the results such exam fill vacant lieutenant and captain positions showed thatwhite candidates had outperformed minority candidates, rancorouspublic debate ensued.  Confronted with arguments both for and against certifying the test resultsand threats lawsuit eitherwaythe City threw out the results based the statistical racial disparity.  Petitioners, white and Hispanic firefighters who passedthe exams but were denied chance promotions the Citys refusal certify the test results, sued the City and respondent officials,alleging that discarding the test results discriminated against thembased their race violation of, inter alia, Title VII the Civil Rights Act 1964.  The defendants responded that had they certifiedthe test results, they could have faced Title VII liability for adoptinga practice having disparate impact minority firefighters.  The District Court granted summary judgment for the defendants, andthe Second Circuit affirmed. 
Held: The Citys action discarding the tests violated Title VII. Pp. 1634. 
(a) Title VII prohibits intentional acts employment discrimination based race, color, religion, sex, and national origin, 2000e2(a)(1) (disparate treatment), well policies practices that are not intended discriminate but fact have disproportionately adverse effect minorities, 2000e2(k)(1)(A)(i) (disparateimpact).  Once plaintiff has established prima facie case dispa
 
*Together with No. 08328, Ricci al. DeStefano al., also certiorari the same court. 
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Syllabus 
rate impact, the employer may defend demonstrating that itspolicy practice job related for the position question and consistent with business necessity. Ibid. the employer meets that burden, the plaintiff may still succeed showing that the employerrefuses adopt 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 employer can engage intentionaldiscrimination for the asserted purpose avoiding remedying unintentional, disparate impact, the employer must have strong basis evidence believe will subject disparate-impact liability fails 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 somevalid defense. All the evidence demonstrates that the City rejectedthe test results because the higher scoring candidates were white.Without some other justification, this express, race-based decisionmaking prohibited. The question, therefore, whether the purpose avoid disparate-impact liability excuses what otherwise would prohibited disparate-treatment discrimination.  The Court has considered cases similar the present litigation, but the contextof the Fourteenth Amendments Equal Protection Clause.  Such cases can provide helpful guidance this statutory context.  See Watson Fort Worth Bank Trust, 487 977, 993. those cases, the Court held that certain government actions remedy past racial discriminationactions that are themselves based raceare constitutional only where there strong basis evidence that the remedial actions were necessary.  Richmond Croson Co., 488 469, 500; see also Wygant Jackson Bd. Ed., 476 267, 

277. announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination the one hand and doing away with all governmentally imposed discrimination based race the other.  476 S., 277. reasoned that [e]videntiary support for the conclusion that remedial action warranted becomes crucial when the remedial program challenged court nonminority employees. Ibid.  The same interests are work the interplay between TitleVIIs disparate-treatment and disparate-impact provisions.  Applying the strong-basis-in-evidence standard Title VII gives effect toboth provisions, allowing violations one the name compliance with the other only certain, narrow circumstances. also allows the disparate-impact prohibition work manner that consistent with other Title VII provisions, including the prohibition adjusting employment-related test scores based race, see 2000e 
Syllabus 
2(l), and the section that expressly protects bona fide promotional exams, see 2000e2(h).  Thus, the Court adopts the strong-basis-inevidence standard matter statutory construction order resolve any conflict between Title VIIs disparate-treatment and disparate-impact provisions.  Pp. 1926.
(c) 
The Citys race-based rejection the test results cannot satisfy the strong-basis-in-evidence standard.  Pp. 2634.  

(i) 
The racial adverse impact this litigation was significant, and petitioners not dispute that the City was faced with primafacie case disparate-impact liability.  The problem for respondentsis that such prima facie caseessentially, threshold showing significant statistical disparity, Connecticut Teal, 457 440, 446, and nothing moreis far from strong basis evidence thatthe City would have been liable under Title VII had certified thetest results.  That because the City could liable for disparateimpact discrimination only the exams issue were not job relatedand consistent with business necessity, there existed equallyvalid, less discriminatory alternative that served the Citys needs but that the City refused adopt.  2000e2(k)(1)(A), (C).  Based the record the parties developed through discovery, there substantial basis evidence that the test was deficient either respect. Pp. 2628.   

(ii) 
The Citys assertions that the exams issue were not job related and consistent with business necessity are blatantly contradicted the record, which demonstrates the detailed steps taken todevelop and administer the tests and the painstaking analyses thequestions asked assure their relevance the captain and lieutenant positions. The testimony also shows that complaints that certainexamination questions were contradictory did not specifically apply firefighting practices the City were fully addressed, and that the City turned blind eye evidence supporting the exams validity.  Pp. 2829.  

(iii) Respondents also lack strong basis evidence showing equally valid, less discriminatory testing alternative that the City, bycertifying the test results, would necessarily have refused adopt.Respondents three arguments the contrary all fail.  First, respondents refer testimony that different composite-score calculationwould have allowed the City consider black candidates for thenopen positions, but they have produced evidence show that thecandidate weighting actually used was indeed arbitrary, that thedifferent weighting would equally valid way determinewhether candidates are qualified for promotions.  Second, respondents argue that the City could have adopted different interpretation its charter provision limiting promotions the highest scoring 
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Syllabus 
applicants, and that the interpretation would have produced less discriminatory results; but respondents approach would have violated Title VIIs prohibition race-based adjustment test results,2000e2(l). Third, testimony asserting that the use assessment center evaluate candidates behavior typical job tasks would have had less adverse impact than written exams does not aidrespondents, contradicted other statements the recordindicating that the City could not have used assessment centers for the exams issue.  Especially when noted that the strong-basisin-evidence standard applies this case, respondents cannot create genuine issue fact based few stray (and contradictory) statements the record. Pp. 2933.
(iv) Fear litigation alone cannot justify the Citys reliance race the detriment individuals who passed the examinations andqualified for promotions.  Discarding the test results was impermissible under Title VII, and summary judgment appropriate for petitioners their disparate-treatment claim.  If, after certifies the test results, the City faces disparate-impact suit, then light todays holding the City can avoid disparate-impact liability based onthe strong basis evidence that, had not certified the results, would have been subject disparate-treatment liability. Pp. 3334. 
530 87, reversed and remanded. 
KENNEDY, J., delivered the opinion the Court, which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined.  SCALIA, J., filed concurring opinion.  ALITO, J., filed concurring opinion, which SCALIA and THOMAS, JJ., joined.  GINSBURG, J., filed dissenting opinion, which STEVENS, SOUTER, and BREYER, JJ., joined. 
Opinion the Court 
NOTICE: This opinion subject formal revision before publication thepreliminary print the United States Reports. Readers are requested tonotify the Reporter Decisions, Supreme Court the United States, Washington, 20543, any typographical other formal errors, orderthat corrections may made before the preliminary print goes press. 

SUPREME COURT THE UNITED STATES 
Nos. 071428 and 08328 
FRANK RICCI, AL., PETITIONERS 071428 JOHN DESTEFANO AL. 
FRANK RICCI, AL., PETITIONERS 08328 JOHN DESTEFANO AL. WRITS CERTIORARI THE UNITED STATES COURT APPEALS FOR THE SECOND CIRCUIT 
[June 29, 2009] 
JUSTICE KENNEDY delivered the opinion the Court. the fire department New Haven, Connecticutasin emergency-service agencies throughout the Nationfirefighters prize their promotion and within the officerranks. agencys officers command respect within the department and the whole community; and, course, added responsibilities command increased salary andbenefits. Aware the intense competition for promotions, New Haven, like many cities, relies objective examinations identify the best qualified candidates. 2003, 118 New Haven firefighters took examinations qualify for promotion the rank lieutenant captain. Promotion examinations New Haven (or City) were infrequent, the stakes were high.  The results would determine which firefighters would considered for promotions during the next two years, and the order which they would considered.  Many firefighters stud
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Opinion the Court 
ied for months, considerable personal and financial cost. 
When the examination results showed that white candidates had outperformed minority candidates, the mayorand other local politicians opened public debate that turned rancorous.  Some firefighters argued the testsshould discarded because the results showed the tests discriminatory. They threatened discriminationlawsuit the City made promotions based the tests.Other firefighters said the exams were neutral and fair.And they, turn, threatened discrimination lawsuit the City, relying the statistical racial disparity, ignoredthe test results and denied promotions the candidateswho had performed well. the end the City took the side those who protested the test results. threw out the examinations. 
