RICCI et al. v. DeSTEFANO et al.

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RICCI et al. v. DeSTEFANO et al.
certiorari to the united states court of appeals for
the second circuit
No. 07–1428. Argued April 22, 2009—Decided June 29, 2009*
New Haven, Conn. (City), uses objective examinations to identify those
firefighters best qualified for promotion. When the results of such an
exam to fill vacant lieutenant and captain positions showed that white
candidates had outperformed minority candidates, a rancorous public
debate ensued. Confronted with arguments both for and against certi
fying the test results—and threats of a lawsuit either way—the City
threw out the results based on the statistical racial disparity. Petition
ers, white and Hispanic firefighters who passed the exams but were
denied a chance at promotions by the City’s refusal to certify the test
results, sued the City and respondent officials, alleging that discarding
the test results discriminated against them based on their race in viola
tion of, inter alia, Title VII of the Civil Rights Act of 1964. The de
fendants responded that had they certified the test results, they could
have faced Title VII liability for adopting a practice having a disparate
impact on minority firefighters. The District Court granted summary
judgment for the defendants, and the Second Circuit affirmed.
Held: The City’s action in discarding the tests violated Title VII.
Pp. 576–593.
(a) Title VII prohibits intentional acts of employment discrimination
based on race, color, religion, sex, and national origin, 42 U. S. C.
§ 2000e–2(a)(1) (disparate treatment), as well as policies or practices that
are not intended to discriminate but in fact have a disproportionately
adverse effect on minorities, § 2000e–2(k)(1)(A)(i) (disparate impact).
Once a plaintiff has established a prima facie case of disparate impact,
the employer may defend by demonstrating that its policy or practice is
“job related for the position in question and consistent with business
necessity.” Ibid. If the employer meets that burden, the plaintiff may
still succeed by showing that the employer refuses to adopt an available
alternative practice that has less disparate impact and serves the em
ployer’s legitimate needs. §§ 2000e–2(k)(1)(A)(ii) and (C). Pp. 577–578.
(b) Under Title VII, before an employer can engage in intentional
discrimination for the asserted purpose of avoiding or remedying an
*Together with No. 08–328, Ricci et al. v. DeStefano et al., also on cer
tiorari to the same court.

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unintentional, disparate impact, the employer must have a strong basis
in evidence to believe it will be subject to disparate-impact liability if
it fails to take the race-conscious, discriminatory action. The Court’s
analysis begins with the premise that the City’s actions would violate
Title VII’s disparate-treatment prohibition absent some valid defense.
All the evidence demonstrates that the City rejected the test results
because the higher scoring candidates were white. Without some other
justification, this express, race-based decisionmaking is prohibited.
The question, therefore, is whether the purpose to avoid disparate
impact liability excuses what otherwise would be prohibited disparate
treatment discrimination. The Court has considered cases similar to
the present litigation, but in the context of the Fourteenth Amendment’s
Equal Protection Clause. Such cases can provide helpful guidance in
this statutory context. See Watson v. Fort Worth Bank & Trust, 487
U. S. 977, 993. In those cases, the Court held that certain government
actions to remedy past racial discrimination—actions that are them
selves based on race—are constitutional only where there is a “strong
basis in evidence” that the remedial actions were necessary. Richmond
v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd.
of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in-evidence
standard, the Wygant plurality recognized the tension between elimi
nating segregation and discrimination on the one hand and doing away
with all governmentally imposed discrimination based on race on the
other. 476 U. S., at 277. It reasoned that “[e]videntiary support for
the conclusion that remedial action is warranted becomes crucial when
the remedial program is challenged in court by nonminority employees.”
Ibid. The same interests are at work in the interplay between Title
VII’s disparate-treatment and disparate-impact provisions. Applying
the strong-basis-in-evidence standard to Title VII gives effect to both
provisions, allowing violations of one in the name of compliance with
the other only in certain, narrow circumstances. It also allows the
disparate-impact prohibition to work in a manner that is consistent with
other Title VII provisions, including the prohibition on adjusting
employment-related test scores based on race, see § 2000e–2(l), and the
section that expressly protects bona fide promotional exams, see
§ 2000e–2(h). Thus, the Court adopts the strong-basis-in-evidence
standard as a matter of statutory construction in order to resolve any
conflict between Title VII’s disparate-treatment and disparate-impact
provisions. Pp. 578–585.
(c) The City’s race-based rejection of the test results cannot satisfy
the strong-basis-in-evidence standard. Pp. 585–593.
(i) The racial adverse impact in this litigation was significant, and
petitioners do not dispute that the City was faced with a prima facie

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case of disparate-impact liability. The problem for respondents is that
such a prima facie case—essentially, a threshold showing of a significant
statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing
more—is far from a strong basis in evidence that the City would have
been liable under Title VII had it certified the test results. That is
because the City could be liable for disparate-impact discrimination only
if the exams at issue were not job related and consistent with business
necessity, or if there existed an equally valid, less discriminatory alter
native that served the City’s needs but that the City refused to adopt.
§§ 2000e–2(k)(1)(A), (C). Based on the record the parties developed
through discovery, there is no substantial basis in evidence that the tests
were deficient in either respect. Pp. 585–587.
(ii) The City’s assertions that the exams at issue were not job re
lated and consistent with business necessity are blatantly contradicted
by the record, which demonstrates the detailed steps taken to develop
and administer the tests and the painstaking analyses of the questions
asked to assure their relevance to the captain and lieutenant positions.
The testimony also shows that complaints that certain examination
questions were contradictory or did not specifically apply to firefighting
practices in the City were fully addressed, and that the City turned a
blind eye to evidence supporting the exams’ validity. Pp. 587–589.
(iii) Respondents also lack a strong basis in evidence showing an
equally valid, less discriminatory testing alternative that the City, by
certifying the test results, would necessarily have refused to adopt.
Respondents’ three arguments to the contrary all fail. First, respond
ents refer to testimony that a different composite-score calculation
would have allowed the City to consider black candidates for then-open
positions, but they have produced no evidence to show that the candi
date weighting actually used was indeed arbitrary, or that the different
weighting would be an equally valid way to determine whether candi
dates are qualified for promotions. Second, respondents argue that the
City could have adopted a different interpretation of its charter provi
sion limiting promotions to the highest scoring applicants, and that the
interpretation would have produced less discriminatory results; but re
spondents’ approach would have violated Title VII’s prohibition of race
based adjustment of test results, § 2000e–2(l). Third, testimony assert
ing that the use of an assessment center to evaluate candidates’ behavior
in typical job tasks would have had less adverse impact than written
exams does not aid respondents, as it is contradicted by other state
ments in the record indicating that the City could not have used assess
ment centers for the exams at issue. Especially when it is noted that
the strong-basis-in-evidence standard applies to these cases, respondents

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cannot create a genuine issue of fact based on a few stray (and contradic
tory) statements in the record. Pp. 589–592.
(iv) Fear of litigation alone cannot justify the City’s reliance on race
to the detriment of individuals who passed the examinations and quali
fied for promotions. Discarding the test results was impermissible
under Title VII, and summary judgment is appropriate for petitioners
on their disparate-treatment claim. If, after it certifies the test results,
the City faces a disparate-impact suit, then in light of today’s holding
the City can avoid disparate-impact liability based on the strong basis
in evidence that, had it not certified the results, it would have been
subject to disparate-treatment liability. Pp. 592–593.
530 F. 3d 87, reversed and remanded.
Kennedy, J., delivered the opinion of the Court, in which Roberts,
C. J., and Scalia, Thomas, and Alito, JJ., joined. Scalia, J., filed a
concurring opinion, post, p. 594. Alito, J., filed a concurring opinion, in
which Scalia and Thomas, JJ., joined, post, p. 596. Ginsburg, J., filed a
dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined,
post, p. 608.
Gregory S. Coleman argued the cause for petitioners in
both cases. With him on the briefs were Edward C. Daw
son, Dori K. Goldman, and Karen Lee Torre.
Deputy Solicitor General Kneedler argued the cause for
the United States as amicus curiae in both cases supporting
vacatur and remand. With him on the brief were Acting
Assistant Attorney General King, Deputy Solicitor General
Katyal, Lisa S. Blatt, Leondra R. Kruger, Steven H. Rosen
baum, Jessica Dunsay Silver, Gregory B. Friel, Lisa J.
Stark, Carol A. DeDeo, Edward D. Sieger, Carolyn L.
Wheeler, and Gail S. Coleman.
Christopher J. Meade argued the cause for respondents in
both cases. With him on the brief were Seth P. Waxman,
Anne K. Small, Victor A. Bolden, Kathleen M. Foster,
David T. Goldberg, and Richard A. Roberts.†
†Briefs of amici curiae urging reversal in both cases were filed for the
American Civil Rights Union by Peter J. Ferrara; for Bridgeport Fire

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Opinion of the Court
Justice Kennedy delivered the opinion of the Court.
In the fire department of New Haven, Connecticut—as in
emergency-service agencies throughout the Nation—fire
fighters for Merit Employment, Inc., by Stewart I. Edelstein; for the Cato
Institute et al. by Ilya Shapiro and Manuel S. Klausner; for the Center
for Individual Rights et al. by Michael E. Rosman; for the Concerned
American Firefighters Association, Philadelphia Chapter, by Gregory J.
Sullivan; for the Eagle Forum Education and Legal Defense Fund by
Douglas G. Smith; for Law Professors et al. by Martin S. Kaufman; for
the Mountain States Legal Foundation by J. Scott Detamore; for the Na
tional Association of Police Organizations by Scott M. Abeles; for the Pa
cific Legal Foundation et al. by Sharon L. Browne, Alan W. Foutz, and
Steven G. Gieseler; and for Joe Oakley et al. by Henry C. Shelton III,
Brian S. Faughnan, and Emily C. Taube.
Briefs of amici curiae urging affirmance in both cases were filed for
the State of Maryland et al. by Douglas F. Gansler, Attorney General of
Maryland, Austin C. Schlick, Steven M. Sullivan, and Michele J. McDon
ald, by Richard A. Svobodny, Acting Attorney General of Alaska, and
by the Attorneys General for their respective States as follows: Dustin
McDaniel of Arkansas, Tom Miller of Iowa, Catherine Cortez Masto of
Nevada, and Mark L. Shurtleff of Utah; for the American Civil Liberties
Union et al. by Kevin K. Russell, Amy Howe, Pamela S. Karlan, Jeffrey
L. Fisher, Steven R. Shapiro, and Dennis D. Parker; for the Asian Ameri
can Justice Center et al. by Vincent A. Eng and Karen K. Narasaki; for
the Equal Employment Advisory Council by Rae T. Vann, Jeffrey A. Nor
ris, and Lorence L. Kessler; for Industrial-Organizational Psychologists by
David C. Frederick and Derek T. Ho; for the International Association of
Black Professional Fire Fighters et al. by Christy B. Bishop and Dennis
R. Thompson; for the International Association of Hispanic Firefighters
et al. by Marcia L. McCormick; for the International Municipal Lawyers
Association et al. by Andrew J. Pincus and Charles Rothfeld; for the Law
yers’ Committee for Civil Rights Under Law et al. by Michael L. Fore
man, Sarah Crawford, Catherine Sun Wood, Marc H. Morial, Angela
Ciccolo, and Eva Paterson; for the NAACP Legal Defense & Educational
Fund, Inc., by John Payton, Jacqueline A. Berrien, Debo P. Adegbile,
Matthew Colangelo, and Joshua Civin; for the National Partnership for
Women & Families et al. by Helen Norton, Judith L. Lichtman, Marcia
D. Greenberger, and Jocelyn Samuels; for the New York Law School Racial
Justice Project by Elise C. Boddie; for the Opportunity Agenda by Ankur
J. Goel and Alan Jenkins; and for the Society for Human Resource Man

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fighters prize their promotion to and within the officer ranks.
An agency’s officers command respect within the department
and in the whole community; and, of course, added responsi
bilities command increased salary and benefits. Aware of
the intense competition for promotions, New Haven, like
many cities, relies on objective examinations to identify the
best qualified candidates.
In 2003, 118 New Haven firefighters took examinations to
qualify for promotion to the rank of lieutenant or captain.
Promotion examinations in New Haven (or City) were infre
quent, so the stakes were high. The results would deter
mine which firefighters would be considered for promotions
during the next two years, and the order in which they
would be considered. Many firefighters studied for months,
at considerable personal and financial cost.
When the examination results showed that white candi
dates had outperformed minority candidates, the mayor and
other local politicians opened a public debate that turned
rancorous. Some firefighters argued the tests should be dis
carded because the results showed the tests to be discrimina
tory. They threatened a discrimination lawsuit if the City
made promotions based on the tests. Other firefighters said
the exams were neutral and fair. And they, in turn, threat
ened a discrimination lawsuit if the City, relying on the sta
tistical racial disparity, ignored the test results and denied
promotions to the candidates who had performed well. In
the end the City took the side of those who protested the
test results. It threw out the examinations.
Certain white and Hispanic firefighters who likely would
have been promoted based on their good test performance
agement by Samuel Estreicher, Meir Feder, Donald B. Ayer, and Law
rence D. Rosenberg.
Briefs of amici curiae were filed in both cases for the Anti-Defamation
League by Michael F. Smith, Martin E. Karlinsky, Howard W. Goldstein,
Steven M. Freeman, and Steven C. Sheinberg; for the Claremont Institute
Center for Constitutional Jurisprudence by John C. Eastman and Edwin
Meese III; and for Kedar Bhatia by Alan Sager.

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sued the City and some of its officials. Theirs is the suit
now before us. The suit alleges that, by discarding the test
results, the City and the named officials discriminated
against the plaintiffs based on their race, in violation of both
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U. S. C. § 2000e et seq., and the Equal Protection
Clause of the Fourteenth Amendment. The City and the
officials defended their actions, arguing that if they had cer
tified the results, they could have faced liability under Title
VII for adopting a practice that had a disparate impact on
the minority firefighters. The District Court granted sum
mary judgment for the defendants, and the Court of Ap
peals affirmed.
We conclude that race-based action like the City’s in this
case is impermissible under Title VII unless the employer
can demonstrate a strong basis in evidence that, had it not
taken the action, it would have been liable under the
disparate-impact statute. Respondents, we further deter
mine, cannot meet that threshold standard. As a result, the
City’s action in discarding the tests was a violation of Title
VII. In light of our ruling under the statutes, we need not
reach the question whether respondents’ actions may have
violated the Equal Protection Clause.
I
This litigation comes to us after the parties’ cross-motions
for summary judgment, so we set out the facts in some de
tail. As the District Court noted, although “the parties
strenuously dispute the relevance and legal import of, and
inferences to be drawn from, many aspects of this case, the
underlying facts are largely undisputed.” 554 F. Supp. 2d
142, 145 (Conn. 2006).
A
When the City of New Haven undertook to fill vacant lieu
tenant and captain positions in its fire department (Depart
ment), the promotion and hiring process was governed by
the City charter, in addition to federal and state law. The

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charter establishes a merit system. That system requires
the City to fill vacancies in the classified civil-service ranks
with the most qualified individuals, as determined by job
related examinations. After each examination, the New
Haven Civil Service Board (CSB) certifies a ranked list of
applicants who passed the test. Under the charter’s “rule
of three,” the relevant hiring authority must fill each vacancy
by choosing one candidate from the top three scorers on the
list. Certified promotional lists remain valid for two years.
The City’s contract with the New Haven firefighters’ union
specifies additional requirements for the promotion process.
Under the contract, applicants for lieutenant and captain po
sitions were to be screened using written and oral examina
tions, with the written exam accounting for 60 percent and
the oral exam 40 percent of an applicant’s total score. To
sit for the examinations, candidates for lieutenant needed 30
months’ experience in the Department, a high school di
ploma, and certain vocational training courses. Candidates
for captain needed one year’s service as a lieutenant in the
Department, a high school diploma, and certain vocational
training courses.
After reviewing bids from various consultants, the City
hired Industrial/Organizational Solutions, Inc. (IOS), to de
velop and administer the examinations, at a cost to the City
of $100,000. IOS is an Illinois company that specializes in
designing entry-level and promotional examinations for fire
and police departments. In order to fit the examinations to
the New Haven Department, IOS began the test-design
process by performing job analyses to identify the tasks,
knowledge, skills, and abilities that are essential for the lieu
tenant and captain positions. IOS representatives inter
viewed incumbent captains and lieutenants and their super
visors. They rode with and observed other on-duty officers.
Using information from those interviews and ride-alongs,
IOS wrote job-analysis questionnaires and administered
them to most of the incumbent battalion chiefs, captains, and