Certain white and Hispanic firefighters who likelywould have been promoted based their good test performance sued the City and some its officials. Theirs the suit now before us.  The suit alleges that, discarding the test results, the City and the named officials discriminated against the plaintiffs based their race, inviolation both Title VII the Civil Rights Act 1964, Stat. 253, amended, 2000e seq., and the Equal Protection Clause the Fourteenth Amendment. The City and the officials defended their actions, arguing that they had certified the results, they could have faced liability under Title VII for adopting practice that had disparate impact the minority firefighters. The District Court granted summary judgment for thedefendants, and the Court Appeals affirmed. conclude that race-based action like the Citys thiscase impermissible under Title VII unless the employer can demonstrate strong basis evidence that, had not taken the action, would have been liable under the disparate-impact statute. The respondents, further determine, cannot meet that threshold standard. result, the Citys action discarding the tests was violation Title VII. light our ruling under thestatutes, need not reach the question whether respondents actions may have violated the Equal ProtectionClause. This litigation comes after the parties crossmotions for summary judgment, set out the facts some detail. the District Court noted, although the parties strenuously dispute the relevance and legal import of, and inferences drawn from, many aspects thiscase, the underlying facts are largely undisputed.  554 Supp. 142, 145 (Conn. 2006). When the City New Haven undertook fill vacant lieutenant and captain positions its fire department (Department), the promotion and hiring process was governed the city charter, addition federal and state law. The charter establishes merit system. That systemrequires the City fill vacancies the classified civilservice ranks with the most qualified individuals, determined job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifiesa ranked list applicants who passed the test. Under thecharters rule three, the relevant hiring authoritymust fill each vacancy choosing one candidate from thetop three scorers the list.  Certified promotional lists remain valid for two years. The Citys contract with the New Haven firefighters union specifies additional requirements for the promotion process. Under the contract, applicants for lieutenant and captain positions were screened using written andoral examinations, with the written exam accounting for percent and the oral exam percent applicants 
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Opinion the Court 
total score. sit for the examinations, candidates for lieutenant needed months experience the Department, high-school diploma, and certain vocational training courses. Candidates for captain needed one years service lieutenant the Department, high-school diploma, and certain vocational training courses. 
After reviewing bids from various consultants, the Cityhired Industrial/Organizational Solutions, Inc. (IOS) todevelop and administer the examinations, cost theCity $100,000. IOS Illinois company that specializes designing entry-level and promotional examinations for fire and police departments. order fit the examinations the New Haven Department, IOS began the test-design process performing job analyses 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 fromthose interviews and ride-alongs, IOS wrote job-analysisquestionnaires and administered them most the incumbent battalion chiefs, captains, and lieutenants inthe Department. every stage the job analyses, IOS, deliberate choice, oversampled minority firefighters toensure that the resultswhich IOS would use develop the examinationswould not unintentionally favor whitecandidates. 
With the job-analysis information hand, IOS developed the written examinations measure the candidatesjob-related knowledge. For each test, IOS compiled listof training manuals, Department procedures, and other materials use sources for the test questions.  IOS presented the proposed sources the New Haven firechief and assistant fire chief for their approval.  Then, using the approved sources, IOS drafted multiple-choicetest for each position.  Each test had 100 questions, required CSB rules, and was written below 10thgrade reading level. After IOS prepared the tests, the Cityopened 3-month study period. gave candidates listthat identified the source material for the questions, including the specific chapters from which the questionswere taken. 
IOS developed the oral examinations well.  These concentrated job skills and abilities.  Using the jobanalysis information, IOS wrote hypothetical situations test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would presented with these hypotheticals and asked respond before panel three assessors. 
IOS assembled pool assessors who were superior rank the positions being tested. the Citys insistence (because controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors resumes City officials for approval.  They were battalion chiefs, assistant chiefs,and chiefs from departments similar sizes New Havens throughout the country.  Sixty-six percent the panelists were minorities, and each the nine threemember assessment panels contained two minority members. IOS trained the panelists for several hours the day before administered the examinations, teaching them how score the candidates responses consistentlyusing checklists desired criteria.
Candidates took the examinations November and December 2003. Seventy-seven candidates completed thelieutenant examination43 whites, blacks, and Hispanics. those, candidates passed25 whites, 6blacks, and Hispanics. 554 Supp. 2d, 145.  Eightlieutenant positions were vacant the time the examination. the rule three operated, this meant that the top candidates were eligible for immediate promo
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tion lieutenant. All were white.  Ibid. Subsequentvacancies would have allowed least black candidates considered for promotion lieutenant. 
Forty-one candidates completed the captain examination25 whites, blacks, and Hispanics. those, candidates passed16 whites, blacks, and Hispanics. Ibid.  Seven captain positions were vacant the time the examination. Under the rule three, candidates were eligible for immediate promotion captain7 whites and Hispanics. Ibid. The Citys contract with IOS contemplated that, afterthe examinations, IOS would prepare technical reportthat described the examination processes and methodologies and analyzed the results.  But January 2004, rather than requesting the technical report, City officials, including the Citys counsel, Thomas Ude, convened meeting with IOS Vice President Chad Legel. (Legel wasthe leader the IOS team that developed and administered the tests.) Based the test results, the City officials expressed concern that the tests had discriminatedagainst minority candidates.  Legel defended the examinations validity, stating that any numerical disparity between white and minority candidates was likely due various external factors and was line with results the Departments previous promotional examinations. Several days after the meeting, Ude sent letter theCSB purporting outline its duties with respect the examination results. Ude stated that under federal law, a statistical demonstration disparate impact, standingalone, constitutes sufficiently serious claim racialdiscrimination serve predicate for employerinitiated, voluntar[y] remedieseven race-conscious remedies. App. Pet. for Cert. No. 071428, 443a;see also 554 Supp. 2d, 145 (issue disparate impact 
Opinion the Court 
appears have been raised Ude). The CSB first met consider certifying the results onJanuary 22, 2004.  Tina Burgett, director the CitysDepartment Human Resources, opened the meeting telling the CSB that there significant disparate impact these two exams. App. Pet. for Cert. No. 07 1428, 466a. She distributed lists showing the candidates races and scores (written, oral, and composite) but not their names. Ude also described the test results reflecting a very significant disparate impact, id., 477a, and outlined possible grounds for the CSBsrefusing certify the results. Although they did not know whether they had passed orfailed, some firefighter-candidates spoke the first CSBmeeting favor certifying the test results.  Michael Blatchley stated that [e]very one the questions the written examination came from the [study] material. .[I]f you read the materials and you studied the material, you would have done well the test.  App. No. 064996cv (CA2), pp. A772A773 (hereinafter CA2 App.). Frank Ricci stated that the test questions were based onthe Departments own rules and procedures and nationally recognized materials that represented the accepted standard[s] for firefighting.  Id., A785A786. Ricci stated that had several learning disabilities, including dyslexia; that had spent more than $1,000 topurchase the materials and pay his neighbor read themon tape could give [his] best shot; and that had studied 8 hours day prepare for the test. Id., A786, A789.  I dont even know made it, Ricci told the CSB, [b]ut the people who passed should bepromoted. When your lifes the line, second best may not good enough.  Id., A787A788. Other firefighters spoke against certifying the test 
RICCI DESTEFANO Opinion the Court 
results. They described the test questions outdated not relevant firefighting practices New Haven.  GaryTinney stated that source materials came out New York. Their makeup their city and everything istotally different than ours.  Id., A774A775; see also id., A779, A780A781. And they criticized the testmaterials, full set which cost about $500, for being too expensive and too long. second CSB meeting, February the president the New Haven firefighters union asked the CSB toperform validation study determine whether the tests were job-related. Petitioners counsel this action arguedthat the CSB should certify the results. representativeof the International Association Black Professional Firefighters, Donald Day from neighboring Bridgeport,Connecticut, beseech[ed] the CSB to throw away that test, which described inherently unfair because ofthe racial distribution the results.  Id., A830A831. Another Bridgeport-based representative the association, Ronald Mackey, stated that validation study was necessary. suggested that the City could adjust thetest results meet the criteria having certainamount minorities get elevated the rank Lieutenant and Captain.  Id., A838. the end this meeting, the CSB members agreed ask IOS send representative explain how had developed and administered the examinations.  They also discussed asking panel experts review the examinations and advise the CSB whether certify the results. third meeting, February 11, Legel addressed theCSB behalf IOS.  Legel stated that IOS had previously prepared entry-level firefighter examinations for the 
City but not promotional examination. explainedthat IOS had developed examinations for departments incommunities with demographics similar New Havens,including Orange County, Florida; Lansing, Michigan; and San Jose, California. 
Legel explained the exam-development process theCSB. began describing the job analyses IOS performed the captain and lieutenant positionsthe interviews, ride-alongs, and questionnaires IOS designed generate list tasks, knowledge, skills and abilities that are considered essential performance the jobs. Id., A931A932. outlined how IOS prepared the written and oral examinations, based the job-analysis results, test most heavily those qualities that the results indicated were critica[l] essentia[l].  Id., A931. And 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 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 that each threemember assessment panel included one white, one black, and one Hispanic member.
Near the end his remarks, Legel implor[ed] anyone that had concerns review the content the exam. professional opinion, its facially neutral.  Theres nothing those examinations that should cause somebody think that one group would perform differently than another group. Id., A961. the next meeting, March 11, the CSB heard fromthree witnesses had selected tell little bit about their views the testing, the process, [and] the methodol
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ogy. Id., A1020.  The first, Christopher Hornick, spoke the CSB telephone. Hornick industrial/organizational psychologist from Texas who operates consulting business that direct[ly] competes with IOS. Id., A1029. Hornick, who had not stud[ied] the test length detail and had not seen the job analysisdata, told the CSB that the scores indicated relativelyhigh adverse impact. Id., A1028, A1030, A1043. stated that [n]ormally, whites outperform ethnic minorities the majority standardized testing procedures, but that was a little surprised the disparity thecandidates scoresalthough [s]ome fairly typical what weve seen other areas the countr[y] andother tests. Id., A1028A1029.  Hornick stated that the adverse impact the written exam was somewhathigher but generally the range that weve seen professionally. Id., A1030A1031. 
When asked explain the New Haven test results,Hornick opined the telephone conversation that the collective-bargaining agreements requirement using written and oral examinations with 60/40 composite score might account for the statistical disparity. also stated that [b]y not having anyone from within the[D]epartment review the tests before they were administereda limitation the City had imposed protect thesecurity the exam questionsyou inevitably get thingsin there that are based the source materials but are not relevant New Haven.  Id., A1034A1035.  Hornick suggested that testing candidates assessment center rather than using written and oral examinationsmight serve [the Citys] needs better.  Id., A1039 A1040. Hornick stated that assessment centers, where candidates face real-world situations and respond just asthey would the field, allow candidates to demonstrate how they would address particular problem opposedto just verbally saying identifying the correct option 
Opinion the Court written test.  Ibid. 
Hornick made clear that was not suggesting that[IOS] somehow created test that had adverse impactsthat should not have had.  Id., A1038. described the IOS examinations reasonably good test[s].  Id., A1041. stated that the CSBs best option might certify the list exists and work change the process for future tests, including [r]ewriting the Civil Service Rules.  Ibid.  Hornick concluded his telephonicremarks telling the CSB that for the future, his company certainly would like help you can.  Id., A1046. 
The second witness was Vincent Lewis, fire programspecialist for the Department Homeland Security and aretired fire captain from Michigan.  Lewis, who black, had looked extensively the lieutenant exam and alittle less extensively the captain exam. stated that the candidates should know that material.  Id., A1048, A1052. Lewiss view, the questions were relevant for both exams, and the New Haven candidates had advantage because the study materials identified theparticular book chapters from which the questions were taken. other departments, contrast, you had know basically the entire book.  Id., A1053.  Lewis concluded that any disparate impact likely was due apattern that usually whites outperform some the minorities testing, that more whites take the exam. Id., A1054. 
The final witness was Janet Helms, professor Boston College whose primary area expertise not withfirefighters per se but race and culture they influence performance tests and other assessment procedures. Id., A1060.  Helms expressly declined the CSBsoffer review the examinations. the outset, she noted that regardless what kind written test give inthis country can just about predict how many peo
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ple will pass who are members under-represented groups. And your data are not that inconsistent with what predictions would say were the case. Id., A1061. Helms nevertheless offered several ideas about what might possible factors explain statistical differencesin the results. Id., A1062.  She concluded that because percent the respondents the job-analysis questionnaires were white, the test questions might have favoredwhite candidates, because most the literature firefighters shows that the different groups perform the jobdifferently. Id., A1063. Helms closed stating thatno matter what test the City had administered, would have revealed a disparity between blacks and whites,Hispanics and whites, particularly written test.  Id., A1072. the final CSB meeting, March 18, Ude (the Cityscounsel) argued against certifying the examination results. Discussing the Citys obligations under federal law, Ude advised the CSB that finding adverse impact isthe beginning, not the end, review testing procedures determine whether they violated the disparateimpact provision Title VII.  Ude focused the CSB determining whether there are other ways test for .those positions that are equally valid with less adverse impact. Id., A1101.  Ude described Hornick having said that the written examination had one the most severe adverse impacts that had seen and that thereare much better alternatives identifying [firefighting]skills. Ibid.  Ude offered his opinion that promotions result these tests would not consistent with federal law, would not consistent with the purposes ofour Civil Service Rules our Charter[,] nor thebest interests the firefighters who took the exams. Id., A1103A1104. stated that previous Department 
Opinion the Court 
exams have not had this kind result, and that previous results had not been challenged having adverse impact, whereas are assured that these will be. Id., A1107, A1108. 
CSB Chairman Segaloff asked Ude several questionsabout the Title VII disparate-impact standard. 
CHAIRPERSON SEGALOFF: [M]y understanding the group that making throw the exam out has the burden showing that there out there exam that reasonably probable likely have lessof adverse impact. Its not our burden show that theres exam out there that can better.  Weve got exam. Weve got result.
MR. UDE: Mr. Chair, point out that Dr. Hornick said that. said that there are other tests out there that would have less adverse impact and that [would] more valid. 
CHAIRPERSON SEGALOFF: You think thats enough for throw this test upside-down because Dr. Hornick said it? 
MR. UDE: think that itself would sufficient. Yes. also would point out that the employers burden justify the use the examination. Id., A1108A1109. 
Karen DuBois-Walton, the Citys chief administrativeofficer, spoke behalf Mayor John DeStefano and argued against certifying the results.  DuBois-Walton stated that the results, when considered under the rule three and applied then-existing captain and lieutenant vacancies, created situation which black and Hispanic candidates were disproportionately excluded from opportunity.  DuBois-Walton also relied Hornicks testimony, asserting that Hornick made extremely clear that there are more appropriate ways assess ones ability toserve captain lieutenant. Id., A1120. 
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Burgett (the human resources director) asked the CSBto discard the examination results.  She, too, relied Hornicks statement show the existence alternative testing methods, describing Hornick having started point out that alternative testing does exist and having begun suggest that there are some different ways ofdoing written examinations.  Id., A1125, A1128. 
Other witnesses addressed the CSB.  They included thepresident the New Haven firefighters union, who supported certification. reminded the CSB that Hornick also concluded that the tests were reasonable and fair and under the current structure certify them.  Id., A1137. Firefighter Frank Ricci again argued for certification; stated that although assessment centers somecases show less adverse impact, id., A1140, they werenot available alternatives for the current round promotions. would take several years, Ricci explained, for the Department develop assessment-center protocol and the accompanying training materials. Id., A1141. Lieutenant Matthew Marcarelli, who had taken the captains exam, spoke favor certification. the close witness testimony, the CSB voted motion certify the examinations.  With one member recused, the CSB deadlocked resulting decision not certify the results. Explaining his vote certify the results, Chairman Segaloff stated that nobody convincedme that can feel comfortable that, fact, theres some likelihood that theres going exam designed thatsgoing less discriminatory. Id., A1159A1160. The CSBs decision not certify the examination results led this lawsuit. The plaintiffswho are the petitioners hereare white firefighters and Hispanic firefighter who passed the examinations but were denied chance promotions when the CSB refused certify the 
test results. They include the named plaintiff, Frank Ricci, who addressed the CSB multiple meetings. 
Petitioners sued the City, Mayor DeStefano, DuBois-Walton, Ude, Burgett, and the two CSB members whovoted against certification.  Petitioners also named defendant Boise Kimber, New Haven resident who voiced strong opposition certifying the results.  Those individuals are respondents this Court. Petitioners filed suit under Rev. Stat. 1979 and 1980, C.1983 and 1985, alleging that respondents, arguing orvoting against certifying the results, violated and conspired violate the Equal Protection Clause the Fourteenth Amendment. Petitioners also filed timely chargesof discrimination with the Equal Employment Opportunity Commission (EEOC); upon the EEOCs issuing rightto-sue letters, petitioners amended their complaint toassert that the City violated the disparate-treatmentprohibition contained Title VII the Civil Rights Act of1964, amended.  See 2000e2(a). 
The parties filed cross-motions for summary judgment. Respondents asserted they had good-faith belief that they would have violated the disparate-impact prohibition Title VII, 2000e2(k), had they certified the examination results. follows, they maintained, that they cannot held liable under Title VIIs disparate-treatment provision for attempting comply with Title VIIs disparateimpact bar.  Petitioners countered that respondents goodfaith belief was not valid defense allegations disparate treatment and unconstitutional discrimination. 
The District Court granted summary judgment for respondents. 554 Supp. 142. described petitioners argument boil[ing] down the assertion that if[respondents] cannot prove that the disparities the Lieutenant and Captain exams were due particular flaw inherent those exams, then they should have certified the results because there was other alterna
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tive place. Id., 156.  The District Court concluded that, [n]otwithstanding the shortcomings the evidenceon existing, effective alternatives, not the case that[respondents] must certify test where they cannot pinpoint its deficiency explaining its disparate impact simply because they have not yet formulated betterselection method. Ibid. also ruled that respondents motivation avoid making promotions based testwith racially disparate impact does not, matter law, constitute discriminatory intent under Title VII. Id., 160. The District Court rejected petitioners equal protection claim the theory that respondents had not acted because discriminatory animus toward petitioners. Id., 162. concluded that respondents actions were not based 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., 161. 
After full briefing and argument the parties, the Court Appeals affirmed one-paragraph, unpublished summary order; later withdrew that order, issuing its place nearly identical, one-paragraph per curiam opinion adopting the District Courts reasoning.530 (CA2 2008).  Three days later, the Court Appeals voted deny rehearing banc, over written dissents Chief Judge Jacobs and Judge Cabranes.530 88. 
This action presents two provisions Title VII beinterpreted and reconciled, with few, any, precedents the courts appeals discussing the issue.  Depending onthe resolution the statutory claim, fundamental constitutional question could also arise. found prudent and appropriate grant certiorari. 555 ___ (2009). now reverse. 