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lieutenants in the Department. At every stage of the job
analyses, IOS, by deliberate choice, oversampled minority
firefighters to ensure that the results—which IOS would
use to develop the examinations—would not unintentionally
favor white candidates.
With the job-analysis information in hand, IOS developed
the written examinations to measure the candidates’ job
related knowledge. For each test, IOS compiled a list of
training manuals, Department procedures, and other materi
als to use as sources for the test questions. IOS presented
the proposed sources to the New Haven fire chief and assist
ant fire chief for their approval. Then, using the approved
sources, IOS drafted a multiple-choice test for each position.
Each test had 100 questions, as required by CSB rules, and
was written below a 10th-grade reading level. After IOS
prepared the tests, the City opened a 3-month study period.
It gave candidates a list that identified the source material
for the questions, including the specific chapters from which
the questions were taken.
IOS developed the oral examinations as well. These con
centrated on job skills and abilities. Using the job-analysis
information, IOS wrote hypothetical situations to test
incident-command skills, firefighting tactics, interpersonal
skills, leadership, and management ability, among other
things. Candidates would be presented with these hypo
theticals and asked to respond before a panel of three
assessors.
IOS assembled a pool of 30 assessors who were superior in
rank to the positions being tested. At the City’s insistence
(because of controversy surrounding previous examinations),
all the assessors came from outside Connecticut. IOS sub
mitted the assessors’ resumes to City officials for approval.
They were battalion chiefs, assistant chiefs, and chiefs from
departments of similar sizes to New Haven’s throughout the
country. Sixty-six percent of the panelists were minorities,
and each of the nine three-member assessment panels con

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tained two minority members. IOS trained the panelists for
several hours on the day before it administered the examina
tions, teaching them how to score the candidates’ responses
consistently using checklists of desired criteria.
Candidates took the examinations in November and De
cember 2003. Seventy-seven candidates completed the lieu
tenant examination—43 whites, 19 blacks, and 15 Hispanics.
Of those, 34 candidates passed—25 whites, 6 blacks, and 3
Hispanics. 554 F. Supp. 2d, at 145. Eight lieutenant posi
tions were vacant at the time of the examination. As the
rule of three operated, this meant that the top 10 candidates
were eligible for an immediate promotion to lieutenant. All
10 were white. Ibid. Subsequent vacancies would have al
lowed at least 3 black candidates to be considered for promo
tion to lieutenant.
Forty-one candidates completed the captain examination—
25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates
passed—16 whites, 3 blacks, and 3 Hispanics. Ibid. Seven
captain positions were vacant at the time of the examination.
Under the rule of three, 9 candidates were eligible for an
immediate promotion to captain—7 whites and 2 Hispanics.
Ibid.
B
The City’s contract with IOS contemplated that, after the
examinations, IOS would prepare a technical report that de
scribed the examination processes and methodologies and
analyzed the results. But in January 2004, rather than re
questing the technical report, City officials, including the
City’s counsel, Thomas Ude, convened a meeting with IOS
Vice President Chad Legel. (Legel was the leader of the
IOS team that developed and administered the tests.)
Based on the test results, the City officials expressed con
cern that the tests had discriminated against minority candi
dates. Legel defended the examinations’ validity, stating
that any numerical disparity between white and minority
candidates was likely due to various external factors and was

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in line with results of the Department’s previous promo
tional examinations.
Several days after the meeting, Ude sent a letter to the
CSB purporting to outline its duties with respect to the
examination results. Ude stated that under federal law,
“a statistical demonstration of disparate impact,” standing
alone, “constitutes a sufficiently serious claim of racial dis
crimination to serve as a predicate for employer-initiated,
voluntar[y] remedies—even . . . race-conscious remedies.”
App. to Pet. for Cert. in No. 07–1428, p. 443a; see also 554
F. Supp. 2d, at 145 (issue of disparate impact “appears to
have been raised by . . . Ude”).
1
The CSB first met to consider certifying the results on
January 22, 2004. Tina Burgett, director of the City’s De
partment of Human Resources, opened the meeting by tell
ing the CSB that “there is a significant disparate impact on
these two exams.” App. to Pet. for Cert. in No. 07–1428, at
466a. She distributed lists showing the candidates’ races
and scores (written, oral, and composite) but not their names.
Ude also described the test results as reflecting “a very sig
nificant disparate impact,” id., at 477a, and he outlined possi
ble grounds for the CSB’s refusing to certify the results.
Although they did not know whether they had passed or
failed, some firefighter-candidates spoke at the first CSB
meeting in favor of certifying the test results. Michael
Blatchley stated that “[e]very one” of the questions on the
written examination “came from the [study] material. . . . [I]f
you read the materials and you studied the material, you
would have done well on the test.” App. in No. 06–4996–cv
(CA2), pp. A772–A773 (hereinafter CA2 App.). Frank Ricci
stated that the test questions were based on the Depart
ment’s own rules and procedures and on “nationally recog
nized” materials that represented the “accepted standard[s]”
for firefighting. Id., at A785–A786. Ricci stated that he

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had “several learning disabilities,” including dyslexia; that
he had spent more than $1,000 to purchase the materials and
pay his neighbor to read them on tape so he could “give it
[his] best shot”; and that he had studied “8 to 13 hours a day
to prepare” for the test. Id., at A786, A789. “I don’t even
know if I made it,” Ricci told the CSB, “[b]ut the people who
passed should be promoted. When your life’s on the line,
second best may not be good enough.” Id., at A787–A788.
Other firefighters spoke against certifying the test results.
They described the test questions as outdated or not relevant
to firefighting practices in New Haven. Gary Tinney stated
that source materials “came out of New York. . . . Their
makeup of their city and everything is totally different than
ours.” Id., at A774–A775; see also id., at A779, A780–A781.
And they criticized the test materials, a full set of which cost
about $500, for being too expensive and too long.
2
At a second CSB meeting, on February 5, the president of
the New Haven firefighters’ union asked the CSB to perform
a validation study to determine whether the tests were job
related. Petitioners’ counsel in this action argued that the
CSB should certify the results. A representative of the In
ternational Association of Black Professional Firefighters,
Donald Day from neighboring Bridgeport, Connecticut,
“beseech[ed]” the CSB “to throw away that test,” which
he described as “inherently unfair” because of the racial
distribution of the results. Id., at A830–A831. Another
Bridgeport-based representative of the association, Ronald
Mackey, stated that a validation study was necessary. He
suggested that the City could “adjust” the test results to
“meet the criteria of having a certain amount of minorities
get elevated to the rank of Lieutenant and Captain.” Id., at
A838. At the end of this meeting, the CSB members agreed
to ask IOS to send a representative to explain how it had
developed and administered the examinations. They also

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discussed asking a panel of experts to review the examina
tions and advise the CSB whether to certify the results.
3
At a third meeting, on February 11, Legel addressed the
CSB on behalf of IOS. Legel stated that IOS had previously
prepared entry-level firefighter examinations for the City
but not a promotional examination. He explained that IOS
had developed examinations for departments in communities
with demographics similar to New Haven’s, including Orange
County, Florida; Lansing, Michigan; and San Jose, California.
Legel explained the exam-development process to the
CSB. He began by describing the job analyses IOS per
formed of the captain and lieutenant positions—the inter
views, ride-alongs, and questionnaires IOS designed to “gen
erate a list of tasks, knowledge, skills and abilities that are
considered essential to performance” of the jobs. Id., at
A931–A932. He outlined how IOS prepared the written and
oral examinations, based on the job-analysis results, to test
most heavily those qualities that the results indicated were
“critica[l]” or “essentia[l].” Id., at A931. And he noted
that IOS took the material for each test question directly
from the approved source materials. Legel told the CSB
that third-party reviewers had scrutinized the examinations
to ensure that the written test was drawn from the source
material and that the oral test accurately tested real-world
situations that captains and lieutenants would face. Legel
confirmed that IOS had selected oral-examination panelists
so that each three-member assessment panel included one
white, one black, and one Hispanic member.
Near the end of his remarks, Legel “implor[ed] anyone
that had . . . concerns to review the content of the exam. In
my professional opinion, it’s facially neutral. There’s noth
ing in those examinations . . . that should cause somebody to
think that one group would perform differently than another
group.” Id., at A961.

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4
At the next meeting, on March 11, the CSB heard from
three witnesses it had selected to “tell us a little bit about
their views of the testing, the process, [and] the methodol
ogy.” Id., at A1020. The first, Christopher Hornick, spoke
to the CSB by telephone. Hornick is an industrial/organiza
tional psychologist from Texas who operates a consulting
business that “direct[ly]” competes with IOS. Id., at A1029.
Hornick, who had not “stud[ied] the test at length or in de
tail” and had not “seen the job analysis data,” told the CSB
that the scores indicated a “relatively high adverse impact.”
Id., at A1028, A1030, A1043. He stated that “[n]ormally,
whites outperform ethnic minorities on the majority of
standardized testing procedures,” but that he was “a little
surprised” by the disparity in the candidates’ scores—
although “[s]ome of it is fairly typical of what we’ve seen in
other areas of the countr[y] and other tests.” Id., at A1028–
A1029. Hornick stated that the “adverse impact on the
written exam was somewhat higher but generally in the
range that we’ve seen professionally.” Id., at A1030–A1031.
When asked to explain the New Haven test results, Hor
nick opined in the telephone conversation that the
collective-bargaining agreement’s requirement of using writ
ten and oral examinations with a 60/40 composite score might
account for the statistical disparity. He also stated that
“[b]y not having anyone from within the [D]epartment re
view” the tests before they were administered—a limitation
the City had imposed to protect the security of the exam
questions—“you inevitably get things in there” that are
based on the source materials but are not relevant to New
Haven. Id., at A1034–A1035. Hornick suggested that test
ing candidates at an “assessment center” rather than using
written and oral examinations “might serve [the City’s]
needs better.” Id., at A1039–A1040. Hornick stated that
assessment centers, where candidates face real-world situa
tions and respond just as they would in the field, allow candi

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dates “to demonstrate how they would address a particular
problem as opposed to just verbally saying it or identifying
the correct option on a written test.” Ibid.
Hornick made clear that he was “not suggesting that [IOS]
somehow created a test that had adverse impacts that it
should not have had.” Id., at A1038. He described the IOS
examinations as “reasonably good test[s].” Id., at A1041.
He stated that the CSB’s best option might be to “certify the
list as it exists” and work to change the process for future
tests, including by “[r]ewriting the Civil Service Rules.”
Ibid. Hornick concluded his telephonic remarks by telling
the CSB that “for the future,” his company “certainly would
like to help you if we can.” Id., at A1046.
The second witness was Vincent Lewis, a fire program
specialist for the Department of Homeland Security and a
retired fire captain from Michigan. Lewis, who is black, had
looked “extensively” at the lieutenant exam and “a little less
extensively” at the captain exam. He stated that the candi
dates “should know that material.” Id., at A1048, A1052.
In Lewis’ view, the “questions were relevant for both
exams,” and the New Haven candidates had an advantage
because the study materials identified the particular book
chapters from which the questions were taken. In other de
partments, by contrast, “you had to know basically the . . .
entire book.” Id., at A1053. Lewis concluded that any dis
parate impact likely was due to a pattern that “usually
whites outperform some of the minorities on testing,” or that
“more whites . . . take the exam.” Id., at A1054.
The final witness was Janet Helms, a professor at Boston
College whose “primary area of expertise” is “not with fire
fighters per se” but in “race and culture as they influence
performance on tests and other assessment procedures.”
Id., at A1060. Helms expressly declined the CSB’s offer to
review the examinations. At the outset, she noted that
“regardless of what kind of written test we give in this coun
try . . . we can just about predict how many people will pass

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who are members of under-represented groups. And your
data are not that inconsistent with what predictions would
say were the case.” Id., at A1061. Helms nevertheless of
fered several “ideas about what might be possible factors” to
explain statistical differences in the results. Id., at A1062.
She concluded that because 67 percent of the respondents to
the job-analysis questionnaires were white, the test ques
tions might have favored white candidates, because “most of
the literature on firefighters shows that the different groups
perform the job differently.” Id., at A1063. Helms closed
by stating that no matter what test the City had adminis
tered, it would have revealed “a disparity between blacks
and whites, Hispanics and whites,” particularly on a written
test. Id., at A1072.
5
At the final CSB meeting, on March 18, Ude (the City’s
counsel) argued against certifying the examination results.
Discussing the City’s obligations under federal law, Ude
advised the CSB that a finding of adverse impact “is the be
ginning, not the end, of a review of testing procedures” to
determine whether they violated the disparate-impact pro
vision of Title VII. Ude focused the CSB on determining
“whether there are other ways to test for . . . those positions
that are equally valid with less adverse impact.” Id., at
A1101. Ude described Hornick as having said that the writ
ten examination “had one of the most severe adverse impacts
that he had seen” and that “there are much better alterna
tives to identifying [firefighting] skills.” Ibid. Ude offered
his “opinion that promotions . . . as a result of these tests
would not be consistent with federal law, would not be con
sistent with the purposes of our Civil Service Rules or our
Charter[,] nor is it in the best interests of the firefighters . . .
who took the exams.” Id., at A1103–A1104. He stated that
previous Department exams “have not had this kind of re
sult,” and that previous results had not been “challenged as

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having adverse impact, whereas we are assured that these
will be.” Id., at A1107, A1108.
CSB Chairman Segaloff asked Ude several questions
about the Title VII disparate-impact standard.
“CHAIRPERSON SEGALOFF: [M]y understanding
is the group . . . that is making to throw the exam out
has the burden of showing that there is out there an
exam that is reasonably probable or likely to have less
of an adverse impact. It’s not our burden to show that
there’s an exam out there that can be better. We’ve got
an exam. We’ve got a result. . . .
“MR. UDE: Mr. Chair, I point out that Dr. Hornick
said that. He said that there are other tests out there
that would have less adverse impact and that [would] be
more valid.
“CHAIRPERSON SEGALOFF: You think that’s
enough for us to throw this test upside-down . . . because
Dr. Hornick said it?
“MR. UDE: I think that by itself would be sufficient.
Yes. I also would point out that . . . it is the employer’s
burden to justify the use of the examination.” Id., at
A1108–A1109.
Karen DuBois-Walton, the City’s chief administrative offi
cer, spoke on behalf of Mayor John DeStefano and argued
against certifying the results. DuBois-Walton stated that
the results, when considered under the rule of three and ap
plied to then-existing captain and lieutenant vacancies, cre
ated a situation in which black and Hispanic candidates were
disproportionately excluded from opportunity. DuBois-
Walton also relied on Hornick’s testimony, asserting that
Hornick “made it extremely clear that . . . there are more
appropriate ways to assess one’s ability to serve” as a captain
or lieutenant. Id., at A1120.
Burgett (the human resources director) asked the CSB to
discard the examination results. She, too, relied on Hor

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nick’s statement to show the existence of alternative testing
methods, describing Hornick as having “started to point out
that alternative testing does exist” and as having “begun to
suggest that there are some different ways of doing written
examinations.” Id., at A1125, A1128.
Other witnesses addressed the CSB. They included the
president of the New Haven firefighters’ union, who sup
ported certification. He reminded the CSB that Hornick
“also concluded that the tests were reasonable and fair and
under the current structure to certify them.” Id., at A1137.
Firefighter Frank Ricci again argued for certification; he
stated that although “assessment centers in some cases show
less adverse impact,” id., at A1140, they were not available
alternatives for the current round of promotions. It would
take several years, Ricci explained, for the Department to
develop an assessment-center protocol and the accompanying
training materials. Id., at A1141. Lieutenant Matthew
Marcarelli, who had taken the captain’s exam, spoke in favor
of certification.
At the close of witness testimony, the CSB voted on a mo
tion to certify the examinations. With one member recused,
the CSB deadlocked 2 to 2, resulting in a decision not to
certify the results. Explaining his vote to certify the re
sults, Chairman Segaloff stated that “nobody convinced me
that we can feel comfortable that, in fact, there’s some likeli
hood that there’s going to be an exam designed that’s going
to be less discriminatory.” Id., at A1159–A1160.
C
The CSB’s decision not to certify the examination results
led to this lawsuit. The plaintiffs—who are the petitioners
here—are 17 white firefighters and 1 Hispanic firefighter
who passed the examinations but were denied a chance at
promotions when the CSB refused to certify the test results.
They include the named plaintiff, Frank Ricci, who addressed
the CSB at multiple meetings.