Cite as: 557 ____ (2009) 
Opinion the Court 

Petitioners raise statutory claim, under the disparatetreatment prohibition Title VII, and constitutional claim, under the Equal Protection Clause the Fourteenth Amendment. decision for petitioners their statutory claim would provide the relief sought, consider first.  See Atkins Parker, 472 115, 123 (1985); Escambia County McMillan, 466 48, (1984) (per curiam) ([N]ormally the Court will not decide constitutional question there some other groundupon which dispose the case). Title VII the Civil Rights Act 1964, C.2000e seq., amended, prohibits employment discrimination the basis race, color, religion, sex, ornational origin. Title VII prohibits both intentional discrimination (known disparate treatment) well as, some cases, practices that are not intended discriminate but fact have disproportionately adverse effect minorities (known disparate impact). enacted 1964, Title VIIs principal nondiscrimination provision held employers liable only for disparate treatment. That section retains its original wording today. makes unlawful for employer to fail refuseto hire discharge any individual, otherwise todiscriminate against any individual with respect his compensation, terms, conditions, privileges employment, because such individuals race, color, religion, sex,or national origin.  2000e2(a)(1); see also Stat. 255. Disparate-treatment cases present the most easily understood type discrimination, Teamsters United States, 431 324, 335, (1977), and occur where employer has treated [a] particular person less favorablythan others because of protected trait.  Watson Fort Worth Bank Trust, 487 977, 985986 (1988). 
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Opinion the Court 
disparate-treatment plaintiff must establish that the defendant had discriminatory intent motive fortaking job-related action.  Id., 986. 
The Civil Rights Act 1964 did not include expressprohibition policies practices that produce disparate impact.  But Griggs Duke Power Co., 401 424 (1971), the Court interpreted the Act prohibit, some cases, employers facially neutral practices that, infact, are discriminatory operation. Id., 431. The Griggs Court stated that the touchstone for disparateimpact liability the lack business necessity: If employment practice which operates exclude [minorities] cannot shown related job performance, thepractice prohibited.  Ibid.; see also id., 432 (employers burden demonstrate that practice has a manifest relationship the employment question); Albemarle Paper Co. Moody, 422 405, 425 (1975). Under those precedents, employer met its burden showing that its practice was job-related, the plaintiff was required show legitimate alternative that would have resulted less discrimination. Ibid. (allowing complaining party show that other tests selection devices,without similarly undesirable racial effect, would also serve the employers legitimate interest).
 Twenty years after Griggs, the Civil Rights Act 1991, 105 Stat. 1071, was enacted.  The Act included provision codifying the prohibition disparate-impact discrimination. That provision now force along with the disparate-treatment section already noted.  Under the disparate-impact statute, plaintiff establishes prima facie violation showing that employer uses a particular employment practice that causes disparate impact onthe basis race, color, religion, sex, national origin. 2000e2(k)(1)(A)(i). employer may defendagainst liability demonstrating that the practice job related for the position question and consistent with business necessity.  Ibid.  Even the employer meetsthat burden, however, plaintiff may still succeed showing that the employer refuses adopt availablealternative employment practice that has less disparateimpact and serves the employers legitimate needs. 2000e2(k)(1)(A)(ii) and (C). Petitioners allege that when the CSB refused certifythe captain and lieutenant exam results based the raceof the successful candidates, discriminated against themin violation Title VIIs disparate-treatment provision. The City counters that its decision was permissible because the tests appear[ed] violate Title VIIs disparateimpact provisions. Brief for Respondents 12.Our analysis begins with this premise: The Citys actions would violate the disparate-treatment prohibition ofTitle VII absent some valid defense.  All the evidence demonstrates that the City chose not certify the examination results because the statistical disparity based racei.e., how minority candidates had performed whencompared white candidates. the District Court put it, the City rejected the test results because too many whites and not enough minorities would promoted werethe lists certified. 554 Supp. 2d, 152; see also ibid. (respondents own arguments show that the Citys reasons for advocating non-certification were related the racial distribution the results). Without some other justification, this express, race-based decisionmaking violates Title VIIs command that employerscannot take adverse employment actions because anindividuals race. See 2000e2(a)(1).The District Court did not adhere this principle,however. held that respondents motivation avoid making promotions based test with racially disparate impact does not, matter law, constitute 
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discriminatory intent. 554 Supp. 2d, 160.  And the Government makes similar argument this Court. contends that the structure Title VII belies any claim that employers intent comply with Title VIIs disparate-impact provisions constitutes prohibited discrimination the basis race. Brief for United States Amicus Curiae 11. But both those statements turn upon the Citys objectiveavoiding disparate-impactliabilitywhile ignoring the Citys conduct the name reaching that objective. Whatever the Citys ultimateaimhowever well intentioned benevolent mighthave seemedthe City made its employment decisionbecause race.  The City rejected the test results solelybecause the higher scoring candidates were white.  The question not whether that conduct was discriminatory but whether the City had lawful justification for its racebased action. consider, therefore, whether the purpose avoid disparate-impact liability excuses what otherwise would prohibited disparate-treatment discrimination.  Courts often confront cases which statutes and principles point different directions. Our task provide guidance toemployers and courts for situations when these two prohibitions could conflict absent rule reconcile them. providing this guidance our decision must consistent with the important purpose Title VIIthat the workplace environment free discrimination, where race not barrier opportunity.
With these principles mind, turn the parties proposed means reconciling the statutory provisions. Petitioners take strict approach, arguing that under Title VII, cannot permissible for employer takerace-based adverse employment actions order avoiddisparate-impact liabilityeven the employer knows its practice violates the disparate-impact provision.  See Brief for Petitioners 43. Petitioners would have hold that, under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination.  That assertion, however, ignores the fact that, codifying the disparateimpact provision 1991, Congress has expressly prohibited both types discrimination. must interpret thestatute give effect both provisions where possible. See, e.g., United States Atlantic Research Corp., 551 128, 137 (2007) (rejecting interpretation that would render statutory provision a dead letter). cannot accept petitioners broad and inflexible formulation. 
Petitioners next suggest that employer fact mustbe violation the disparate-impact provision before can use compliance defense disparate-treatment suit. Again, this overly simplistic and too restrictive Title VIIs purpose. The rule petitioners offer would run counter what have recognized Congresss intent that voluntary compliance the preferred means achieving the objectives Title VII. Firefighters Cleveland, 478 501, 515 (1986); see also Wygant Jackson Bd. Ed., 476 267, 290 (1986) (OConnor, J.,concurring part and concurring judgment).  Forbidding employers act unless they know, with certainty, that practice violates the disparate-impact provisionwould bring compliance efforts near standstill.  Even the limited situations when this restricted standard could met, employers likely would hesitate before taking voluntary action for fear later being proven wrong inthe course litigation and then held account for disparate treatment. the opposite end the spectrum, respondents and the Government assert that employers good-faith belief that its actions are necessary comply with Title VIIs disparate-impact provision should enough justify race-conscious conduct. But the original, foundational prohibition Title VII bars employers from taking
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Opinion the Court 
verse action because race.  2000e2(a)(1).  And when Congress codified the disparate-impact provision 1991, made exception disparate-treatment liability for actions taken good-faith effort comply with thenew, disparate-impact provision subsection (k). Allowing employers violate the disparate-treatment prohibition based mere good-faith fear disparate-impact liability would encourage race-based action the slightest hint disparate impact. minimal standard could cause employers discard the results lawful and beneficialpromotional examinations even where there little any evidence disparate-impact discrimination.  That would amount facto quota system, which focus onstatistics could put undue pressure employers adopt inappropriate prophylactic measures.  Watson, 487 S., 992 (plurality opinion). Even worse, employer could discard test results (or other employment practices)with the intent obtaining the employers preferred racial balance. That operational principle could not justified,for Title VII express disclaiming any interpretation ofits requirements calling for outright racial balancing. 2000e2(j).  The purpose Title VII is promote hiring the basis job qualifications, rather than the basis race color. Griggs, 401 S., 434. searching for standard that strikes more appropriate balance, note that this Court has considered cases similar this one, albeit the context the EqualProtection Clause the Fourteenth Amendment.  The Court has held that certain government actions remedypast racial discriminationactions that are themselves based raceare constitutional only where there strong basis evidence that the remedial actions were necessary. Richmond Croson Co., 488 469, 500 (1989) (quoting Wygant, supra, 277 (plurality opinion)). This suit does not call consider whether the statutory constraints under Title VII must parallel 
Opinion the Court 
all respects those under the Constitution.  That does not mean the constitutional authorities are irrelevant, however. Our cases discussing constitutional principles can provide helpful guidance this statutory context.  See Watson, supra, 993 (plurality opinion). 
Writing for plurality Wygant and announcing thestrong-basis-in-evidence standard, Justice Powell recognized the tension between eliminating segregation and discrimination the one hand and doing away with all governmentally imposed discrimination based race the other.  476 S., 277.  The plurality stated that those related constitutional duties are not always harmonious, and that reconciling them requires employersto act with extraordinary care.  Ibid.  The plurality required strong basis evidence because [e]videntiary support for the conclusion that remedial action warranted becomes crucial when the remedial program challenged court nonminority employees.  Ibid.  The Court applied the same standard Croson, observing thatan amorphous claim that there has been past discrimination cannot justify the use unyielding racialquota. 488 S., 499. 