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Petitioners sued the City, Mayor DeStefano, DuBois-
Walton, Ude, Burgett, and the two CSB members who voted
against certification. Petitioners also named as a defendant
Boise Kimber, a New Haven resident who voiced strong op
position to certifying the results. Those individuals are re
spondents in this Court. Petitioners filed suit under Rev.
Stat. §§ 1979 and 1980, 42 U. S. C. §§ 1983 and 1985, alleging
that respondents, by arguing or voting against certifying the
results, violated and conspired to violate the Equal Protec
tion Clause of the Fourteenth Amendment. Petitioners also
filed timely charges of discrimination with the Equal Em
ployment Opportunity Commission (EEOC); upon the
EEOC’s issuing right-to-sue letters, petitioners amended
their complaint to assert that the City violated the
disparate-treatment prohibition contained in Title VII of the
Civil Rights Act of 1964, as amended. See 42 U. S. C.
§ 2000e–2(a).
The parties filed cross-motions for summary judgment.
Respondents asserted they had a good-faith belief that they
would have violated the disparate-impact prohibition in Title
VII, § 2000e–2(k), had they certified the examination results.
It follows, they maintained, that they cannot be held liable
under Title VII’s disparate-treatment provision for attempt
ing to comply with Title VII’s disparate-impact bar. Peti
tioners countered that respondents’ good-faith belief was not
a valid defense to allegations of disparate treatment and un
constitutional discrimination.
The District Court granted summary judgment for re
spondents. 554 F. Supp. 2d 142. It described petitioners’
argument as “boil[ing] down to the assertion that if [respond
ents] cannot prove that the disparities on the Lieutenant and
Captain exams were due to a particular flaw inherent in
those exams, then they should have certified the results be
cause there was no other alternative in place.” Id., at 156.
The District Court concluded that, “[n]otwithstanding the
shortcomings in the evidence on existing, effective alterna

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tives, it is not the case that [respondents] must certify a test
where they cannot pinpoint its deficiency explaining its dis
parate impact . . . simply because they have not yet formu
lated a better selection method.” Ibid. It also ruled that
respondents’ “motivation to avoid making promotions based
on a test with a racially disparate impact . . . does not, as a
matter of law, constitute discriminatory intent” under Title
VII. Id., at 160. The District Court rejected petitioners’
equal protection claim on the theory that respondents had
not acted because of “discriminatory animus” toward peti
tioners. Id., at 162. It concluded that respondents’ actions
were not “based on race” because “all applicants took the
same test, and the result was the same for all because the
test results were discarded and nobody was promoted.”
Id., at 161.
After full briefing and argument by the parties, the Court
of Appeals affirmed in a one-paragraph, unpublished sum
mary order; it later withdrew that order, issuing in its place
a nearly identical, one-paragraph per curiam opinion adopt
ing the District Court’s reasoning. 530 F. 3d 87 (CA2 2008).
Three days later, the Court of Appeals voted 7 to 6 to deny
rehearing en banc, over written dissents by Chief Judge Ja
cobs and Judge Cabranes. 530 F. 3d 88.
This action presents two provisions of Title VII to be in
terpreted and reconciled, with few, if any, precedents in the
courts of appeals discussing the issue. Depending on the
resolution of the statutory claim, a fundamental constitu
tional question could also arise. We found it prudent and
appropriate to grant certiorari. 555 U. S. 1091 (2009). We
now reverse.
II
Petitioners raise a statutory claim, under the disparate
treatment prohibition of Title VII, and a constitutional claim,
under the Equal Protection Clause of the Fourteenth
Amendment. A decision for petitioners on their statutory
claim would provide the relief sought, so we consider it first.

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See Atkins v. Parker, 472 U. S. 115, 123 (1985); Escambia
County v. McMillan, 466 U. S. 48, 51 (1984) (per curiam)
(“[N]ormally the Court will not decide a constitutional ques
tion if there is some other ground upon which to dispose of
the case”).
A
Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e
et seq., as amended, prohibits employment discrimination on
the basis of race, color, religion, sex, or national origin.
Title VII prohibits both intentional discrimination (known as
“disparate treatment”) as well as, in some cases, practices
that are not intended to discriminate but in fact have a dis
proportionately adverse effect on minorities (known as “dis
parate impact”).
As enacted in 1964, Title VII’s principal nondiscrimination
provision held employers liable only for disparate treatment.
That section retains its original wording today. It makes it
unlawful for an employer “to fail or refuse to hire or to dis
charge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, con
ditions, or privileges of employment, because of such individ
ual’s race, color, religion, sex, or national origin.” § 2000e–
2(a)(1); see also 78 Stat. 255. Disparate-treatment cases
present “the most easily understood type of discrimination,”
Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977),
and occur where an employer has “treated [a] particular per
son less favorably than others because of ” a protected trait,
Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 985–986
(1988). A disparate-treatment plaintiff must establish “that
the defendant had a discriminatory intent or motive” for tak
ing a job-related action. Id., at 986.
The Civil Rights Act of 1964 did not include an express
prohibition on policies or practices that produce a disparate
impact. But in Griggs v. Duke Power Co., 401 U. S. 424
(1971), the Court interpreted the Act to prohibit, in some
cases, employers’ facially neutral practices that, in fact, are

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“discriminatory in operation.” Id., at 431. The Griggs
Court stated that the “touchstone” for disparate-impact lia
bility is the lack of “business necessity”: “If an employment
practice which operates to exclude [minorities] cannot be
shown to be related to job performance, the practice is pro
hibited.” Ibid.; see also id., at 432 (employer’s burden to
demonstrate that practice has “a manifest relationship to the
employment in question”); Albemarle Paper Co. v. Moody,
422 U. S. 405, 425 (1975). Under those precedents, if an em
ployer met its burden by showing that its practice was job
related, the plaintiff was required to show a legitimate alter
native that would have resulted in less discrimination. Ibid.
(allowing complaining party to show “that other tests or se
lection devices, without a similarly undesirable racial effect,
would also serve the employer’s legitimate interest”).
Twenty years after Griggs, the Civil Rights Act of 1991,
105 Stat. 1071, was enacted. The Act included a provision
codifying the prohibition on disparate-impact discrimination.
That provision is now in force along with the disparate
treatment section already noted. Under the disparate
impact statute, a plaintiff establishes a prima facie violation
by showing that an employer uses “a particular employment
practice that causes a disparate impact on the basis of race,
color, religion, sex, or national origin.” 42 U. S. C. § 2000e–
2(k)(1)(A)(i). An employer may defend against liability by
demonstrating that the practice is “job related for the posi
tion in question and consistent with business necessity.”
Ibid. Even if the employer meets that burden, however, a
plaintiff may still succeed by showing that the employer re
fuses to adopt an available alternative employment practice
that has less disparate impact and serves the employer’s le
gitimate needs. §§ 2000e–2(k)(1)(A)(ii) and (C).
B
Petitioners allege that when the CSB refused to certify
the captain and lieutenant exam results based on the race of

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the successful candidates, it discriminated against them in
violation of Title VII’s disparate-treatment provision. The
City counters that its decision was permissible because the
tests “appear[ed] to violate Title VII’s disparate-impact pro
visions.” Brief for Respondents 12.
Our analysis begins with this premise: The City’s actions
would violate the disparate-treatment prohibition of Title
VII absent some valid defense. All the evidence demon
strates that the City chose not to certify the examination
results because of the statistical disparity based on race—
i. e., how minority candidates had performed when compared
to white candidates. As the District Court put it, the City
rejected the test results because “too many whites and not
enough minorities would be promoted were the lists to be
certified.” 554 F. Supp. 2d, at 152; see also ibid. (respond
ents’ “own arguments . . . show that the City’s reasons for
advocating non-certification were related to the racial distri
bution of the results”). Without some other justification,
this express, race-based decisionmaking violates Title VII’s
command that employers cannot take adverse employment
actions because of an individual’s race. See § 2000e–2(a)(1).
The District Court did not adhere to this principle, how
ever. It held that respondents’ “motivation to avoid making
promotions based on a test with a racially disparate impact
. . . does not, as a matter of law, constitute discriminatory
intent.” Id., at 160. And the Government makes a similar
argument in this Court. It contends that the “structure of
Title VII belies any claim that an employer’s intent to com
ply with Title VII’s disparate-impact provisions constitutes
prohibited discrimination on the basis of race.” Brief for
United States as Amicus Curiae 11. But both of those
statements turn upon the City’s objective—avoiding
disparate-impact liability—while ignoring the City’s conduct
in the name of reaching that objective. Whatever the City’s
ultimate aim—however well intentioned or benevolent it
might have seemed—the City made its employment decision

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because of race. The City rejected the test results solely
because the higher scoring candidates were white. The
question is not whether that conduct was discriminatory but
whether the City had a lawful justification for its race
based action.
We consider, therefore, whether the purpose to avoid
disparate-impact liability excuses what otherwise would
be prohibited disparate-treatment discrimination. Courts
often confront cases in which statutes and principles point
in different directions. Our task is to provide guidance to
employers and courts for situations when these two prohibi
tions could be in conflict absent a rule to reconcile them. In
providing this guidance our decision must be consistent with
the important purpose of Title VII—that the workplace be
an environment free of discrimination, where race is not a
barrier to opportunity.
With these principles in mind, we turn to the parties’ pro
posed means of reconciling the statutory provisions. Peti
tioners take a strict approach, arguing that under Title VII,
it cannot be permissible for an employer to take race-based
adverse employment actions in order to avoid disparate
impact liability—even if the employer knows its practice vio
lates the disparate-impact provision. See Brief for Petition
ers 43. Petitioners would have us hold that, under Title
VII, avoiding unintentional discrimination cannot justify in
tentional discrimination. That assertion, however, ignores
the fact that, by codifying the disparate-impact provision in
1991, Congress has expressly prohibited both types of dis
crimination. We must interpret the statute to give effect to
both provisions where possible. See, e. g., United States v.
Atlantic Research Corp., 551 U. S. 128, 137 (2007) (rejecting
an interpretation that would render a statutory provision
“a dead letter”). We cannot accept petitioners’ broad and
inflexible formulation.
Petitioners next suggest that an employer in fact must be
in violation of the disparate-impact provision before it can

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use compliance as a defense in a disparate-treatment suit.
Again, this is overly simplistic and too restrictive of Title
VII’s purpose. The rule petitioners offer would run counter
to what we have recognized as Congress’ intent that “volun
tary compliance” be “the preferred means of achieving the
objectives of Title VII.” Firefighters v. Cleveland, 478 U. S.
501, 515 (1986); see also Wygant v. Jackson Bd. of Ed., 476
U. S. 267, 290 (1986) (O’Connor, J., concurring in part and
concurring in judgment). Forbidding employers to act un
less they know, with certainty, that a practice violates the
disparate-impact provision would bring compliance efforts to
a near standstill. Even in the limited situations when this
restricted standard could be met, employers likely would
hesitate before taking voluntary action for fear of later being
proved wrong in the course of litigation and then held to
account for disparate treatment.
At the opposite end of the spectrum, respondents and
the Government assert that an employer’s good-faith belief
that its actions are necessary to comply with Title VII’s
disparate-impact provision should be enough to justify race
conscious conduct. But the original, foundational prohibi
tion of Title VII bars employers from taking adverse action
“because of . . . race.” § 2000e–2(a)(1). And when Congress
codified the disparate-impact provision in 1991, it made no
exception to disparate-treatment liability for actions taken in
a good-faith effort to comply with the new, disparate-impact
provision in subsection (k). Allowing employers to violate
the disparate-treatment prohibition based on a mere good
faith fear of disparate-impact liability would encourage race
based action at the slightest hint of disparate impact. A
minimal standard could cause employers to discard the re
sults of lawful and beneficial promotional examinations even
where there is little if any evidence of disparate-impact dis
crimination. That would amount to a de facto quota system,
in which a “focus on statistics . . . could put undue pressure
on employers to adopt inappropriate prophylactic measures.”

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Watson, 487 U. S., at 992 (plurality opinion). Even worse,
an employer could discard test results (or other employment
practices) with the intent of obtaining the employer’s pre
ferred racial balance. That operational principle could not
be justified, for Title VII is express in disclaiming any inter
pretation of its requirements as calling for outright racial
balancing. § 2000e–2( j). The purpose of Title VII “is to
promote hiring on the basis of job qualifications, rather than
on the basis of race or color.” Griggs, 401 U. S., at 434.
In searching for a standard that strikes a more appro
priate balance, we note that this Court has considered cases
similar to this one, albeit in the context of the Equal Protec
tion Clause of the Fourteenth Amendment. The Court has
held that certain government actions to remedy past racial
discrimination—actions that are themselves based on race—
are constitutional only where there is a “ ‘strong basis in evi
dence’ ” that the remedial actions were necessary. Rich
mond v. J. A. Croson Co., 488 U. S. 469, 500 (1989) (quoting
Wygant, supra, at 277 (plurality opinion)). This suit does
not call on us to consider whether the statutory constraints
under Title VII must be parallel in all respects to those
under the Constitution. That does not mean the constitu
tional authorities are irrelevant, however. Our cases dis
cussing constitutional principles can provide helpful guid
ance in this statutory context. See Watson, supra, at 993
(plurality opinion).
Writing for a plurality in Wygant and announcing the
strong-basis-in-evidence standard, Justice Powell recognized
the tension between eliminating segregation and discrimina
tion on the one hand and doing away with all governmentally
imposed discrimination based on race on the other. 476
U. S., at 277. The plurality stated that those “related consti
tutional duties are not always harmonious,” and that “recon
ciling them requires . . . employers to act with extraordinary
care.” Ibid. The plurality required a strong basis in evi
dence because “[e]videntiary support for the conclusion that

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remedial action is warranted becomes crucial when the re
medial program is challenged in court by nonminority em
ployees.” Ibid. The Court applied the same standard in
Croson, observing that “an amorphous claim that there has
been past discrimination . . . cannot justify the use of an
unyielding racial quota.” 488 U. S., at 499.
The same interests are at work in the interplay between
the disparate-treatment and disparate-impact provisions of
Title VII. Congress has imposed liability on employers for
unintentional discrimination in order to rid the workplace of
“practices that are fair in form, but discriminatory in opera
tion.” Griggs, supra, at 431. But it has also prohibited em
ployers from taking adverse employment actions “because
of ” race. § 2000e–2(a)(1). Applying the strong-basis-in
evidence standard to Title VII gives effect to both the
disparate-treatment and disparate-impact provisions, allow
ing violations of one in the name of compliance with the other
only in certain, narrow circumstances. The standard leaves
ample room for employers’ voluntary compliance efforts,
which are essential to the statutory scheme and to Congress’
efforts to eradicate workplace discrimination. See Fire
fighters, supra, at 515. And the standard appropriately
constrains employers’ discretion in making race-based deci
sions: It limits that discretion to cases in which there is a
strong basis in evidence of disparate-impact liability, but it
is not so restrictive that it allows employers to act only when
there is a provable, actual violation.
Resolving the statutory conflict in this way allows the
disparate-impact prohibition to work in a manner that is con
sistent with other provisions of Title VII, including the pro
hibition on adjusting employment-related test scores on the
basis of race. See § 2000e–2(l). Examinations like those
administered by the City create legitimate expectations on
the part of those who took the tests. As is the case with
any promotion exam, some of the firefighters here invested
substantial time, money, and personal commitment in prepar

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ing for the tests. Employment tests can be an important
part of a neutral selection system that safeguards against
the very racial animosities Title VII was intended to pre
vent. Here, however, the firefighters saw their efforts in
validated by the City in sole reliance upon race-based
statistics.
If an employer cannot rescore a test based on the candi
dates’ race, § 2000e–2(l), then it follows a fortiori that it may
not take the greater step of discarding the test altogether to
achieve a more desirable racial distribution of promotion
eligible candidates—absent a strong basis in evidence that
the test was deficient and that discarding the results is nec
essary to avoid violating the disparate-impact provision.
Restricting an employer’s ability to discard test results (and
thereby discriminate against qualified candidates on the
basis of their race) also is in keeping with Title VII’s express
protection of bona fide promotional examinations. See
§ 2000e–2(h) (“[N]or shall it be an unlawful employment prac
tice for an employer to give and to act upon the results of
any professionally developed ability test provided that such
test, its administration or action upon the results is not de
signed, intended or used to discriminate because of race”);
cf. AT&T Corp. v. Hulteen, 556 U. S. 701, 710 (2009).
For the foregoing reasons, we adopt the strong-basis-in
evidence standard as a matter of statutory construction to
resolve any conflict between the disparate-treatment and
disparate-impact provisions of Title VII.
Our statutory holding does not address the constitutional
ity of the measures taken here in purported compliance with
Title VII. We also do not hold that meeting the strong
basis-in-evidence standard would satisfy the Equal Protec
tion Clause in a future case. As we explain below, because
respondents have not met their burden under Title VII, we
need not decide whether a legitimate fear of disparate impact
is ever sufficient to justify discriminatory treatment under
the Constitution.

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Nor do we question an employer’s affirmative efforts to
ensure that all groups have a fair opportunity to apply for
promotions and to participate in the process by which promo
tions will be made. But once that process has been estab
lished and employers have made clear their selection criteria,
they may not then invalidate the test results, thus upsetting
an employee’s legitimate expectation not to be judged on the
basis of race. Doing so, absent a strong basis in evidence of
an impermissible disparate impact, amounts to the sort of
racial preference that Congress has disclaimed, § 2000e–2( j),
and is antithetical to the notion of a workplace where individ
uals are guaranteed equal opportunity regardless of race.
Title VII does not prohibit an employer from considering,
before administering a test or practice, how to design that
test or practice in order to provide a fair opportunity for all
individuals, regardless of their race. And when, during the
test-design stage, an employer invites comments to ensure
the test is fair, that process can provide a common ground
for open discussions toward that end. We hold only that,
under Title VII, before an employer can engage in inten
tional discrimination for the asserted purpose of avoiding or
remedying an unintentional disparate impact, the employer
must have a strong basis in evidence to believe it will be
subject to disparate-impact liability if it fails to take the
race-conscious, discriminatory action.
C
The City argues that, even under the strong-basis-in
evidence standard, its decision to discard the examination
results was permissible under Title VII. That is incorrect.
Even if respondents were motivated as a subjective matter
by a desire to avoid committing disparate-impact discrimina
tion, the record makes clear there is no support for the con
clusion that respondents had an objective, strong basis in
evidence to find the tests inadequate, with some consequent
disparate-impact liability in violation of Title VII.

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586 RICCI v. DeSTEFANO
Opinion of the Court
On this basis, we conclude that petitioners have met their
obligation to demonstrate that there is “no genuine issue as
to any material fact” and that they are “entitled to judgment
as a matter of law.” Fed. Rule Civ. Proc. 56(c). On a mo
tion for summary judgment, “facts must be viewed in the
light most favorable to the nonmoving party only if there is
a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550
U. S. 372, 380 (2007). “Where the record taken as a whole
could not lead a rational trier of fact to find for the nonmov
ing party, there is no genuine issue for trial.” Matsushita
Elec. Industrial Co. v. Zenith Radio Corp., 475 U. S. 574, 587
(1986) (internal quotation marks omitted). In this Court,
the City’s only defense is that it acted to comply with Title
VII’s disparate-impact provision. To succeed on their mo
tion, then, petitioners must demonstrate that there can be
no genuine dispute that there was no strong basis in evidence
for the City to conclude it would face disparate-impact liabil
ity if it certified the examination results. See Celotex Corp.
v. Catrett, 477 U. S. 317, 324 (1986) (where the nonmoving
party “will bear the burden of proof at trial on a dispositive
issue,” the nonmoving party bears the burden of produc
tion under Rule 56 to “designate specific facts showing that
there is a genuine issue for trial” (internal quotation marks
omitted)).
The racial adverse impact here was significant, and peti
tioners do not dispute that the City was faced with a prima
facie case of disparate-impact liability. On the captain
exam, the pass rate for white candidates was 64 percent but
was 37.5 percent for both black and Hispanic candidates. On
the lieutenant exam, the pass rate for white candidates was
58.1 percent; for black candidates, 31.6 percent; and for His
panic candidates, 20 percent. The pass rates of minorities,
which were approximately one-half the pass rates for white
candidates, fall well below the 80-percent standard set by
the EEOC to implement the disparate-impact provision of
Title VII. See 29 CFR § 1607.4(D) (2008) (selection rate that

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587 Cite as: 557 U. S. 557 (2009)
Opinion of the Court
is less than 80 percent “of the rate for the group with the
highest rate will generally be regarded by the Federal en
forcement agencies as evidence of adverse impact”); Watson,
487 U. S., at 995–996, n. 3 (plurality opinion) (EEOC’s 80
percent standard is “a rule of thumb for the courts”). Based
on how the passing candidates ranked and an application
of the “rule of three,” certifying the examinations would
have meant that the City could not have considered black
candidates for any of the then-vacant lieutenant or captain
positions.
Based on the degree of adverse impact reflected in the
results, respondents were compelled to take a hard look at
the examinations to determine whether certifying the re
sults would have had an impermissible disparate impact.
The problem for respondents is that a prima facie case of
disparate-impact liability—essentially, a threshold showing
of a significant statistical disparity, Connecticut v. Teal, 457
U. S. 440, 446 (1982), and nothing more—is far from a strong
basis in evidence that the City would have been liable under
Title VII had it certified the results. That is because the
City could be liable for disparate-impact discrimination only
if the examinations were not job related and consistent with
business necessity, or if there existed an equally valid, less
discriminatory alternative that served the City’s needs but
that the City refused to adopt. §§ 2000e–2(k)(1)(A), (C).
We conclude there is no strong basis in evidence to establish
that the tests were deficient in either of these respects. We
address each of the two points in turn, based on the record
developed by the parties through discovery—a record that
concentrates in substantial part on the statements various
witnesses made to the CSB.
1
There is no genuine dispute that the examinations were
job related and consistent with business necessity. The
City’s assertions to the contrary are “blatantly contradicted

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588 RICCI v. DeSTEFANO
Opinion of the Court
by the record.” Scott, supra, at 380. The CSB heard state
ments from Chad Legel (the IOS vice president) as well as
City officials outlining the detailed steps IOS took to develop
and administer the examinations. IOS devised the written
examinations, which were the focus of the CSB’s inquiry,
after painstaking analyses of the captain and lieutenant posi
tions—analyses in which IOS made sure that minorities were
overrepresented. And IOS drew the questions from source
material approved by the Department. Of the outside wit
nesses who appeared before the CSB, only one, Vincent
Lewis, had reviewed the examinations in any detail, and he
was the only one with any firefighting experience. Lewis
stated that the “questions were relevant for both exams.”
CA2 App. A1053. The only other witness who had seen any
part of the examinations, Christopher Hornick (a competi
tor of IOS’), criticized the fact that no one within the De
partment had reviewed the tests—a condition imposed by
the City to protect the integrity of the exams in light of
past alleged security breaches. But Hornick stated that
the exams “appea[r] to be . . . reasonably good” and rec
ommended that the CSB certify the results. Id., at A1041.
Arguing that the examinations were not job related, re
spondents note some candidates’ complaints that certain ex
amination questions were contradictory or did not specifi
cally apply to firefighting practices in New Haven. But
Legel told the CSB that IOS had addressed those concerns—
that it entertained “a handful” of challenges to the validity
of particular examination questions, that it “reviewed those
challenges and provided feedback [to the City] as to what we
thought the best course of action was,” and that he could
remember at least one question IOS had thrown out (“offer
[ing] credit to everybody for that particular question”). Id.,
at A955–A957. For his part, Hornick said he “suspect[ed]
that some of the criticisms . . . [leveled] by candidates” were
not valid. Id., at A1035.

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Opinion of the Court
The City, moreover, turned a blind eye to evidence that
supported the exams’ validity. Although the City’s contract
with IOS contemplated that IOS would prepare a technical
report consistent with EEOC guidelines for examination
validity studies, the City made no request for its report.
After the January 2004 meeting between Legel and some of
the City-official respondents, in which Legel defended the
examinations, the City sought no further information from
IOS, save its appearance at a CSB meeting to explain how
it developed and administered the examinations. IOS stood
ready to provide respondents with detailed information to
establish the validity of the exams, but respondents did not
accept that offer.
2
Respondents also lacked a strong basis in evidence of an
equally valid, less discriminatory testing alternative that the
City, by certifying the examination results, would necessar
ily have refused to adopt. Respondents raise three argu
ments to the contrary, but each argument fails. First, re
spondents refer to testimony before the CSB that a different
composite-score calculation—weighting the written and oral
examination scores 30/70—would have allowed the City to
consider two black candidates for then-open lieutenant posi
tions and one black candidate for then-open captain positions.
(The City used a 60/40 weighting as required by its contract
with the New Haven firefighters’ union.) But respondents
have produced no evidence to show that the 60/40 weighting
was indeed arbitrary. In fact, because that formula was the
result of a union-negotiated collective-bargaining agreement,
we presume the parties negotiated that weighting for a ra
tional reason. Nor does the record contain any evidence
that the 30/70 weighting would be an equally valid way
to determine whether candidates possess the proper mix of
job knowledge and situational skills to earn promotions.
Changing the weighting formula, moreover, could well have
violated Title VII’s prohibition of altering test scores on the

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590 RICCI v. DeSTEFANO
Opinion of the Court
basis of race. See § 2000e–2(l). On this record, there is no
basis to conclude that a 30/70 weighting was an equally valid
alternative the City could have adopted.
Second, respondents argue that the City could have
adopted a different interpretation of the “rule of three” that
would have produced less discriminatory results. The rule,
in the New Haven city charter, requires the City to promote
only from “those applicants with the three highest scores”
on a promotional examination. New Haven, Conn., Code of
Ordinances, Tit. I, Art. XXX, § 160 (1993). A state court
has interpreted the charter to prohibit so-called “banding”—
the City’s previous practice of rounding scores to the near
est whole number and considering all candidates with the
same whole-number score as being of one rank. Banding
allowed the City to consider three ranks of candidates (with
the possibility of multiple candidates filling each rank) for
purposes of the rule of three. See Kelly v. New Haven,
No. CV000444614, 2004 WL 114377, *3 (Conn. Super. Ct., Jan.
9, 2004). Respondents claim that employing banding here
would have made four black and one Hispanic candidates eli
gible for then-open lieutenant and captain positions.
A state court’s prohibition of banding, as a matter of mu
nicipal law under the charter, may not eliminate banding as a
valid alternative under Title VII. See 42 U. S. C. § 2000e–7.
We need not resolve that point, however. Here, banding
was not a valid alternative for this reason: Had the City re
viewed the exam results and then adopted banding to make
the minority test scores appear higher, it would have vio
lated Title VII’s prohibition of adjusting test results on the
basis of race. § 2000e–2(l); see also Chicago Firefighters
Local 2 v. Chicago, 249 F. 3d 649, 656 (CA7 2001) (Posner, J.)
(“We have no doubt that if banding were adopted in order to
make lower black scores seem higher, it would indeed be . . .
forbidden”). As a matter of law, banding was not an alter
native available to the City when it was considering whether
to certify the examination results.

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Opinion of the Court
Third, and finally, respondents refer to statements by Hor
nick in his telephone interview with the CSB regarding al
ternatives to the written examinations. Hornick stated his
“belie[f]” that an “assessment center process,” which would
have evaluated candidates’ behavior in typical job tasks,
“would have demonstrated less adverse impac[t].” CA2
App. A1039. But Hornick’s brief mention of alternative
testing methods, standing alone, does not raise a genuine
issue of material fact that assessment centers were available
to the City at the time of the examinations and that they
would have produced less adverse impact. Other state
ments to the CSB indicated that the Department could not
have used assessment centers for the 2003 examinations.
Supra, at 574. And although respondents later argued to
the CSB that Hornick had pushed the City to reject the test
results, supra, at 572–574, the truth is that the essence of
Hornick’s remarks supported its certifying the test results.
See Scott, 550 U. S., at 380. Hornick stated that adverse
impact in standardized testing “has been in existence since
the beginning of testing,” CA2 App. A1037, and that the dis
parity in New Haven’s test results was “somewhat higher
but generally in the range that we’ve seen professionally,”
id., at A1030–A1031. He told the CSB he was “not suggest
ing” that IOS “somehow created a test that had adverse im
pacts that it should not have had.” Id., at A1038. And he
suggested that the CSB should “certify the list as it exists.”
Id., at A1041.
Especially when it is noted that the strong-basis-in
evidence standard applies, respondents cannot create a genu
ine issue of fact based on a few stray (and contradictory)
statements in the record. And there is no doubt respond
ents fall short of the mark by relying entirely on isolated
statements by Hornick. Hornick had not “stud[ied] the test
at length or in detail.” Id., at A1030. And as he told the
CSB, he is a “direct competitor” of IOS’. Id., at A1029.
The remainder of his remarks showed that Hornick’s pri

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Opinion of the Court
mary concern—somewhat to the frustration of CSB mem
bers—was marketing his services for the future, not com
menting on the results of the tests the City had already
administered. See, e. g., id., at A1026, A1027, A1032, A1036,
A1040, A1041. Hornick’s hinting had its intended effect:
The City has since hired him as a consultant. As for the
other outside witnesses who spoke to the CSB, Vincent
Lewis (the retired fire captain) thought the CSB should cer
tify the test results. And Janet Helms (the Boston College
professor) declined to review the examinations and told the
CSB that, as a society, “we need to develop a new way of
assessing people.” Id., at A1073. That task was beyond
the reach of the CSB, which was concerned with the ade
quacy of the test results before it.
3
On the record before us, there is no genuine dispute that
the City lacked a strong basis in evidence to believe it would
face disparate-impact liability if it certified the examination
results. In other words, there is no evidence—let alone the
required strong basis in evidence—that the tests were
flawed because they were not job related or because other,
equally valid and less discriminatory tests were available to
the City. Fear of litigation alone cannot justify an employ
er’s reliance on race to the detriment of individuals who
passed the examinations and qualified for promotions. The
City’s discarding the test results was impermissible under
Title VII, and summary judgment is appropriate for petition
ers on their disparate-treatment claim.
* * *
The record in this litigation documents a process that, at
the outset, had the potential to produce a testing procedure
that was true to the promise of Title VII: No individual
should face workplace discrimination based on race. Re

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Opinion of the Court
spondents thought about promotion qualifications and rele
vant experience in neutral ways. They were careful to en
sure broad racial participation in the design of the test itself
and its administration. As we have discussed at length, the
process was open and fair.
The problem, of course, is that after the tests were com
pleted, the raw racial results became the predominant ra
tionale for the City’s refusal to certify the results. The in
jury arises in part from the high, and justified, expectations
of the candidates who had participated in the testing process
on the terms the City had established for the promotional
process. Many of the candidates had studied for months, at
considerable personal and financial expense, and thus the in
jury caused by the City’s reliance on raw racial statistics at
the end of the process was all the more severe. Confronted
with arguments both for and against certifying the test
results—and threats of a lawsuit either way—the City was
required to make a difficult inquiry. But its hearings
produced no strong evidence of a disparate-impact violation,
and the City was not entitled to disregard the tests based
solely on the racial disparity in the results.
Our holding today clarifies how Title VII applies to resolve
competing expectations under the disparate-treatment and
disparate-impact provisions. If, after it certifies the test re
sults, the City faces a disparate-impact suit, then in light of
our holding today it should be clear that the City would avoid
disparate-impact liability based on the strong basis in evi
dence that, had it not certified the results, it would have
been subject to disparate-treatment liability.
Petitioners are entitled to summary judgment on their
Title VII claim, and we therefore need not decide the under
lying constitutional question. The judgment of the Court of
Appeals is reversed, and the cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.