The same interests are work the interplay betweenthe disparate-treatment and disparate-impact provisions Title VII. Congress has imposed liability employersfor unintentional discrimination order rid the workplace practices that are fair form, but discriminatoryin operation. Griggs, supra, 431.  But has also prohibited employers from taking adverse employment actions because of race. 2000e2(a)(1).  Applying thestrong-basis-in-evidence standard Title VII gives effectto both the disparate-treatment and disparate-impact provisions, allowing violations one the name compliance with the other only certain, narrow circumstances. The standard leaves ample room for employers voluntary compliance efforts, which are essential the 
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Opinion the Court 
statutory scheme and Congresss efforts eradicateworkplace discrimination. See Firefighters, supra, 515. And the standard appropriately constrains employersdiscretion making race-based decisions: limits that discretion cases which there strong basis inevidence disparate-impact liability, but not sorestrictive that allows employers act only when thereis provable, actual violation.
Resolving the statutory conflict this way allows thedisparate-impact prohibition work manner that isconsistent with other provisions Title VII, including the prohibition adjusting employment-related test scores the basis race. See 2000e2(l). Examinations like those administered the City create legitimate expectations the part those who took the tests. the case with any promotion exam, some the firefightershere invested substantial time, money, and personal commitment preparing for the tests.  Employment tests can important part neutral selection systemthat safeguards against the very racial animosities Title VII was intended prevent.  Here, however, the firefighters saw their efforts invalidated the City sole reliance upon race-based statistics. employer cannot rescore test based the candidates race, 2000e2(l), then follows fortiori that may not take the greater step discarding the test altogether achieve more desirable racial distribution ofpromotion-eligible candidatesabsent strong basis inevidence that the test was deficient and that discardingthe results necessary avoid violating the disparateimpact provision.  Restricting employers ability todiscard test results (and thereby discriminate against qualified candidates the basis their race) also keeping with Title VIIs express protection bona fidepromotional examinations. See 2000e2(h) ([N]or shall unlawful employment practice for employer 
Opinion the Court 
give and act upon the results any professionallydeveloped ability test provided that such test, its administration action upon the results not designed, intended used discriminate because race); cf. ATT Corp. Hulteen, 556 ___, ___ (2009) (slip op., 8). 
For the foregoing reasons, adopt the strong-basis-inevidence standard matter statutory construction toresolve any conflict between the disparate-treatment anddisparate-impact provisions Title VII. 
Our statutory holding does not address the constitutionality the measures taken here purported compliance with Title VII. also not hold that meeting thestrong-basis-in-evidence standard would satisfy the EqualProtection Clause future case. explain below,because respondents have not met their burden underTitle VII, need not decide whether legitimate fear disparate impact ever sufficient justify discriminatorytreatment under the Constitution. 
Nor question employers affirmative efforts toensure that all groups have fair opportunity apply forpromotions and participate the process which promotions will made. But once that process has beenestablished and employers have made clear their selectioncriteria, they may not then invalidate the test results, thus upsetting employees legitimate expectation not tobe judged the basis race.  Doing so, absent strong basis evidence impermissible disparate impact, amounts the sort racial preference that Congress has disclaimed, 2000e2(j), and antithetical the notion workplace where individuals are guaranteed equal opportunity regardless race. 
Title VII does not prohibit employer from considering, before administering test practice, how designthat test practice order provide fair opportunityfor all individuals, regardless their race. And when, during the test-design stage, employer invites com
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ments ensure the test fair, that process can provide common ground for open discussions toward that end. hold only that, under Title VII, before employer can engage intentional discrimination for the assertedpurpose avoiding remedying unintentional disparate impact, the employer must have strong basis inevidence believe will subject disparate-impact liability fails take the race-conscious, discriminatory action. The City argues that, even under the strong-basis-inevidence standard, its decision discard the examination results was permissible under Title VII. That incorrect. Even respondents were motivated subjective matter desire avoid committing disparate-impact discrimination, the record makes clear there support for the conclusion that respondents had objective, strong basis evidence find the tests inadequate, with someconsequent disparate-impact liability violation Title 
VII. this basis, conclude that petitioners have mettheir obligation demonstrate that there no genuine issue any material fact and that they are entitled tojudgment matter law.  Fed. Rule Civ. Proc. 56(c).On motion for summary judgment, facts must viewed the light most favorable the nonmoving party only ifthere genuine dispute those facts. Scott Harris, 550 372, 380 (2007).  Where the record taken whole could not lead rational trier fact find for the nonmoving party, there genuine issue for trial. Matsushita Elec. Industrial Co. Zenith Radio Corp., 475 574, 587 (1986) (internal quotation marksomitted). this Court, the Citys only defense that itacted comply with Title VIIs disparate-impact provision. succeed their motion, then, petitioners must 
Opinion the Court 
demonstrate that there can genuine dispute that there was strong basis evidence for the City conclude would face disparate-impact liability certified the examination results. See Celotex Corp. Catrett, 477 317, 324 (1986) (where the nonmoving party willbear the burden proof trial dispositive issue, the nonmoving party bears the burden production underRule designate specific facts showing that there genuine issue for trial (internal quotation marks omitted)).
The racial adverse impact here was significant, andpetitioners not dispute that the City was faced with aprima facie case disparate-impact liability. the captain exam, the pass rate for white candidates was 64percent but was 37.5 percent for both black and Hispanic candidates. the lieutenant exam, the pass rate forwhite candidates was 58.1 percent; for black candidates,
31.6 percent; and for Hispanic candidates, percent.  The pass rates minorities, which were approximately onehalf the pass rates for white candidates, fall well below the80-percent standard set the EEOC implement the disparate-impact provision Title VII. See CFR 1607.4(D) (2008) (selection rate that less than percent of the rate for the group with the highest rate will generally regarded the Federal enforcement agencies evidence adverse impact); Watson, 487 S., 995996, (plurality opinion) (EEOCs 80-percent standard a rule thumb for the courts).  Based how the passing candidates ranked and application the rule three, certifying the examinations would havemeant that the City could not have considered black candidates for any the then-vacant lieutenant captain positions.
Based the degree adverse impact reflected theresults, respondents were compelled take hard look atthe examinations determine whether certifying the 
 RICCI DESTEFANO Opinion the Court 
results would have had impermissible disparate impact. The problem for respondents that prima facie case disparate-impact liabilityessentially, threshold showing significant statistical disparity, Connecticut Teal, 457 440, 446 (1982), and nothing moreisfar from strong basis evidence that the City wouldhave been liable under Title VII had certified the results. That because the City could liable for disparate-impact discrimination only the examinations werenot job related and consistent with business necessity, there existed equally valid, less-discriminatory alternative that served the Citys needs but that the City refusedto adopt. 2000e2(k)(1)(A), (C). conclude there strong basis evidence establish that the test wasdeficient either these respects. address each the two points turn, based the record developed bythe parties through discoverya record that concentratesin substantial part the statements various witnesses made the CSB. There genuine dispute that the examinations were job-related and consistent with business necessity.  The Citys assertions the contrary are blatantly contradicted the record. Scott, supra, 380.  The CSB heard statements from Chad Legel (the IOS vice president) well city officials outlining the detailed stepsIOS took develop and administer the examinations.IOS devised the written examinations, which were the focus the CSBs inquiry, after painstaking analyses the captain and lieutenant positionsanalyses whichIOS made sure that minorities were overrepresented.  And IOS drew the questions from source material approved bythe Department. the outside witnesses who appearedbefore the CSB, only one, Vincent Lewis, had reviewed the examinations any detail, and was the only one with 
Opinion the Court 
any firefighting experience.  Lewis stated that the questions were relevant for both exams. CA2 App. A1053. The only other witness who had seen any part the examinations, Christopher Hornick competitor IOSs),criticized the fact that one within the Department hadreviewed the testsa condition imposed the City protect the integrity the exams light past alleged security breaches.  But Hornick stated that the exams appea[r] reasonably good and recommended that the CSB certify the results.  Id., A1041. 
Arguing that the examinations were not job-related, respondents note some candidates complaints that certainexamination questions were contradictory did not specifically apply firefighting practices New Haven.  But Legel told the CSB that IOS had addressed those concernsthat entertained a handful challenges the validity particular examination questions, that reviewed those challenges and provided feedback [to theCity] what thought the best course action was, and that could remember least one question IOS had thrown out (offer[ing] credit everybody for that particular question). Id., A955A957.  For his part, Hornick said suspect[ed] that some the criticisms [leveled] candidates were not valid.  Id., A1035. 
The City, moreover, turned blind eye evidence thatsupported the exams validity.  Although the Citys contract with IOS contemplated that IOS would prepare atechnical report consistent with EEOC guidelines forexamination-validity studies, the City made request for its report. After the January 2004 meeting between Legel and some the city-official respondents, which Legeldefended the examinations, the City sought furtherinformation from IOS, save its appearance CSB meeting explain how developed and administered theexaminations. IOS stood ready provide respondents with detailed information establish the validity the 
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Opinion the Court 
exams, but respondents did not accept that offer. Respondents also lacked strong basis evidence equally valid, less-discriminatory testing alternative that the City, certifying the examination results, would necessarily have refused adopt. Respondents raisethree arguments the contrary, but each argument fails.First, respondents refer testimony before the CSB that different composite-score calculationweighting the written and oral examination scores 30/70would haveallowed the City consider two black candidates for thenopen lieutenant positions and one black candidate forthen-open captain positions.  (The City used 60/40 weighting required its contract with the New Haven firefighters union.) But respondents have produced noevidence show that the 60/40 weighting was indeedarbitrary. fact, because that formula was the result union-negotiated collective-bargaining agreement, presume the parties negotiated that weighting for rational reason. Nor does the record contain any evidencethat the 30/70 weighting would equally valid way todetermine whether candidates possess the proper mix ofjob knowledge and situational skills earn promotions. Changing the weighting formula, moreover, could wellhave violated Title VIIs prohibition altering test scoreson the basis race. See 2000e2(l). this record, there basis conclude that 30/70 weighting was equally valid alternative the City could have adopted.Second, respondents argue that the City could haveadopted different interpretation the rule threethat would have produced less discriminatory results.  The rule, the New Haven city charter, requires the City promote only from those applicants with the three highest scores promotional examination.  New Haven, Conn., Code Ordinances, Tit. Art. XXX, 160 (1992). 
Opinion the Court state court has interpreted the charter prohibit socalled bandingthe Citys previous practice rounding scores the nearest whole number and considering all candidates with the same whole-number score being one rank.  Banding allowed the City consider three ranks candidates (with the possibility multiple candidates filling each rank) for purposes the rule three. See Kelly New Haven, No. CV000444614, 2004 114377, (Conn. Super. Ct., Jan. 2004). Respondents claim that employing banding here would have made four black and one Hispanic candidates eligible for then-open lieutenant and captain positions. state courts prohibition banding, matter municipal law under the charter, may not eliminate banding valid alternative under Title VII.  See 2000e7. need not resolve that point, however.  Here, banding was not valid alternative for this reason: Had the City reviewed the exam results and then adoptedbanding make the minority test scores appear higher, itwould have violated Title VIIs prohibition adjusting test results the basis race.  2000e2(l); see also Chicago Firefighters Local Chicago, 249 649, 656 (CA7 2001) (Posner, J.) (We have doubt that banding were adopted order make lower black scores seemhigher, would indeed forbidden). matter law, banding was not alternative available the Citywhen was considering whether certify the examination results. 
Third, and finally, respondents refer statements byHornick his telephone interview with the CSB regarding alternatives the written examinations. Hornick stated his belie[f] that assessment center process, which would have evaluated candidates behavior typical job tasks, would have demonstrated less adverseimpact. CA2 App. A1039.  But Hornicks brief mention alternative testing methods, standing alone, does not raise 
 RICCI DESTEFANO Opinion the Court genuine issue material fact that assessment centerswere available the City the time the examinationsand that they would have produced less adverse impact.Other statements the CSB indicated that the Department could not have used assessment centers for the 2003 examinations. Supra, 14.  And although respondents later argued the CSB that Hornick had pushed the Cityto reject the test results, supra, 1517, the truth that the essence Hornicks remarks supported its certifyingthe test results. See Scott, 550 S., 380.  Hornick stated that adverse impact standardized testing hasbeen existence since the beginning testing, CA2 App. A1037, and that the disparity New Havens test results was somewhat higher but generally the range that weve seen professionally.  Id., A1030A1031. told the CSB was not suggesting that IOS somehowcreated test that had adverse impacts that should not have had. Id., A1038.  And suggested that the CSB should certify the list exists. Id., A1041. 
Especially when noted that the strong-basis-inevidence standard applies, respondents cannot create agenuine issue fact based few stray (and contradictory) statements the record.  And there doubt respondents fall short the mark relying entirely onisolated statements Hornick. Hornick had not stud[ied] the test length detail.  Id., A1030. And told the CSB, direct competitor ofIOSs. Id., A1029. The remainder his remarks showed that Hornicks primary concernsomewhat thefrustration CSB memberswas marketing his services for the future, not commenting the results the tests the City had already administered. See, e.g., id., A1026, A1027, A1032, A1036, A1040, A1041. Hornicks hinting had its intended effect: The City has since hiredhim consultant. for the other outside witnesses who spoke the CSB, Vincent Lewis (the retired fire 
Opinion the Court 
captain) thought the CSB should certify the test results.And Janet Helms (the Boston College professor) declined review the examinations and told the CSB that, society, we need develop new way assessing people. Id., A1073.  That task was beyond the reach the CSB, which was concerned with the adequacy the testresults before it. the record before us, there genuine dispute thatthe City lacked strong basis evidence believe would face disparate-impact liability certified theexamination results. other words, there evidence let alone the required strong basis evidencethat thetests were flawed because they were not job-related orbecause other, equally valid and less discriminatory testswere available the City. Fear litigation alone cannotjustify employers reliance race the detriment individuals who passed the examinations and qualified forpromotions.  The Citys discarding the test results was impermissible under Title VII, and summary judgment isappropriate for petitioners their disparate-treatmentclaim. 
*** The record this litigation documents process that, atthe outset, had the potential produce testing procedure that was true the promise Title VII: individual should face workplace discrimination based race. Respondents thought about promotion qualifications and relevant experience neutral ways.  They were careful ensure broad racial participation the design the testitself and its administration. have discussed length, the process was open and fair.The problem, course, that after the tests werecompleted, the raw racial results became the predominant 
 RICCI DESTEFANO Opinion the Court 
rationale for the Citys refusal certify the results.  The injury arises part from the high, and justified, expectations the candidates who had participated the testingprocess the terms the City had established for the promotional process. Many the candidates had studied for months, considerable personal and financial expense, and thus the injury caused the Citys reliance onraw racial statistics the end the process was all the more severe. Confronted with arguments both for and against certifying the test resultsand threats lawsuit either waythe City was required make difficultinquiry. But its hearings produced strong evidence disparate-impact violation, and the City was not entitled disregard the tests based solely the racial disparityin the results. 
Our holding today clarifies how Title VII applies resolve competing expectations under the disparatetreatment and disparate-impact provisions. If, after certifies the test results, the City faces disparate-impactsuit, then light our holding today should clear that the City would avoid disparate-impact liability based the strong basis evidence that, had not certified the results, would have been subject disparatetreatment liability.
Petitioners are entitled summary judgment theirTitle VII claim, and therefore need not decide the underlying constitutional question. The judgment theCourt Appeals reversed, and the cases are remanded for further proceedings consistent with this opinion. ordered. 
SCALIA, J., concurring 

SUPREME COURT THE UNITED STATES 
Nos. 071428 and 08328 
FRANK RICCI, AL., PETITIONERS 071428 JOHN DESTEFANO AL. 
FRANK RICCI, AL., PETITIONERS 08328 JOHN DESTEFANO AL. WRITS CERTIORARI THE UNITED STATES COURT APPEALS FOR THE SECOND CIRCUIT 
[June 29, 2009] 
JUSTICE SCALIA, concurring. join the Courts opinion full, but write separately toobserve that its resolution this dispute merely postpones the evil day which the Court will have confrontthe question: Whether, what extent, are the disparate-impact provisions Title VII the Civil Rights Act 1964 consistent with the Constitutions guarantee equal protection? The question not easy one. See generally Primus, Equal Protection and Disparate Impact:Round Three, 117 Harv. Rev. 493 (2003). 
The difficulty this: Whether not Title VIIs disparate-treatment provisions forbid remedial race-basedactions when disparate-impact violation would not otherwise resultthe question resolved the Court todayit clear that Title VII not only permits but affirmatively requires such actions when disparate-impact violation would otherwise result.  See ante, 2021.  But the Federal Government prohibited from discriminating onthe basis race, Bolling Sharpe, 347 497, 500 (1954), then surely also prohibited from enacting laws 
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SCALIA, J., concurring 
mandating that third partiese.g., employers, whetherprivate, State, municipaldiscriminate the basis race. See Buchanan Warley, 245 60, 7882 (1917).As the facts these cases illustrate, Title VIIs disparateimpact provisions place racial thumb the scales, oftenrequiring employers evaluate the racial outcomes oftheir policies, and make decisions based (because of) those racial outcomes. That type racial decisionmakingis, the Court explains, discriminatory.  See ante, 19; Personnel Administrator Mass. Feeney, 442 256, 279 (1979). sure, the disparate-impact laws not mandateimposition quotas, but not clear why that shouldprovide safe harbor.  Would private employer not guilty unlawful discrimination refrained fromestablishing racial hiring quota but intentionally designed his hiring practices achieve the same end? Surely would.  Intentional discrimination still occurring, just one step the chain.  Government compulsionof such design would therefore seemingly violate equal protection principles.  Nor would matter that Title VII requires consideration race wholesale, rather thanretail, level. [T]he Government must treat citizens individuals, not simply components racial, religious, sexual national class. Miller Johnson, 515 900, 911 (1995) (internal quotation marks omitted). And course the purportedly benign motive for the disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. Pea, 515 200, 227 (1995). might possible defend the law framing simply evidentiary tool used identify genuine, intentional discriminationto smoke out, were, disparate treatment.  See Primus, supra, 498499, 520521. Disparate impact sometimes (though not always, see Watson Fort Worth Bank Trust, 487 977, 992 (1988) (plurality opinion)) signal something illicit, regulator might allow statistical disparities play some role the evidentiary process. Cf. McDonnell Douglas Corp. Green, 411 792, 802803 (1973).  But arguably the disparate-impact provisions sweep too broadly fairly characterized such fashionsince they fail toprovide affirmative defense for good-faith (i.e., nonracially motivated) conduct, perhaps even for good faith plus hiring standards that are entirely reasonable.  See post, 1516, and (GINSBURG, J., dissenting) (describing the demanding nature the business necessity defense). This question that this Court will have toconsider due course. one thing free plaintiffs from proving employers illicit intent, but quite another preclude the employer from proving that its motives were pure and its actions reasonable.