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594 RICCI v. DeSTEFANO
Scalia, J., concurring
Justice Scalia, concurring.
I join the Court’s opinion in full, but write separately to
observe that its resolution of this dispute merely postpones
the evil day on which the Court will have to confront the
question: Whether, or to what extent, are the disparate
impact provisions of Title VII of the Civil Rights Act of 1964
consistent with the Constitution’s guarantee of equal protec
tion? The question is not an easy one. See generally Pri
mus, Equal Protection and Disparate Impact: Round Three,
117 Harv. L. Rev. 493 (2003).
The difficulty is this: Whether or not Title VII’s
disparate-treatment provisions forbid “remedial” race-based
actions when a disparate-impact violation would not other
wise result—the question resolved by the Court today—it is
clear that Title VII not only permits but affirmatively re
quires such actions when a disparate-impact violation would
otherwise result. See ante, at 580–581. But if the Federal
Government is prohibited from discriminating on the basis
of race, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), then
surely it is also prohibited from enacting laws mandating
that third parties—e. g., employers, whether private, state,
or municipal—discriminate on the basis of race. See Bu
chanan v. Warley, 245 U. S. 60, 78–82 (1917). As the facts of
these cases illustrate, Title VII’s disparate-impact provisions
place a racial thumb on the scales, often requiring employers
to evaluate the racial outcomes of their policies, and to make
decisions based on (because of) those racial outcomes. That
type of racial decisionmaking is, as the Court explains, dis
criminatory. See ante, at 578–579; Personnel Administra
tor of Mass. v. Feeney, 442 U. S. 256, 279 (1979).
To be sure, the disparate-impact laws do not mandate im
position of quotas, but it is not clear why that should provide
a safe harbor. Would a private employer not be guilty of
unlawful discrimination if he refrained from establishing a
racial hiring quota but intentionally designed his hiring
practices to achieve the same end? Surely he would. In

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Scalia, J., concurring
tentional discrimination is still occurring, just one step up
the chain. Government compulsion of such design would
therefore seemingly violate equal protection principles.
Nor would it matter that Title VII requires consideration of
race on a wholesale, rather than retail, level. “[T]he Gov
ernment must treat citizens as individuals, not as simply
components of a racial, religious, sexual or national class.”
Miller v. Johnson, 515 U. S. 900, 911 (1995) (internal quota
tion marks omitted). And of course the purportedly benign
motive for the disparate-impact provisions cannot save the
statute. See Adarand Constructors, Inc. v. Pen˜ a, 515 U. S.
200, 227 (1995).
It might be possible to defend the law by framing it as
simply an evidentiary tool used to identify genuine, inten
tional discrimination—to “smoke out,” as it were, disparate
treatment. See Primus, supra, at 498–499, 520–521. Dis
parate impact is sometimes (though not always, see Watson
v. Fort Worth Bank & Trust, 487 U. S. 977, 992 (1988) (plural
ity opinion)) a signal of something illicit, so a regulator might
allow statistical disparities to play some role in the eviden
tiary process. Cf. McDonnell Douglas Corp. v. Green, 411
U. S. 792, 802–803 (1973). But arguably the disparate
impact provisions sweep too broadly to be fairly character
ized in such a fashion—since they fail to provide an affirma
tive defense for good-faith (i. e., nonracially motivated)
conduct, or perhaps even for good faith plus hiring standards
that are entirely reasonable. See post, at 621–623, and n. 3
(Ginsburg, J., dissenting) (describing the demanding nature
of the “business necessity” defense). This is a question that
this Court will have to consider in due course. It is one
thing to free plaintiffs from proving an employer’s illicit in
tent, but quite another to preclude the employer from prov
ing that its motives were pure and its actions reasonable.
The Court’s resolution of these cases makes it unnecessary
to resolve these matters today. But the war between dis
parate impact and equal protection will be waged sooner or

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596 RICCI v. DeSTEFANO
Alito, J., concurring
later, and it behooves us to begin thinking about how—and
on what terms—to make peace between them.
Justice Alito, with whom Justice Scalia and Justice
Thomas join, concurring.
I join the Court’s opinion in full. I write separately only
because the dissent, while claiming that “[t]he Court’s recita
tion of the facts leaves out important parts of the story,”
post, at 609 (opinion of Ginsburg, J.), provides an incomplete
description of the events that led to New Haven’s decision to
reject the results of its exam. The dissent’s omissions are
important because, when all of the evidence in the record is
taken into account, it is clear that, even if the legal analysis
in Parts II and III–A of the dissent were accepted, affirm
ance of the decision below is untenable.
I
When an employer in a disparate-treatment case under
Title VII of the Civil Rights Act of 1964 claims that an em
ployment decision, such as the refusal to promote, was based
on a legitimate reason, two questions—one objective and one
subjective—must be decided. The first, objective question
is whether the reason given by the employer is one that is
legitimate under Title VII. See St. Mary’s Honor Center v.
Hicks, 509 U. S. 502, 506–507 (1993). If the reason provided
by the employer is not legitimate on its face, the employer
is liable. Id., at 509. The second, subjective question con
cerns the employer’s intent. If an employer offers a facially
legitimate reason for its decision but it turns out that this
explanation was just a pretext for discrimination, the em
ployer is again liable. See id., at 510–512.
The question on which the opinion of the Court and the
dissenting opinion disagree concerns the objective compo
nent of the determination that must be made when an em
ployer justifies an employment decision, like the one made in

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Alito, J., concurring
this litigation, on the ground that a contrary decision would
have created a risk of disparate-impact liability. The Court
holds—and I entirely agree—that concern about disparate
impact liability is a legitimate reason for a decision of the
type involved here only if there was a “strong basis in evi
dence to find the tests inadequate.” Ante, at 585. The
Court ably demonstrates that in this litigation no reasonable
jury could find that the city of New Haven (City) possessed
such evidence and therefore summary judgment for petition
ers is required. Because the Court correctly holds that re
spondents cannot satisfy this objective component, the Court
has no need to discuss the question of respondents’ actual
intent. As the Court puts it, “[e]ven if respondents were
motivated as a subjective matter by a desire to avoid com
mitting disparate-impact discrimination, the record makes
clear there is no support for the conclusion that respondents
had an objective, strong basis in evidence to find the tests
inadequate.” Ibid.
The dissent advocates a different objective component of
the governing standard. According to the dissent, the ob
jective component should be whether the evidence provided
“good cause” for the decision, post, at 625, and the dissent
argues—incorrectly, in my view—that no reasonable juror
could fail to find that such evidence was present here. But
even if the dissent were correct on this point, I assume
that the dissent would not countenance summary judgment
for respondents if respondents’ professed concern about
disparate-impact litigation was simply a pretext. There
fore, the decision below, which sustained the entry of sum
mary judgment for respondents, cannot be affirmed unless
no reasonable jury could find that the City’s asserted reason
for scrapping its test—concern about disparate-impact liabil
ity—was a pretext and that the City’s real reason was illegit
imate, namely, the desire to placate a politically important
racial constituency.

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Alito, J., concurring
II
A
As initially described by the dissent, see post, at 609–618,
the process by which the City reached the decision not to
accept the test results was open, honest, serious, and deliber
ative. But even the District Court admitted that “a jury
could rationally infer that city officials worked behind the
scenes to sabotage the promotional examinations because
they knew that, were the exams certified, the Mayor would
incur the wrath of [Rev. Boise] Kimber and other influential
leaders of New Haven’s African-American community.” 554
F. Supp. 2d 142, 162 (Conn. 2006) (internal quotation marks
omitted), summarily aff ’d, 530 F. 3d 87 (CA2 2008) (per
curiam).
This admission finds ample support in the record. Rev.
Boise Kimber, to whom the District Court referred, is a po
litically powerful New Haven pastor and a self-professed
“ ‘kingmaker.’ ” App. to Pet. for Cert. in No. 07–1428,
p. 906a; see also id., at 909a. On one occasion, “[i]n front of
TV cameras, he threatened a race riot during the murder
trial of the black man arrested for killing white Yalie Chris
tian Prince. He continues to call whites racist if they ques
tion his actions.” Id., at 931a.
Reverend Kimber’s personal ties with seven-term New
Haven Mayor John DeStefano (Mayor) stretch back more
than a decade. In 1996, for example, Mayor DeStefano testi
fied for Reverend Kimber as a character witness when Rev
erend Kimber—then the manager of a funeral home—was
prosecuted and convicted for stealing prepaid funeral ex
penses from an elderly woman and then lying about the mat
ter under oath. See id., at 126a, 907a. “Reverend Kimber
has played a leadership role in all of Mayor DeStefano’s polit
ical campaigns, [and] is considered a valuable political sup
porter and vote-getter.” Id., at 126a. According to the
Mayor’s former campaign manager (who is currently his ex
ecutive assistant), Reverend Kimber is an invaluable political

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Alito, J., concurring
asset because “[h]e’s very good at organizing people and put
ting together field operations, as a result of his ties to labor,
his prominence in the religious community and his long
standing commitment to roots.” Id., at 908a (internal quo
tation marks and alteration omitted).
In 2002, the Mayor picked Reverend Kimber to serve as
the chairman of the New Haven Board of Fire Commission
ers (BFC), “despite the fact that he had no experience in the
profession, fire administration, [or] municipal management.”
Id., at 127a; see also id., at 928a–929a. In that capacity,
Reverend Kimber told firefighters that certain new recruits
would not be hired because “ ‘they just have too many vowels
in their name[s].’ ” Thanawala, New Haven Fire Panel
Chairman Steps Down Over Racial Slur, Hartford Courant,
June 13, 2002, p. B2. After protests about this comment,
Reverend Kimber stepped down as chairman of the BFC,
ibid.; see also App. to Pet. for Cert. in No. 07–1428, at 929a,
but he remained on the BFC and retained “a direct line to
the mayor,” id., at 816a.
Almost immediately after the test results were revealed
in “early January” 2004, Reverend Kimber called the City’s
chief administrative officer, Karen Dubois-Walton, who “acts
‘on behalf of the Mayor.’ ” Id., at 221a, 812a. Dubois-
Walton and Reverend Kimber met privately in her office be
cause he wanted “to express his opinion” about the test re
sults and “to have some influence” over the City’s response.
Id., at 815a–816a. As discussed in further detail below, Rev
erend Kimber adamantly opposed certification of the test re
sults—a fact that he or someone in the Mayor’s office eventu
ally conveyed to the Mayor. Id., at 229a.
B
On January 12, 2004, Tina Burgett (the director of the
City’s Department of Human Resources) sent an e-mail to
Dubois-Walton to coordinate the City’s response to the test
results. Burgett wanted to clarify that the City’s executive

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officials would meet “sans the Chief, and that once we had a
better fix on the next steps we would meet with the Mayor
(possibly) and then the two Chiefs.” Id., at 446a. The “two
Chiefs” are Fire Chief William Grant (who is white) and As
sistant Fire Chief Ronald Dumas (who is African-American).
Both chiefs believed that the test results should be certified.
Id., at 228a, 817a. Petitioners allege, and the record sug
gests, that the Mayor and his staff colluded “sans the
Chief[s]” because “the defendants did not want Grant’s and
Dumas’ views to be expressed or known; accordingly both
men were prevented by the Mayor and his staff from making
any statements regarding the matter.” Id., at 228a.1
The next day, on January 13, 2004, Chad Legel, who had
designed the tests, flew from Chicago to New Haven to meet
with Dubois-Walton, Burgett, and Thomas Ude, the City’s
corporate counsel. Id., at 179a. “Legel outlined the merits
of the examination and why city officials should be confident
in the validity of the results.” Ibid. But according to
Legel, Dubois-Walton was “argumentative” and apparently
had already made up her mind that the tests were “ ‘discrimi
natory.’ ” Id., at 179a–180a. Again according to Legel, “[a]
theme” of the meeting was “the political and racial overtones
of what was going on in the City.” Id., at 181a. “Legel
came away from the January 13, 2004 meeting with the im
pression that defendants were already leaning toward dis
carding the examination results.” Id., at 180a.
On January 22, 2004, the Civil Service Board (CSB or
Board) convened its first public meeting. Almost immedi
ately, Reverend Kimber began to exert political pressure on
the CSB. He began a loud, minutes-long outburst that re
quired the CSB chairman to shout him down and hold him
out of order three times. See id., at 187a, 467a–468a; see
1 Although the dissent disputes it, see post, at 639–640, n. 17, the rec
ord certainly permits the inference that petitioners’ allegation is true.
See App. to Pet. for Cert. in No. 07–1428, pp. 846a–851a (deposition of
Dubois-Walton).

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also App. in No. 06–4996–cv (CA2), pp. A703–A705. Rever
end Kimber protested the public meeting, arguing that he
and the other fire commissioners should first be allowed to
meet with the CSB in private. App. to Pet. for Cert. in
No. 07–1428, at 188a.
Four days after the CSB’s first meeting, Mayor DeStef
ano’s executive aide sent an e-mail to Dubois-Walton, Bur
gett, and Ude. Id., at 190a. The message clearly indicated
that the Mayor had made up his mind to oppose certification
of the test results (but nevertheless wanted to conceal that
fact from the public):
“I wanted to make sure we are all on the same page for
this meeting tomorrow. . . . [L]et’s remember, that
these folks are not against certification yet. So we
can’t go in and tell them that is our position; we have
to deliberate and arrive there as the fairest and most
cogent outcome.” Ibid.
On February 5, 2004, the CSB convened its second public
meeting. Reverend Kimber again testified and threatened
the CSB with political recriminations if they voted to certify
the test results:
“I look at this [Board] tonight. I look at three whites
and one Hispanic and no blacks. . . . I would hope that
you would not put yourself in this type of position,
a political ramification that may come back upon
you as you sit on this [Board] and decide the future of
a department and the future of those who are being
promoted.
. . . . .
“(APPLAUSE).” Id., at 492a (emphasis added).
One of the CSB members “t[ook] great offense” because he
believed that Reverend Kimber “consider[ed] [him] a bigot
because [his] face is white.” Id., at 496a. The offended

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CSB member eventually voted not to certify the test results.
Id., at 586a–587a.
One of Reverend Kimber’s “friends and allies,” Lieutenant
Gary Tinney, also exacerbated racial tensions before the
CSB. Id., at 129a. After some firefighters applauded in
support of certifying the test results, “Lt. Tinney exclaimed,
‘Listen to the Klansmen behind us.’ ” Id., at 225a.
Tinney also has strong ties to the Mayor’s office. See,
e. g., id., at 129a–130a, 816a–817a. After learning that he
had not scored well enough on the captain’s exam to earn
a promotion, Tinney called Dubois-Walton and arranged a
meeting in her office. Id., at 830a–831a, 836a. Tinney al
leged that the white firefighters had cheated on their
exams—an accusation that Dubois-Walton conveyed to the
Board without first conducting an investigation into its ve
racity. Id., at 837a–838a; see also App. 164 (statement of
CSB chairman, noting the allegations of cheating). The alle
gation turned out to be baseless. App. to Pet. for Cert. in
No. 07–1428, at 836a.
Dubois-Walton never retracted the cheating allegation, but
she and other executive officials testified several times be
fore the CSB. In accordance with directions from the May
or’s office to make the CSB meetings appear deliberative,
see id., at 190a, executive officials remained publicly uncom
mitted about certification—while simultaneously “work[ing]
as a team” behind closed doors with the secretary of the CSB
to devise a political message that would convince the CSB to
vote against certification, see id., at 447a. At the public
CSB meeting on March 11, 2004, for example, Corporation
Counsel Ude bristled at one board member’s suggestion that
City officials were recommending against certifying the test
results. See id., at 215a (“Attorney Ude took offense, stat
ing, ‘Frankly, because I would never make a recommenda
tion—I would not have made a recommendation like that’ ”).
But within days of making that public statement, Ude pri
vately told other members of the Mayor’s team “the ONLY

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way we get to a decision not to certify is” to focus on some
thing other than “a big discussion re: adverse impact” law.
Id., at 458a–459a.
As part of its effort to deflect attention from the specifics
of the test, the City relied heavily on the testimony of
Dr. Christopher Hornick, who is one of Chad Legel’s competi
tors in the test-development business. Hornick never “stud
[ied] the test [that Legel developed] at length or in detail,”
id., at 549a; see also id., at 203a, 553a, but Hornick did review
and rely upon literature sent to him by Burgett to criticize
Legel’s test. For example, Hornick “noted in the literature
that [Burgett] sent that the test was not customized to the
New Haven Fire Department.” Id., at 551a. The chairman
of the CSB immediately corrected Hornick. Id., at 552a
(“Actually, it was, Dr. Hornick”). Hornick also relied on
newspaper accounts—again, sent to him by Burgett—per
taining to the controversy surrounding the certification deci
sion. See id., at 204a, 557a. Although Hornick again ad
mitted that he had no knowledge about the actual test that
Legel had developed and that the City had administered, see
id., at 560a–561a, the City repeatedly relied upon Hornick as
a testing “guru” and, in the CSB chairman’s words, “the City
ke[pt] quoting him as a person that we should rely upon more
than anybody else [to conclude that there] is a better way—
a better mousetrap.” 2 App. in No. 06–4996–cv (CA2), at
A1128. Dubois-Walton later admitted that the City re
warded Hornick for his testimony by hiring him to develop
and administer an alternative test. App. to Pet. for Cert. in
2 The City’s heavy reliance on Hornick’s testimony makes the two chiefs’
silence all the more striking. See supra, at 599–600. While Hornick
knew little or nothing about the tests he criticized, the two chiefs were
involved “during the lengthy process that led to the devising of the admin
istration of these exams,” App. to Pet. for Cert. in No. 07–1428, at 847a,
including “collaborating with City officials on the extensive job analyses
that were done,” “selection of the oral panelists,” and selection of “the
proper content and subject matter of the exams,” id., at 847a–848a.