The Courts resolution these cases makes unnecessary resolve these matters today.  But the war between disparate impact and equal protection will waged sooner later, and behooves begin thinking abouthowand what termsto make peace between them. 
ALITO, J., concurring 

SUPREME COURT THE UNITED STATES 
Nos. 071428 and 08328 
FRANK RICCI, AL., PETITIONERS 071428 JOHN DESTEFANO AL. 
FRANK RICCI, AL., PETITIONERS 08328 JOHN DESTEFANO AL. WRITS CERTIORARI THE UNITED STATES COURT APPEALS FOR THE SECOND CIRCUIT 
[June 29, 2009] 
JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, concurring. join the Courts opinion full. write separately onlybecause the dissent, while claiming that [t]he Courtsrecitation the facts leaves out important parts thestory, post, (opinion GINSBURG, J.), provides incomplete description the events that led New Havens decision reject the results its exam.  The dissents omissions are important because, when all theevidence the record taken into account, clear that, even the legal analysis Parts and IIIA the dissent were accepted, affirmance the decision below untenable. When employer disparate-treatment case under Title VII the Civil Rights Act 1964 claims that anemployment decision, such the refusal promote, was based legitimate reason, two questionsone objectiveand one subjectivemust decided.  The first, objectivequestion whether the reason given the employer 
RICCI DESTEFANO ALITO, J., concurring 
one that legitimate under Title VII. See St. Marys Honor Center Hicks, 509 502, 506507 (1993). the reason provided the employer not legitimate onits face, the employer liable.  Id., 509.  The second, subjective question concerns the employers intent. employer offers facially legitimate reason for its decision but turns out that this explanation was just pretext for discrimination, the employer again liable.  See id., 510512. 
The question which the opinion the Court and the dissenting opinion disagree concerns the objective component the determination that must made when employer justifies employment decision, like the one made this litigation, the ground that contrary decision would have created risk disparate-impactliability. The Court holdsand entirely agreethat concern about disparate-impact liability legitimatereason for decision the type involved here only therewas substantial basis evidence find the tests inadequate. Ante, 26.  The Court ably demonstrates that this litigation reasonable jury could find that the city New Haven (City) possessed such evidence and therefore summary judgment for petitioners required.  Because the Court correctly holds that respondents cannotsatisfy this objective component, the Court has need discuss the question the respondents actual intent. the Court puts it, [e]ven respondents were motivated asa subjective matter desire avoid committing disparate-impact discrimination, the record makes clear there support for the conclusion that respondents had objective, substantial basis evidence find the tests inadequate.  Ibid. 
The dissent advocates different objective component ofthe governing standard.  According the dissent, the objective component should whether the evidence provided good cause for the decision, post, 19, and the dissent arguesincorrectly, viewthat reasonable juror could fail find that such evidence was presenthere. But even the dissent were correct this point, assume that the dissent would not countenance summary judgment for respondents respondents professed concern about disparate-impact litigation was simply pretext.  Therefore, the decision below, which sustained the entry summary judgment for respondents, cannot beaffirmed unless reasonable jury could find that theCitys asserted reason for scrapping its testconcernabout disparate-impact liabilitywas pretext and thatthe Citys real reason was illegitimate, namely, the desire placate politically important racial constituency. initially described the dissent, see post, 212, the process which the City reached the decision not toaccept 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 behindthe scenes sabotage the promotional examinations because they knew that, were the exams certified, theMayor would incur the wrath [Rev. Boise] Kimber and other influential leaders New Havens African-American community. 554 Supp. 142, 162 (Conn. 2006), summarily affd, 530 (CA2 2008) (per curiam). 
This admission finds ample support the record.Reverend Boise Kimber, whom the District Court referred, politically powerful New Haven pastor and self-professed kingmaker.  App. Pet. for Cert. No. 071428, 906a; see also id., 909a. one occasion, [i]n front cameras, threatened race riot duringthe murder trial the black man arrested for killing white Yalie Christian Prince. continues call whites racist they question his actions. Id., 931a. 
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ALITO, J., concurring 
Reverend Kimbers personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than decade. 1996, for example, Mayor DeStefanotestified for Rev. Kimber character witness when Rev. Kimberthen the manager funeral homewas prosecuted and convicted for stealing prepaid funeral expensesfrom elderly woman and then lying about the matter under oath. See id., 126a, 907a. Reverend Kimber has played leadership role all Mayor DeStefanos political campaigns, [and] considered valuable politicalsupporter and vote-getter. Id., 126a. According theMayors former campaign manager (who currently his executive assistant), Rev. Kimber invaluable politicalasset because [h]es very good organizing people and putting together field operations, result his ties tolabor, his prominence the religious community and his long-standing commitment roots. Id., 908a (internalquotation marks and alteration omitted). 2002, the Mayor picked Rev. Kimber serve theChairman the New Haven Board Fire Commissioners (BFC), despite the fact that had experience the profession, fire administration, [or] municipal management. Id., 127a; see also id., 928a929a. that capacity, Rev. Kimber told firefighters that certain new recruits would not hired because they just have too many vowels their name[s].  Thanawala, New Haven Fire Panel Chairman Steps Down Over Racial Slur, Hartford Courant, June 13, 2002, B2.  After protests aboutthis comment, Rev. Kimber stepped down chairman the BFC, ibid.; see also App. Pet. for Cert. No. 071428, 929a, but remained the BFC and retained a direct line the mayor, id., 816a. 
Almost immediately after the test results were revealed early January 2004, Rev. Kimber called the Citys Chief Administrative Officer, Karen Dubois-Walton, who acts on behalf the Mayor.  Id., 221a, 812a. DuboisWalton and Rev. Kimber met privately her office because wanted to express his opinion about the test results and to have some influence over the Citys response. Id., 815a816a. discussed further detail below, Rev. Kimber adamantly opposed certification the test resultsa fact that someone the Mayors office eventually conveyed the Mayor. Id., 229a. January 12, 2004, Tina Burgett (the director theCitys Department Human Resources) sent e-mail toDubois-Walton coordinate the Citys response the testresults. Burgett wanted clarify that the Citys executive officials would meet sans the Chief, and that once had better fix the next steps would meet with theMayor (possibly) and then the two Chiefs. Id., 446a. The two Chiefs are Fire Chief William Grant (who white) and Assistant Fire Chief Ronald Dumas (who isAfrican-American).  Both chiefs believed that the test results should certified. Id., 228a, 817a.  Petitioners allege, and the record suggests, that the Mayor and hisstaff colluded sans the Chief[s] because the defendantsdid not want Grants Dumas views publiclyknown; accordingly both men were prevented the Mayor and his staff from making any statements regarding the matter. Id., 228a.1 The next day, January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago New Haven meet with Dubois-Walton, Burgett, and Thomas Ude, the Citys corporate counsel.  Id., 179a.  Legel outlined
the merits the examination and why city officials shouldbe confident the validity the results.  Ibid.  But  
1Although the dissent disputes it, see post, 3334, 17, the record certainly permits the inference that petitioners allegation true.  See App. Pet. for Cert. No. 071428, pp. 846a851a (deposition Dubois-Walton). 
RICCI DESTEFANO ALITO, J., concurring 
according Legel, Dubois-Walton was argumentativeand apparently had already made her mind that thetests were discriminatory.  Id., 179a180a. Againaccording Legel, [a] theme the meeting was the political and racial overtones what was going theCity. Id., 181a. Legel came away from the January 13, 2004 meeting with the impression that defendants were already leaning toward discarding the examination results. Id., 180a. January 22, 2004, the Civil Service Board (CSB orBoard) convened its first public meeting.  Almost immediately, Rev. Kimber began exert political pressure theCSB. began loud, minutes-long outburst that required the CSB Chairman shout him down and hold him out order three times.  See id., 187a, 467a468a; see also App. No. 064996cv (CA2), pp. A703A705.Reverend Kimber protested the public meeting, arguingthat and the other fire commissioners should first allowed meet with the CSB private.  App. Pet. for Cert. No. 071428, 188a. 
Four days after the CSBs first meeting, Mayor DeStefanos executive aide sent e-mail Dubois-Walton, Burgett, and Ude.  Id., 190a. The message clearlyindicated that the Mayor had made his mind oppose certification the test results (but nevertheless wanted toconceal that fact from the public): 
I wanted make sure are all the same pagefor this meeting tomorrow.  [L]ets remember, that these folks are not against certification yet. cant and tell them that our position; have deliberate and arrive there the fairest and most cogent outcome. Ibid. February 2004, the CSB convened its second public meeting. Reverend Kimber again testified andthreatened the CSB with political recriminations they 
ALITO, J., concurring 
voted certify the test results: 
I look this [Board] tonight. look three whites 
and one Hispanic and blacks. would hope that 
you would not put yourself this type position, 
political ramification that may come back upon you 
you sit this [Board] and decide the future
department and the future those who are being
promoted. 
(APPLAUSE).  Id., 492a (emphasis added). 
One the CSB members t[ook] great offense because believed that Rev. Kimber consider[ed] [him] bigot because [his] face white.  Id., 496a.  The offended CSB member eventually voted not certify the test results. Id., 586a587a. 
One Rev. Kimbers friends and allies, Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. Id., 129a.  After some firefighters applauded insupport certifying the test results, Lt. Tinney exclaimed, Listen the Klansmen behind us. Id., 225a. 
Tinney also has strong ties the Mayors office.  See, e.g., id., 129a130a, 816a817a.  After learning that had not scored well enough the captains exam earn promotion, Tinney called Dubois-Walton and arranged meeting her office. Id., 830a831a, 836a.  Tinneyalleged that the white firefighters had cheated theirexamsan accusation that Dubois-Walton conveyed the Board without first conducting investigation into itsveracity. Id., 837a838a; see also App. 164 (statement CSB Chairman, noting the allegations cheating).  The allegation turned out baseless.  App. Pet. for Cert. No. 071428, 836a. 
Dubois-Walton never retracted the cheating allegation,but she and other executive officials testified several times before the CSB. accordance with directions from the 
RICCI DESTEFANO ALITO, J., concurring 
Mayors office make the CSB meetings appear deliberative, see id., 190a, executive officials remained publiclyuncommitted about certificationwhile simultaneouslywork[ing] team behind closed doors with the secretary the CSB devise political message that wouldconvince the CSB vote against certification, see id., 447a. the public CSB meeting March 11, 2004, for example, Corporation Counsel Ude bristled one boardmembers suggestion that City officials were recommending against certifying the test results.  See id., 215a (Attorney Ude took offense, stating, Frankly, because Iwould never make recommendationI would not have made recommendation like that).  But within days making that public statement, Ude privately told other members the Mayors team the ONLY way get adecision not certify is focus something other thana big discussion re: adverse impact law. Id., 458a 459a. part its effort deflect attention from the specificsof the test, the City relied heavily the testimony Dr.Christopher Hornick, who one Chad Legels competitors the test-development business. Hornick never stud[ied] the test [that Legel developed] length indetail, id., 549a; see also id., 203a, 553a, but Hornick did review and rely upon literature sent him byBurgett criticize Legels test.  For example, Hornicknoted the literature that [Burgett] sent that the test was not customized the New Haven Fire Department. Id., 551a. The Chairman the CSB immediately corrected Hornick.  Id., 552a (Actually, was, Dr. Hornick). Hornick also relied newspaper accountsagain, sent him Burgettpertaining the controversysurrounding the certification decision.  See id., 204a, 557a. Although Hornick again admitted that had knowledge about the actual test that Legel had developedand that the City had administered, see id., 560a561a, the City repeatedly relied upon Hornick testingguru and, the CSB Chairmans words, the City ke[pt]quoting him person that should rely upon morethan anybody else [to conclude that there] better waya better mousetrap.2  App. No. 064996cv (CA2), A1128.  Dubois-Walton later admitted that the City rewarded Hornick for his testimony hiring him develop and administer alternative test.  App. Pet. for Cert. No. 071428, 854a; see also id., 562a 563a (Hornicks plea for future business from the City the basis his criticisms Legels tests). some point prior the CSBs public meeting March 18, 2004, the Mayor decided use his executiveauthority disregard the test resultseven the CSB ultimately voted certify them. Id., 819a820a. Accordingly, the evening March 17th, Dubois-Waltonsent e-mail the Mayor, the Mayors executive assistant, Burgett, and attorney Ude, attaching two alternative press releases. Id., 457a. The first would issued the CSB voted not certify the test results; the secondwould issued (and would explain the Mayors invocationof his executive authority) the CSB voted certify the test results. Id., 217a218a, 590a591a, 819a820a. Half hour after Dubois-Walton circulated the alternative drafts, Burgett replied: [W]ell, that seems say all. Lets hope draft hits the shredder tomorrow nite. Id., 457a. 
 2The Citys heavy reliance Hornicks testimony makes the two chiefs silence all the more striking.  See supra, While Hornick knew little nothing about the tests criticized, the two chiefs were involved during the lengthy process that led the devising the administration these exams, App. Pet. for Cert. No. 071428,at 847a, including collaborating with City officials the extensive jobanalyses that were done, selection the oral panelists, and selectionof the proper content and subject matter the exams, id., 847a 848a. 
 RICCI DESTEFANO 
ALITO, J., concurring 
Soon after the CSB voted against certification, MayorDeStefano appeared dinner event and took credit for the scu[tt]ling the examination results. Id., 230a. Taking into account all the evidence the summaryjudgment record, reasonable jury could find the following. Almost soon the City disclosed the racialmakeup the list firefighters who scored the highest the exam, the City administration was lobbied aninfluential community leader scrap the test results, andthe City administration decided that course action before making any real assessment the possibility disparate-impact violation. achieve that end, the City administration concealed its internal decision but workedas things turned out, successfullyto persuadethe CSB that acceptance the test results would illegal and would expose the City disparate-impact liability. But the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared overrule the CSB immediately.  Taking this view the evidence, reasonable jury could easily find that the Citys real reason for scrapping the test resultswas not concern about violating the disparate-impact provision Title VII but simple desire please politically important racial constituency. noteworthy thatthe Solicitor Generalwhose position the principal legal issue this case largely aligned with the dissentconcludes that [n]either the district court nor thecourt appeals adequately considered whether, viewing the evidence the light most favorable petitioners, genuine issue material fact remained whether respondents claimed purpose comply with Title VII was pretext for intentional racial discrimination .  Brief for United States Amicus Curiae see also id., 32 
33. 
ALITO, J., concurring 
III will not comment length the dissents criticism analysis, but two points require response.The first concerns the dissents statement that equat[e] political considerations with unlawful discrimination. Post, 36. The dissent misrepresents position: draw such equation. course there are manyways which politician can attempt win over constituencyincluding racial constituencywithout engaging unlawful discrimination.  Post, 3637.  But assume the dissent would agreethere are somethings that public official cannot do, and one those isengaging intentional racial discrimination when making employment decisions.The second point concerns the dissents main argumentthat efforts the Mayor and his staff scuttle the test results are irrelevant because the ultimate decision was made the CSB.  According the dissent,[t]he relevant decision was made the CSB, post, 34, and there scant cause suspect that anything done the opponents certification, including the Mayor and his staff, prevented the CSB from evenhandedly assessing the reliability the exams and rendering independent, good-faith decision certification, post, 36. Adoption the dissents argument would implicitlydecide important question Title VII law that this Court has never resolvedthe circumstances which employer may held liable based the discriminatory intent subordinate employees who influence but not make the ultimate employment decision.  There largebody court appeals case law this issue, and these cases disagree about the proper standard. See EEOC BCI Coca-Cola Bottling Co. Los Angeles, 450 476, 484488 (CA10 2006) (citing cases and describing the approaches taken different Circuits). One standard whether the subordinate exerted influenc[e] over the 
 RICCI DESTEFANO ALITO, J., concurring 
titular decisionmaker.  Russell McKinney Hosp. Venture, 235 219, 227 (CA5 2000); see also Poland Chertoff, 494 1174, 1182 (CA9 2007) subordinatesbias imputed the employer where the subordinate influenced was involved the decision decisionmaking process).  Another whether the discriminatoryinput caused the adverse employment action.  See BCI Coca-Cola Bottling Co. Los Angeles, supra, 487. the present cases, reasonable jury could certainlyfind that these standards were met.  The dissent makes much the fact that members the CSB swore under oath that their votes were based the good-faith belief that certification the results would have violated federal law. See post, 34. But the good faith the CSB members would not preclude finding that the presentations engineered the Mayor and his staff influenced caused the CSB decision. 
The least employee-friendly standard asks only whether the actual decisionmaker acted with discriminatory intent, see Hill Lockheed Martin Logistics Management, Inc., 354 277, 291 (CA4 2004) (en banc), and istelling that, even under this standard, summary judgment for respondents would not proper.  This because reasonable jury could certainly find that New Haven, the Mayornot the CSBwielded the final decisionmaking power.  After all, the Mayor claimed that authorityand was poised use the event that the CSB decidedto accept the test results.  See supra, the Mayorhad the authority overrule CSB decision accepting the test results, the Mayor also presumably had the authority overrule the CSBs decision rejecting the test results. light the Mayors conduct, would quite wrong tothrow out petitioners case the ground that the CSBwas the ultimate decisionmaker. 
ALITO, J., concurring Petitioners are firefighters who seek only fair chanceto move the ranks their chosen profession. order qualify for promotion, they made personal sacrifices.Petitioner Frank Ricci, who dyslexic, found necessary hir[e] someone, considerable expense, read ontoaudiotape the content the books and study materials.App. Pet. for Cert. No. 071428, 169a. studied average eight thirteen hours day evenlistening audio tapes while driving his car.  Ibid. Petitioner Benjamin Vargas, who Hispanic, had giveup part-time job, and his wife had take leave from her own job order take care their three youngchildren while Vargas studied. Id., 176a.  Vargasdevoted countless hours study missed two hischildrens birthdays and over two weeks vacation time,and incurred significant financial expense during the three-month study period.  Id., 176a177a. Petitioners were denied promotions for which theyqualified because the race and ethnicity the firefighters who achieved the highest scores the Citys exam. The District Court threw out their case summaryjudgment, even though that court all but conceded that ajury could find that the Citys asserted justification was pretextual. The Court Appeals then summarily affirmed that decision. The dissent grants that petitioners situation unfortunate and that they understandably attract this Courts sympathy.rdqu