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No. 07–1428, at 854a; see also id., at 562a–563a (Hornick’s
plea for future business from the City on the basis of his
criticisms of Legel’s tests).
At some point prior to the CSB’s public meeting on March
18, 2004, the Mayor decided to use his executive authority to
disregard the test results—even if the CSB ultimately voted
to certify them. Id., at 819a–820a. Accordingly, on the
evening of March 17th, Dubois-Walton sent an e-mail to the
Mayor, the Mayor’s executive assistant, Burgett, and attor
ney Ude, attaching two alternative press releases. Id., at
457a. The first would be issued if the CSB voted not to
certify the test results; the second would be issued (and
would explain the Mayor’s invocation of his executive au
thority) if the CSB voted to certify the test results. Id.,
at 217a–218a, 590a–591a, 819a–820a. Half an hour after
Dubois-Walton circulated the alternative drafts, Burgett re
plied: “[W]ell, that seems to say it all. Let’s hope draft #2
hits the shredder tomorrow nite.” Id., at 457a.
Soon after the CSB voted against certification, Mayor De-
Stefano appeared at a dinner event and “took credit for the
scu[tt]ling of the examination results.” Id., at 230a.
C
Taking into account all the evidence in the summary judg
ment record, a reasonable jury could find the following. Al
most as soon as the City disclosed the racial makeup of the
list of firefighters who scored the highest on the exam, the
City administration was lobbied by an influential community
leader to scrap the test results, and the City administration
decided on that course of action before making any real as
sessment of the possibility of a disparate-impact violation.
To achieve that end, the City administration concealed its
internal decision but worked—as things turned out, suc
cessfully—to persuade the CSB that acceptance of the test
results would be illegal and would expose the City to
disparate-impact liability. But in the event that the CSB

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Alito, J., concurring
was not persuaded, the Mayor, wielding ultimate decision
making authority, was prepared to overrule the CSB imme
diately. Taking this view of the evidence, a reasonable jury
could easily find that the City’s real reason for scrapping the
test results was not a concern about violating the disparate
impact provision of Title VII but a simple desire to please a
politically important racial constituency. It is noteworthy
that the Solicitor General—whose position on the principal
legal issue here is largely aligned with the dissent—con
cludes that “[n]either the district court nor the court of
appeals . . . adequately considered whether, viewing the
evidence in the light most favorable to petitioners, a genu
ine issue of material fact remained whether respondents’
claimed purpose to comply with Title VII was a pretext for
intentional racial discrimination . . . .” Brief for United
States as Amicus Curiae 6; see also id., at 32–33.
III
I will not comment at length on the dissent’s criticism of
my analysis, but two points require a response.
The first concerns the dissent’s statement that I “equat[e]
political considerations with unlawful discrimination.” Post,
at 642. The dissent misrepresents my position: I draw no
such equation. Of course “there are many ways in which
a politician can attempt to win over a constituency—includ
ing a racial constituency—without engaging in unlawful dis
crimination.” Ibid. But—as I assume the dissent would
agree—there are some things that a public official cannot do,
and one of those is engaging in intentional racial discrimina
tion when making employment decisions.
The second point concerns the dissent’s main argument—
that efforts by the Mayor and his staff to scuttle the test
results are irrelevant because the ultimate decision was
made by the CSB. According to the dissent, “[t]he relevant
decision was made by the CSB,” post, at 640, and there is
“scant cause to suspect” that anything done by the opponents

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of certification, including the Mayor and his staff, “prevented
the CSB from evenhandedly assessing the reliability of the
exams and rendering an independent, good-faith decision on
certification,” post, at 641.
Adoption of the dissent’s argument would implicitly decide
an important question of Title VII law that this Court has
never resolved—the circumstances in which an employer
may be held liable based on the discriminatory intent of sub
ordinate employees who influence but do not make the ulti
mate employment decision. There is a large body of Court
of Appeals case law on this issue, and these cases disagree
about the proper standard. See EEOC v. BCI Coca-Cola
Bottling Co. of Los Angeles, 450 F. 3d 476, 484–488 (CA10
2006) (citing cases and describing the approaches taken in
different Circuits). One standard is whether the subordi
nate “exerted influenc[e] over the titular decisionmaker.”
Russell v. McKinney Hosp. Venture, 235 F. 3d 219, 227 (CA5
2000); see also Poland v. Chertoff, 494 F. 3d 1174, 1182 (CA9
2007) (A subordinate’s bias is imputed to the employer where
the subordinate “influenced or was involved in the decision
or decisionmaking process”). Another is whether the dis
criminatory input “caused the adverse employment action.”
See BCI Coca-Cola Bottling Co. of Los Angeles, supra,
at 487.
In the present cases, a reasonable jury could certainly find
that these standards were met. The dissent makes much of
the fact that members of the CSB swore under oath that
their votes were based on the good-faith belief that certifica
tion of the results would have violated federal law. See
post, at 640. But the good faith of the CSB members would
not preclude a finding that the presentations engineered
by the Mayor and his staff influenced or caused the CSB
decision.
The least employee-friendly standard asks only whether
“the actual decisionmaker” acted with discriminatory intent,
see Hill v. Lockheed Martin Logistics Management, Inc.,

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Alito, J., concurring
354 F. 3d 277, 291 (CA4 2004) (en banc), and it is telling that,
even under this standard, summary judgment for respond
ents would not be proper. This is so because a reasonable
jury could certainly find that in New Haven, the Mayor—not
the CSB—wielded the final decisionmaking power. After
all, the Mayor claimed that authority and was poised to use
it in the event that the CSB decided to accept the test re
sults. See supra, at 604. If the Mayor had the authority
to overrule a CSB decision accepting the test results, the
Mayor also presumably had the authority to overrule the
CSB’s decision rejecting the test results. In light of the
Mayor’s conduct, it would be quite wrong to throw out peti
tioners’ case on the ground that the CSB was the ultimate
decisionmaker.
* * *
Petitioners are firefighters who seek only a fair chance to
move up the ranks in their chosen profession. In order to
qualify for promotion, they made personal sacrifices. Peti
tioner Frank Ricci, who is dyslexic, found it necessary to
“hir[e] someone, at considerable expense, to read onto audio
tape the content of the books and study material[s].” App.
to Pet. for Cert. in No. 07–1428, at 169a. He “studied an
average of eight to thirteen hours a day . . . , even listening
to audio tapes while driving his car.” Ibid. Petitioner
Benjamin Vargas, who is Hispanic, had to “give up a part
time job,” and his wife had to “take leave from her own
job in order to take care of their three young children while
Vargas studied.” Id., at 176a. “Vargas devoted countless
hours to study . . . , missed two of his children’s birthdays and
over two weeks of vacation time,” and “incurred significant
financial expense” during the 3-month study period. Id., at
176a–177a.
Petitioners were denied promotions for which they quali
fied because of the race and ethnicity of the firefighters who
achieved the highest scores on the City’s exam. The Dis
trict Court threw out their case on summary judgment, even

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though that court all but conceded that a jury could find that
the City’s asserted justification was pretextual. The Court
of Appeals then summarily affirmed that decision.
The dissent grants that petitioners’ situation is “unfortu
nate” and that they “understandably attract this Court’s
sympathy.” Post this page and 644. But “sympathy” is not
what petitioners have a right to demand. What they have a
right to demand is evenhanded enforcement of the law—of
Title VII’s prohibition against discrimination based on race.
And that is what, until today’s decision, has been denied them.
Justice Ginsburg, with whom Justice Stevens, Jus
tice Souter, and Justice Breyer join, dissenting.
In assessing claims of race discrimination, “[c]ontext mat
ters.” Grutter v. Bollinger, 539 U. S. 306, 327 (2003). In
1972, Congress extended Title VII of the Civil Rights Act of
1964 to cover public employment. At that time, municipal
fire departments across the country, including New Haven’s,
pervasively discriminated against minorities. The exten
sion of Title VII to cover jobs in firefighting effected no over
night change. It took decades of persistent effort, advanced
by Title VII litigation, to open firefighting posts to members
of racial minorities.
The white firefighters who scored high on New Haven’s
promotional exams understandably attract this Court’s sym
pathy. But they had no vested right to promotion. Nor
have other persons received promotions in preference to
them. New Haven maintains that it refused to certify the
test results because it believed, for good cause, that it would
be vulnerable to a Title VII disparate-impact suit if it relied
on those results. The Court today holds that New Haven
has not demonstrated “a strong basis in evidence” for its
plea. Ante, at 563. In so holding, the Court pretends that
“[t]he City rejected the test results solely because the higher
scoring candidates were white.” Ante, at 580. That preten

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sion, essential to the Court’s disposition, ignores substantial
evidence of multiple flaws in the tests New Haven used.
The Court similarly fails to acknowledge the better tests
used in other cities, which have yielded less racially skewed
outcomes.1
By order of this Court, New Haven, a city in which
African-Americans and Hispanics account for nearly 60 per
cent of the population, must today be served—as it was in
the days of undisguised discrimination—by a fire department
in which members of racial and ethnic minorities are rarely
seen in command positions. In arriving at its order, the
Court barely acknowledges the pathmarking decision in
Griggs v. Duke Power Co., 401 U. S. 424 (1971), which ex
plained the centrality of the disparate-impact concept to ef
fective enforcement of Title VII. The Court’s order and
opinion, I anticipate, will not have staying power.
I
A
The Court’s recitation of the facts leaves out important
parts of the story. Firefighting is a profession in which
the legacy of racial discrimination casts an especially long
shadow. In extending Title VII to state and local govern
ment employers in 1972, Congress took note of a U. S. Com
mission on Civil Rights (USCCR) report finding racial dis
crimination in municipal employment even “more pervasive
than in the private sector.” H. R. Rep. No. 92–238, p. 17
(1971). According to the report, overt racism was partly to
blame, but so too was a failure on the part of municipal em
1 Never mind the flawed tests New Haven used and the better selection
methods used elsewhere, Justice Alito’s concurring opinion urges.
Overriding all else, racial politics, fired up by a strident African-American
pastor, were at work in New Haven. See ante, at 599–604. Even a de
tached and disinterested observer, however, would have every reason to
ask: Why did such racially skewed results occur in New Haven, when
better tests likely would have produced less disproportionate results?

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ployers to apply merit-based employment principles. In
making hiring and promotion decisions, public employers
often “rel[ied] on criteria unrelated to job performance,” in
cluding nepotism or political patronage. 118 Cong. Rec.
1817 (1972). Such flawed selection methods served to en
trench preexisting racial hierarchies. The USCCR report
singled out police and fire departments for having “[b]arriers
to equal employment . . . greater . . . than in any other area
of State or local government,” with African-Americans
“hold[ing] almost no positions in the officer ranks.” Ibid.
See also National Commission on Fire Prevention and Con
trol, America Burning 5 (1973) (“Racial minorities are
under-represented in the fire departments in nearly every
community in which they live.”).
The city of New Haven (City) was no exception. In the
early 1970’s, African-Americans and Hispanics composed 30
percent of New Haven’s population, but only 3.6 percent of
the City’s 502 firefighters. The racial disparity in the officer
ranks was even more pronounced: “[O]f the 107 officers in
the Department only one was black, and he held the lowest
rank above private.” Firebird Soc. of New Haven, Inc. v.
New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460
(Conn. 1975).
Following a lawsuit and settlement agreement, see ibid.,
the City initiated efforts to increase minority representation
in the New Haven Fire Department (Department). Those
litigation-induced efforts produced some positive change.
New Haven’s population includes a greater proportion of mi
norities today than it did in the 1970’s: Nearly 40 percent of
the City’s residents are African-American and more than 20
percent are Hispanic. Among entry-level firefighters, mi
norities are still underrepresented, but not starkly so. As
of 2003, African-Americans and Hispanics constituted 30 per
cent and 16 percent of the City’s firefighters, respectively.
In supervisory positions, however, significant disparities re
main. Overall, the senior officer ranks (captain and higher)

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are nine percent African-American and nine percent His
panic. Only one of the Department’s 21 fire captains is
African-American. See App. in No. 06–4996–cv (CA2),
p. A1588 (hereinafter CA2 App.). It is against this back
drop of entrenched inequality that the promotion process at
issue in this litigation should be assessed.
B
By order of its charter, New Haven must use competitive
examinations to fill vacancies in fire-officer and other civil
service positions. Such examinations, the City’s civil
service rules specify, “shall be practical in nature, shall relate
to matters which fairly measure the relative fitness and ca
pacity of the applicants to discharge the duties of the position
which they seek, and shall take into account character, train
ing, experience, physical and mental fitness.” Id., at A331.
The City may choose among a variety of testing methods,
including written and oral exams and “[p]erformance tests
to demonstrate skill and ability in performing actual work.”
Id., at A332.
New Haven, the record indicates, did not closely consider
what sort of “practical” examination would “fairly measure
the relative fitness and capacity of the applicants to dis
charge the duties” of a fire officer. Instead, the City simply
adhered to the testing regime outlined in its two-decades-old
contract with the local firefighters’ union: a written exam,
which would account for 60 percent of an applicant’s total
score, and an oral exam, which would account for the remain
ing 40 percent. Id., at A1045. In soliciting bids from exam
development companies, New Haven made clear that it
would entertain only “proposals that include a written com
ponent that will be weighted at 60%, and an oral component
that will be weighted at 40%.” Id., at A342. Chad Legel,
a representative of the winning bidder, Industrial/Organiza
tional Solutions, Inc. (IOS), testified during his deposition
that the City never asked whether alternative methods

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might better measure the qualities of a successful fire officer,
including leadership skills and command presence. See id.,
at A522 (“I was under contract and had responsibility only
to create the oral interview and the written exam.”).
Pursuant to New Haven’s specifications, IOS developed
and administered the oral and written exams. The results
showed significant racial disparities. On the lieutenant
exam, the pass rate for African-American candidates was
about one-half the rate for Caucasian candidates; the pass
rate for Hispanic candidates was even lower. On the captain
exam, both African-American and Hispanic candidates
passed at about half the rate of their Caucasian counterparts.
See App. 225–226. More striking still, although nearly half
of the 77 lieutenant candidates were African-American or
Hispanic, none would have been eligible for promotion to the
eight positions then vacant. The highest scoring African-
American candidate ranked 13th; the top Hispanic candidate
was 26th. As for the seven then-vacant captain positions,
two Hispanic candidates would have been eligible, but no
African-Americans. The highest scoring African-American
candidate ranked 15th. See id., at 218–219.
These stark disparities, the Court acknowledges, sufficed
to state a prima facie case under Title VII’s disparate-impact
provision. See ante, at 586 (“The pass rates of minorities . . .
f[e]ll well below the 80-percent standard set by the [Equal
Employment Opportunity Commission (EEOC)] to imple
ment the disparate-impact provision of Title VII.”). New
Haven thus had cause for concern about the prospect of Title
VII litigation and liability. City officials referred the matter
to the New Haven Civil Service Board (CSB), the entity re
sponsible for certifying the results of employment exams.
Between January and March 2004, the CSB held five public
meetings to consider the proper course. At the first meet
ing, New Haven’s Corporation Counsel, Thomas Ude, de
scribed the legal standard governing Title VII disparate
impact claims. Statistical imbalances alone, Ude correctly

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recognized, do not give rise to liability. Instead, presented
with a disparity, an employer “has the opportunity and the
burden of proving that the test is job-related and consistent
with business necessity.” CA2 App. A724. A Title VII
plaintiff may attempt to rebut an employer’s showing of job
relatedness and necessity by identifying alternative selection
methods that would have been at least as valid but with “less
of an adverse or disparate or discriminatory effect.” Ibid.
See also id., at A738. Accordingly, the CSB commissioners
understood, their principal task was to decide whether they
were confident about the reliability of the exams: Had the
exams fairly measured the qualities of a successful fire officer
despite their disparate results? Might an alternative exam
ination process have identified the most qualified candidates
without creating such significant racial imbalances?
Seeking a range of input on these questions, the CSB
heard from test takers, the test designer, subject-matter ex
perts, City officials, union leaders, and community members.
Several candidates for promotion, who did not yet know their
exam results, spoke at the CSB’s first two meetings. Some
candidates favored certification. The exams, they empha
sized, had closely tracked the assigned study materials.
Having invested substantial time and money to prepare
themselves for the test, they felt it would be unfair to scrap
the results. See, e. g., id., at A772–A773, A785–A789.
Other firefighters had a different view. A number of the
exam questions, they pointed out, were not germane to New
Haven’s practices and procedures. See, e. g., id., at A774–
A784. At least two candidates opposed to certification noted
unequal access to study materials. Some individuals, they
asserted, had the necessary books even before the syllabus
was issued. Others had to invest substantial sums to pur
chase the materials and “wait a month and a half for some of
the books because they were on back-order.” Id., at A858.
These disparities, it was suggested, fell at least in part along
racial lines. While many Caucasian applicants could obtain

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materials and assistance from relatives in the fire service,
the overwhelming majority of minority applicants were
“first-generation firefighters” without such support net
works. See id., at A857–A861, A886–A887.
A representative of the Northeast Region of the Interna
tional Association of Black Professional Firefighters, Donald
Day, also spoke at the second meeting. Statistical dispari
ties, he told the CSB, had been present in the Department’s
previous promotional exams. On earlier tests, however, a
few minority candidates had fared well enough to earn pro
motions. Id., at A828. See also App. 218–219. Day con
trasted New Haven’s experience with that of nearby Bridge
port, where minority firefighters held one-third of lieutenant
and captain positions. Bridgeport, Day observed, had once
used a testing process similar to New Haven’s, with a writ
ten exam accounting for 70 percent of an applicant’s score,
an oral exam for 25 percent, and seniority for the remaining
five percent. CA2 App. A830. Bridgeport recognized,
however, that the oral component, more so than the written
component, addressed the sort of “real-life scenarios” fire of
ficers encounter on the job. Id., at A832. Accordingly, that
city “changed the relative weights” to give primacy to the
oral exam. Ibid. Since that time, Day reported, Bridge
port had seen minorities “fairly represented” in its exam re
sults. Ibid.
The CSB’s third meeting featured IOS representative
Legel, the leader of the team that had designed and adminis
tered the exams for New Haven. Several City officials also
participated in the discussion. Legel described the exam
development process in detail. The City, he recounted, had
set the “parameters” for the exams, specifically, the require
ment of written and oral components with a 60/40 weighting.
Id., at A923, A974. For security reasons, Department offi
cials had not been permitted to check the content of the ques
tions prior to their administration. Instead, IOS retained a
senior fire officer from Georgia to review the exams “for con

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tent and fidelity to the source material.” Id., at A936.
Legel defended the exams as “facially neutral,” and stated
that he “would stand by the[ir] validity.” Id., at A962.
City officials did not dispute the neutrality of IOS’s work.
But, they cautioned, even if individual exam questions had
no intrinsic bias, the selection process as a whole may never
theless have been deficient. The officials urged the CSB to
consult with experts about the “larger picture.” Id., at
A1012.
At its fourth meeting, CSB solicited the views of three
individuals with testing-related expertise. Dr. Christopher
Hornick, an industrial/organizational psychology consultant
with 25 years’ experience with police and firefighter testing,
described the exam results as having “relatively high ad
verse impact.” Id., at A1028. Most of the tests he had
developed, Hornick stated, exhibited “significantly and dra
matically less adverse impact.” Id., at A1029. Hornick
downplayed the notion of “facial neutrality.” It was more
important, he advised the CSB, to consider “the broader
issue of how your procedures and your rules and the types
of tests that you are using are contributing to the adverse
impact.” Id., at A1038.
Specifically, Hornick questioned New Haven’s union
prompted 60/40 written/oral examination structure, noting
the availability of “different types of testing procedures that
are much more valid in terms of identifying the best poten
tial supervisors in [the] fire department.” Id., at A1032.
He suggested, for example, “an assessment center process,
which is essentially an opportunity for candidates . . . to dem
onstrate how they would address a particular problem as op
posed to just verbally saying it or identifying the correct
option on a written test.” Id., at A1039–A1040. Such se
lection processes, Hornick said, better “identif[y] the best
possible people” and “demonstrate dramatically less adverse
impacts.” Ibid. Hornick added:

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“I’ve spoken to at least 10,000, maybe 15,000, fire
fighters in group settings in my consulting practice and
I have never one time ever had anyone in the fire service
say to me, ‘Well, the person who answers—gets the
highest score on a written job knowledge, multiple
guess test makes the best company officer.’ We know
that it’s not as valid as other procedures that exist.”
Id., at A1033.
See also id., at A1042–A1043 (“I think a person’s leadership
skills, their command presence, their interpersonal skills,
their management skills, their tactical skills could have been
identified and evaluated in a much more appropriate way.”).
Hornick described the written test itself as “reasonably
good,” id., at A1041, but he criticized the decision not to
allow Department officials to check the content. According
to Hornick, this “inevitably” led to “test[ing] for processes
and procedures that don’t necessarily match up into the de
partment.” Id., at A1034–A1035. He preferred “experts
from within the department who have signed confidentiality
agreements . . . to make sure that the terminology and equip
ment that’s being identified from standardized reading
sources apply to the department.” Id., at A1035.
Asked whether he thought the City should certify the re
sults, Hornick hedged: “There is adverse impact in the test.
That will be identified in any proceeding that you have. You
will have industrial psychology experts, if it goes to court,
on both sides. And it will not be a pretty or comfortable
position for anyone to be in.” Id., at A1040–A1041. Per
haps, he suggested, New Haven might certify the results but
immediately begin exploring “alternative ways to deal with
these issues” in the future. Id., at A1041.
The two other witnesses made relatively brief appear
ances. Vincent Lewis, a specialist with the Department of
Homeland Security and former fire officer in Michigan, be
lieved the exams had generally tested relevant material, al
though he noted a relatively heavy emphasis on questions

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pertaining to being an “apparatus driver.” He suggested
that this may have disadvantaged test takers “who had not
had the training or had not had an opportunity to drive the
apparatus.” Id., at A1051. He also urged the CSB to con
sider whether candidates had, in fact, enjoyed equal access
to the study materials. Ibid. Cf. supra, at 613–614.
Janet Helms, a professor of counseling psychology at Bos
ton College, observed that two-thirds of the incumbent fire
officers who submitted job analyses to IOS during the exam
design phase were Caucasian. Members of different racial
groups, Helms told the CSB, sometimes do their jobs in dif
ferent ways, “often because the experiences that are open to
white male firefighters are not open to members of these
other under-represented groups.” CA2 App. A1063–A1064.
The heavy reliance on job analyses from white firefighters,
she suggested, may thus have introduced an element of bias.
Id., at A1063.
The CSB’s fifth and final meeting began with statements
from City officials recommending against certification. Ude,
New Haven’s counsel, repeated the applicable disparate
impact standard:
“[A] finding of adverse impact is the beginning, not the
end, of a review of testing procedures. Where a proce
dure demonstrates adverse impact, you look to how
closely it is related to the job that you’re looking to fill
and you also look at whether there are other ways to
test for those qualities, those traits, those positions that
are equally valid with less adverse impact.” Id., at
A1100–A1101.
New Haven, Ude and other officials asserted, would be vul
nerable to Title VII liability under this standard. Even if
the exams were “facially neutral,” significant doubts had
been raised about whether they properly assessed the key
attributes of a successful fire officer. Id., at A1103. See
also id., at A1125 (“Upon close reading of the exams, the

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questions themselves would appear to test a candidate’s abil
ity to memorize textbooks but not necessarily to identify so
lutions to real problems on the fire ground.”). Moreover,
City officials reminded the CSB, Hornick and others had
identified better, less discriminatory selection methods—
such as assessment centers or exams with a more heavily
weighted oral component. Id., at A1108–A1109, A1129–
A1130.
After giving members of the public a final chance to weigh
in, the CSB voted on certification, dividing 2 to 2. By rule,
the result was noncertification. Voting no, Commissioner
Webber stated, “I originally was going to vote to certify.
. . . But I’ve heard enough testimony here to give me great
doubts about the test itself and . . . some of the procedures.
And I believe we can do better.” Id., at A1157. Commis
sioner Tirado likewise concluded that the “flawed” testing
process counseled against certification. Id., at A1158.
Chairman Segaloff and Commissioner Caplan voted to cer
tify. According to Segaloff, the testimony had not “com
pelled [him] to say this exam was not job-related,” and he
was unconvinced that alternative selection processes would
be “less discriminatory.” Id., at A1159–A1160. Both Sega
loff and Caplan, however, urged the City to undertake civil
service reform. Id., at A1150–A1154.
C
Following the CSB’s vote, petitioners—17 white fire
fighters and one Hispanic firefighter, all of whom had high
marks on the exams—filed suit in the United States District
Court for the District of Connecticut. They named as de
fendants—respondents here—the City, several City officials,
a local political activist, and the two CSB members who
voted against certifying the results. By opposing certifi
cation, petitioners alleged, respondents had discriminated
against them in violation of Title VII’s disparate-treatment
provision and the Fourteenth Amendment’s Equal Protec

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tion Clause. The decision not to certify, respondents an
swered, was a lawful effort to comply with Title VII’s
disparate-impact provision and thus could not have run afoul
of Title VII’s prohibition of disparate treatment. Charac
terizing respondents’ stated rationale as a mere pretext,
petitioners insisted that New Haven would have had a solid
defense to any disparate-impact suit.
In a decision summarily affirmed by the Court of Appeals,
the District Court granted summary judgment for respond
ents. 554 F. Supp. 2d 142 (Conn. 2006), aff ’d, 530 F. 3d 87
(CA2 2008) (per curiam). Under Second Circuit precedent,
the District Court explained, “the intent to remedy the dis
parate impact” of a promotional exam “is not equivalent to
an intent to discriminate against non-minority applicants.”
554 F. Supp. 2d, at 157 (quoting Hayden v. County of Nassau,
180 F. 3d 42, 51 (CA2 1999)). Rejecting petitioners’ pretext
argument, the court observed that the exam results were
sufficiently skewed “to make out a prima facie case of dis
crimination” under Title VII’s disparate-impact provision.
554 F. Supp. 2d, at 158. Had New Haven gone forward with
certification and been sued by aggrieved minority test tak
ers, the City would have been forced to defend tests that
were presumptively invalid. And, as the CSB testimony of
Hornick and others indicated, overcoming that presumption
would have been no easy task. Id., at 153–156. Given Title
VII’s preference for voluntary compliance, the court held,
New Haven could lawfully discard the disputed exams even
if the City had not definitively “pinpoint[ed]” the source of
the disparity and “ha[d] not yet formulated a better selection
method.” Id., at 156.
Respondents were no doubt conscious of race during their
decisionmaking process, the court acknowledged, but this did
not mean they had engaged in racially disparate treatment.
The conclusion they had reached and the action thereupon
taken were race neutral in this sense: “[A]ll the test results
were discarded, no one was promoted, and firefighters of

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every race will have to participate in another selection proc
ess to be considered for promotion.” Id., at 158. New Ha
ven’s action, which gave no individual a preference, “was
‘simply not analogous to a quota system or a minority set
aside where candidates, on the basis of their race, are not
treated uniformly.’ ” Id., at 157 (quoting Hayden, 180 F. 3d,
at 50). For these and other reasons, the court also rejected
petitioners’ equal protection claim.
II
A
Title VII became effective in July 1965. Employers re
sponded to the law by eliminating rules and practices that
explicitly barred racial minorities from “white” jobs. But
removing overtly race-based job classifications did not usher
in genuinely equal opportunity. More subtle—and some
times unconscious—forms of discrimination replaced once
undisguised restrictions.
In Griggs v. Duke Power Co., 401 U. S. 424 (1971), this
Court responded to that reality and supplied important guid
ance on Title VII’s mission and scope. Congress, the land
mark decision recognized, aimed beyond “disparate treat
ment”; it targeted “disparate impact” as well. Title VII’s
original text, it was plain to the Court, “proscribe[d] not only
overt discrimination but also practices that are fair in form,
but discriminatory in operation.” Id., at 431.2 Only by ig
2 The Court’s disparate-impact analysis rested on two provisions of Title
VII: § 703(a)(2), which made it unlawful for an employer “to limit, segre
gate, or classify his employees in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise ad
versely affect his status as an employee, because of such individual’s race,
color, religion, sex, or national origin”; and § 703(h), which permitted em
ployers “to act upon the results of any professionally developed ability
test provided that such test, its administration or action upon the results
is not designed, intended or used to discriminate because of race, color,
religion, sex or national origin.” Griggs v. Duke Power Co., 401 U. S. 424,
426, n. 1 (1971) (quoting 78 Stat. 255, 42 U. S. C. § 2000e–2(a)(2), (h) (1964

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noring Griggs could one maintain that intentionally dispar
ate treatment alone was Title VII’s “original, foundational
prohibition,” and disparate impact a mere afterthought.
Cf. ante, at 581.
Griggs addressed Duke Power Company’s policy that ap
plicants for positions, save in the company’s labor depart
ment, be high school graduates and score satisfactorily on
two professionally prepared aptitude tests. “[T]here was no
showing of a discriminatory purpose in the adoption of the
diploma and test requirements.” 401 U. S., at 428. The pol
icy, however, “operated to render ineligible a markedly dis
proportionate number of [African-Americans].” Id., at 429.
At the time of the litigation, in North Carolina, where the
Duke Power plant was located, 34 percent of white males,
but only 12 percent of African-American males, had high
school diplomas. Id., at 430, n. 6. African-Americans also
failed the aptitude tests at a significantly higher rate than
whites. Ibid. Neither requirement had been “shown to
bear a demonstrable relationship to successful performance
of the jobs for which it was used.” Id., at 431.
The Court unanimously held that the company’s diploma
and test requirements violated Title VII. “[T]o achieve
equality of employment opportunities,” the Court compre
hended, Congress “directed the thrust of the Act to the con
sequences of employment practices, not simply the motiva
tion.” Id., at 429, 432. That meant “unnecessary barriers
to employment” must fall, even if “neutral on their face” and
“neutral in terms of intent.” Id., at 430, 431. “The touch
stone” for determining whether a test or qualification meets
Title VII’s measure, the Court said, is not “good intent or
the absence of discriminatory intent”; it is “business neces
sity.” Id., at 431, 432. Matching procedure to substance,
the Griggs Court observed, Congress “placed on the em
ed.)). See also 401 U. S., at 433–436 (explaining that § 703(h) author
izes only tests that are “demonstrably a reasonable measure of job
performance”).

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ployer the burden of showing that any given requirement . . .
ha[s] a manifest relationship to the employment in question.”
Id., at 432.
In Albemarle Paper Co. v. Moody, 422 U. S. 405 (1975), the
Court, again without dissent, elaborated on Griggs. When
an employment test “select[s] applicants for hire or promo
tion in a racial pattern significantly different from the pool
of applicants,” the Court reiterated, the employer must dem
onstrate a “manifest relationship” between test and job.
422 U. S., at 425. Such a showing, the Court cautioned, does
not necessarily mean the employer prevails: “[I]t remains
open to the complaining party to show that other tests or
selection devices, without a similarly undesirable racial ef
fect, would also serve the employer’s legitimate interest in
‘efficient and trustworthy workmanship.’ ” Ibid.
Federal trial and appellate courts applied Griggs and Albe
marle to disallow a host of hiring and promotion practices
that “operate[d] as ‘built in headwinds’ for minority groups.”
Griggs, 401 U. S., at 432. Practices discriminatory in effect,
courts repeatedly emphasized, could be maintained only
upon an employer’s showing of “an overriding and compel
ling business purpose.” Chrisner v. Complete Auto Tran
sit, Inc., 645 F. 2d 1251, 1261, n. 9 (CA6 1981).3 That a prac
3 See also Dothard v. Rawlinson, 433 U. S. 321, 332, n. 14 (1977)
(“a discriminatory employment practice must be shown to be necessary to
safe and efficient job performance to survive a Title VII challenge”); Wil
liams v. Colorado Springs, Colo., School Dist., 641 F. 2d 835, 840–841
(CA10 1981) (“The term ‘necessity’ connotes that the exclusionary practice
must be shown to be of great importance to job performance.”); Kirby v.
Colony Furniture Co., 613 F. 2d 696, 705, n. 6 (CA8 1980) (“the proper
standard for determining whether ‘business necessity’ justifies a practice
which has a racially discriminatory result is not whether it is justified by
routine business considerations but whether there is a compelling need
for the employer to maintain that practice and whether the employer can
prove there is no alternative to the challenged practice”); Pettway v.
American Cast Iron Pipe Co., 494 F. 2d 211, 244, n. 87 (CA5 1974) (“this
doctrine of business necessity . . . connotes an irresistible demand” (inter

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623 Cite as: 557 U. S. 557 (2009)
Ginsburg, J., dissenting
tice served “legitimate management functions” did not, it
was generally understood, suffice to establish business neces
sity. Williams v. Colorado Springs, Colo., School Dist., 641
F. 2d 835, 840–841 (CA10 1981) (internal quotation marks
omitted). Among selection methods cast aside for lack of
a “manifest relationship” to job performance were a num
ber of written hiring and promotional examinations for
firefighters.4
Moving in a different direction, in Wards Cove Packing
Co. v. Atonio, 490 U. S. 642 (1989), a bare majority of this
Court significantly modified the Griggs-Albemarle delin
eation of Title VII’s disparate-impact proscription. As to
business necessity for a practice that disproportionately
excludes members of minority groups, Wards Cove held,
the employer bears only the burden of production, not the
burden of persuasion. 490 U. S., at 659–660. And in place
of the instruction that the challenged practice “must have
a manifest relationship to the employment in question,”
Griggs, 401 U. S., at 432, Wards Cove said that the practice
would be permissible as long as it “serve[d], in a significant
way, the legitimate employment goals of the employer,” 490
U. S., at 659.
nal quotation marks omitted)); United States v. Bethlehem Steel Corp., 446
F. 2d 652, 662 (CA2 1971) (an exclusionary practice “must not only directly
foster safety and efficiency of a plant, but also be essential to those goals”);
Robinson v. Lorillard Corp., 444 F. 2d 791, 798 (CA4 1971) (“The test
is whether there exists an overriding legitimate business purpose such
that the practice is necessary to the safe and efficient operation of the
business.”).
4 See, e. g., Nash v. Jacksonville, 837 F. 2d 1534 (CA11 1988), vacated,
490 U. S. 1103 (1989), opinion reinstated, 905 F. 2d 355 (1990); Vulcan Pio
neers, Inc. v. New Jersey Dept. of Civil Serv., 832 F. 2d 811 (CA3 1987);
Guardians Assn. of N. Y. City Police Dept. v. Civil Serv. Comm’n, 630
F. 2d 79 (CA2 1980); Ensley Branch of NAACP v. Seibels, 616 F. 2d 812
(CA5 1980); Firefighters Inst. for Racial Equality v. St. Louis, 616 F. 2d
350 (CA8 1980); Boston Chapter, NAACP, Inc. v. Beecher, 504 F. 2d 1017
(CA1 1974).

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In response to Wards Cove and “a number of [other] recent
decisions by the United States Supreme Court that sharply
cut back on the scope and effectiveness of [civil rights] laws,”
Congress enacted the Civil Rights Act of 1991. H. R. Rep.
No. 102–40, pt. 2, p. 2 (1991). Among the 1991 alterations,
Congress formally codified the disparate-impact component
of Title VII. In so amending the statute, Congress made
plain its intention to restore “the concepts of ‘business neces
sity’ and ‘job related’ enunciated by the Supreme Court in
Griggs v. Duke Power Co. . . . and in other Supreme Court
decisions prior to Wards Cove Packing Co. v. Atonio.”
§ 3(2), 105 Stat. 1071. Once a complaining party dem
onstrates that an employment practice causes a disparate
impact, amended Title VII states, the burden is on the
employer “to demonstrate that the challenged practice is
job related for the position in question and consistent
with business necessity.” 42 U. S. C. § 2000e–2(k)(1)(A)(i).
If the employer carries that substantial burden, the com
plainant may respond by identifying “an alternative em
ployment practice” which the employer “refuses to adopt.”
§ 2000e–2(k)(1)(A)(ii), (C).
B
Neither Congress’ enactments nor this Court’s Title VII
precedents (including the now-discredited decision in Wards
Cove) offer even a hint of “conflict” between an employer’s
obligations under the statute’s disparate-treatment and
disparate-impact provisions. Cf. ante, at 580. Standing on
an equal footing, these twin pillars of Title VII advance the
same objectives: ending workplace discrimination and pro
moting genuinely equal opportunity. See McDonnell Doug
las Corp. v. Green, 411 U. S. 792, 800 (1973).
Yet the Court today sets at odds the statute’s core direc
tives. When an employer changes an employment practice
in an effort to comply with Title VII’s disparate-impact pro

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vision, the Court reasons, it acts “because of race”—some
thing Title VII’s disparate-treatment provision, see § 2000e–
2(a)(1), generally forbids. Ante, at 579–580. This charac
terization of an employer’s compliance-directed action shows
little attention to Congress’ design or to the Griggs line of
cases Congress recognized as pathmarking.
“[O]ur task in interpreting separate provisions of a single
Act is to give the Act the most harmonious, comprehensive
meaning possible in light of the legislative policy and pur
pose.” Weinberger v. Hynson, Westcott & Dunning, Inc.,
412 U. S. 609, 631–632 (1973) (internal quotation marks omit
ted). A particular phrase need not “extend to the outer lim
its of its definitional possibilities” if an incongruity would
result. Dolan v. Postal Service, 546 U. S. 481, 486 (2006).
Here, Title VII’s disparate-treatment and disparate-impact
proscriptions must be read as complementary.
In codifying the Griggs and Albemarle instructions, Con
gress declared unambiguously that selection criteria operat
ing to the disadvantage of minority group members can be
retained only if justified by business necessity.5 In keeping
with Congress’ design, employers who reject such criteria
due to reasonable doubts about their reliability can hardly
be held to have engaged in discrimination “because of ” race.
A reasonable endeavor to comply with the law and to ensure
that qualified candidates of all races have a fair opportunity
to compete is simply not what Congress meant to interdict.
I would therefore hold that an employer who jettisons a
selection device when its disproportionate racial impact
becomes apparent does not violate Title VII’s disparate
treatment bar automatically or at all, subject to this key
condition: The employer must have good cause to believe the
5 What was the “business necessity” for the tests New Haven used?
How could one justify, e. g., the 60/40 written/oral ratio, see supra, at 611–
612, 614–615, under that standard? Neither the Court nor the concurring
opinions attempt to defend the ratio.

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device would not withstand examination for business neces
sity. Cf. Faragher v. Boca Raton, 524 U. S. 775, 806 (1998)
(observing that it accords with “clear statutory policy” for
employers “to prevent violations” and “make reasonable ef
forts to discharge their duty” under Title VII).
EEOC’s interpretative guidelines are corroborative.
“[B]y the enactment of title VII,” the guidelines state, “Con
gress did not intend to expose those who comply with the
Act to charges that they are violating the very statute they
are seeking to implement.” 29 CFR § 1608.1(a) (2008).
Recognizing EEOC’s “enforcement responsibility” under
Title VII, we have previously accorded the Commission’s po
sition respectful consideration. See, e. g., Albemarle, 422
U. S., at 431; Griggs, 401 U. S., at 434. Yet the Court today
does not so much as mention EEOC’s counsel.
Our precedents defining the contours of Title VII’s
disparate-treatment prohibition further confirm the absence
of any intrastatutory discord. In Johnson v. Transporta
tion Agency, Santa Clara Cty., 480 U. S. 616 (1987), we up
held a municipal employer’s voluntary affirmative-action plan
against a disparate-treatment challenge. Pursuant to the
plan, the employer selected a woman for a road-dispatcher
position, a job category traditionally regarded as “male.” A
male applicant who had a slightly higher interview score
brought suit under Title VII. This Court rejected his claim
and approved the plan, which allowed consideration of gen
der as “one of numerous factors.” Id., at 638. Such consid
eration, we said, is “fully consistent with Title VII” because
plans of that order can aid “in eliminating the vestiges of
discrimination in the workplace.” Id., at 642.
This litigation does not involve affirmative action. But if
the voluntary affirmative action at issue in Johnson does not
discriminate within the meaning of Title VII, neither does
an employer’s reasonable effort to comply with Title VII’s
disparate-impact provision by refraining from action of
doubtful consistency with business necessity.

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C
To “reconcile” the supposed “conflict” between disparate
treatment and disparate impact, the Court offers an enig
matic standard. Ante, at 580. Employers may attempt to
comply with Title VII’s disparate-impact provision, the
Court declares, only where there is a “strong basis in evi
dence” documenting the necessity of their action. Ante,
at 583. The Court’s standard, drawn from inapposite equal
protection precedents, is not elaborated. One is left to won
der what cases would meet the standard and why the Court
is so sure cases of this genre do not.
1
In construing Title VII, I note preliminarily, equal protec
tion doctrine is of limited utility. The Equal Protection
Clause, this Court has held, prohibits only intentional dis
crimination; it does not have a disparate-impact component.
See Personnel Administrator of Mass. v. Feeney, 442 U. S.
256, 272 (1979); Washington v. Davis, 426 U. S. 229, 239
(1976). Title VII, in contrast, aims to eliminate all forms of
employment discrimination, unintentional as well as deliber
ate. Until today, cf. ante, at 584; ante, p. 594 (Scalia, J., con
curring), this Court has never questioned the constitutional
ity of the disparate-impact component of Title VII, and for
good reason. By instructing employers to avoid needlessly
exclusionary selection processes, Title VII’s disparate
impact provision calls for a “race-neutral means to increase
minority . . . participation”—something this Court’s equal
protection precedents also encourage. See Adarand Con
structors, Inc. v. Pen´ a, 515 U. S. 200, 238 (1995) (quoting
Richmond v. J. A. Croson Co., 488 U. S. 469, 507 (1989)).
“The very radicalism of holding disparate impact doctrine
unconstitutional as a matter of equal protection,” moreover,
“suggests that only a very uncompromising court would
issue such a decision.” Primus, Equal Protection and Dis

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628 RICCI v. DeSTEFANO
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parate Impact: Round Three, 117 Harv. L. Rev. 493, 585
(2003).
The cases from which the Court draws its strong-basis-in
evidence standard are particularly inapt; they concern the
constitutionality of absolute racial preferences. See Wygant
v. Jackson Bd. of Ed., 476 U. S. 267, 277 (1986) (plurality
opinion) (invalidating a school district’s plan to lay off nonmi
nority teachers while retaining minority teachers with less
seniority); Croson, 488 U. S., at 499–500 (rejecting a set
aside program for minority contractors that operated as “an
unyielding racial quota”). An employer’s effort to avoid
Title VII liability by repudiating a suspect selection method
scarcely resembles those cases. Race was not merely a rele
vant consideration in Wygant and Croson; it was the decisive
factor. Observance of Title VII’s disparate-impact provi
sion, in contrast, calls for no racial preference, absolute or
otherwise. The very purpose of the provision is to ensure
that individuals are hired and promoted based on qualifica
tions manifestly necessary to successful performance of the
job in question, qualifications that do not screen out mem
bers of any race.6
2
The Court’s decision in this litigation underplays a domi
nant Title VII theme. This Court has repeatedly empha
sized that the statute “should not be read to thwart” efforts
at voluntary compliance. Johnson, 480 U. S., at 630. Such
6 Even in Title VII cases involving race-conscious (or gender-conscious)
affirmative-action plans, the Court has never proposed a strong-basis-in
evidence standard. In Johnson v. Transportation Agency, Santa Clara
Cty., 480 U. S. 616 (1987), the Court simply examined the municipal em
ployer’s action for reasonableness: “Given the obvious imbalance in the
Skilled Craft category, and given the Agency’s commitment to eliminating
such imbalances, it was plainly not unreasonable for the Agency . . . to
consider as one factor the sex of [applicants] in making its decision.” Id.,
at 637. See also Firefighters v. Cleveland, 478 U. S. 501, 516 (1986) (“Title
VII permits employers and unions voluntarily to make use of reasonable
race-conscious affirmative action.”).

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629 Cite as: 557 U. S. 557 (2009)
Ginsburg, J., dissenting
compliance, we have explained, is “the preferred means of
achieving [Title VII’s] objectives.” Firefighters v. Cleve
land, 478 U. S. 501, 515 (1986). See also Kolstad v.
American Dental Assn., 527 U. S. 526, 545 (1999) (“Dissuad
ing employers from [taking voluntary action] to prevent
discrimination in the workplace is directly contrary to the
purposes underlying Title VII.”); 29 CFR § 1608.1(c). The
strong-basis-in-evidence standard, however, as barely de
scribed in general, and cavalierly applied in this litigation,
makes voluntary compliance a hazardous venture.
As a result of today’s decision, an employer who discards
a dubious selection process can anticipate costly disparate
treatment litigation in which its chances for success—even
for surviving a summary-judgment motion—are highly prob
lematic. Concern about exposure to disparate-impact liabil
ity, however well grounded, is insufficient to insulate an em
ployer from attack. Instead, the employer must make a
“strong” showing that (1) its selection method was “not job
related and consistent with business necessity,” or (2) that it
refused to adopt “an equally valid, less discriminatory alter
native.” Ante, at 587. It is hard to see how these require
ments differ from demanding that an employer establish
“a provable, actual violation” against itself. Cf. ante, at 583.
There is indeed a sharp conflict here, but it is not the false
one the Court describes between Title VII’s core provisions.
It is, instead, the discordance of the Court’s opinion with the
voluntary compliance ideal. Cf. Wygant, 476 U. S., at 290
(O’Connor, J., concurring in part and concurring in judgment)
(“The imposition of a requirement that public employers
make findings that they have engaged in illegal discrimi
nation before they [act] would severely undermine public
employers’ incentive to meet voluntarily their civil rights
obligations.”).7
7 Notably, prior decisions applying a strong-basis-in-evidence standard
have not imposed a burden as heavy as the one the Court imposes today.
In Croson, the Court found no strong basis in evidence because the city

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3
The Court’s additional justifications for announcing a
strong-basis-in-evidence standard are unimpressive. First,
discarding the results of tests, the Court suggests, calls for
a heightened standard because it “upset[s] an employee’s le
gitimate expectation.” Ante, at 585. This rationale puts
the cart before the horse. The legitimacy of an employee’s
expectation depends on the legitimacy of the selection
method. If an employer reasonably concludes that an exam
fails to identify the most qualified individuals and needlessly
shuts out a segment of the applicant pool, Title VII surely
does not compel the employer to hire or promote based on
the test, however unreliable it may be. Indeed, the statute’s
prime objective is to prevent exclusionary practices from
“operat[ing] to ‘freeze’ the status quo.” Griggs, 401 U. S.,
at 430.
Second, the Court suggests, anything less than a strong
basis-in-evidence standard risks creating “a de facto quota
system, in which . . . an employer could discard test results
. . . with the intent of obtaining the employer’s preferred
racial balance.” Ante, at 581–582. Under a reasonableness
standard, however, an employer could not cast aside a selec
tion method based on a statistical disparity alone.8 The em
ployer must have good cause to believe that the method
had offered “nothing approaching a prima facie case.” Richmond v. J. A.
Croson Co., 488 U. S. 469, 500 (1989). The Court did not suggest that
anything beyond a prima facie case would have been required. In the
context of race-based electoral districting, the Court has indicated that a
“strong basis” exists when the “threshold conditions” for liability are pres
ent. Bush v. Vera, 517 U. S. 952, 978 (1996) (plurality opinion).
8 Infecting the Court’s entire analysis is its insistence that the City re
jected the test results “in sole reliance upon race-based statistics.” Ante,
at 584. See also ante, at 580, 587. But as the part of the story the Court
leaves out, see supra, at 609–618, so plainly shows—the long history of
rank discrimination against African-Americans in the firefighting profes
sion, the multiple flaws in New Haven’s test for promotions—“sole reli
ance” on statistics certainly is not descriptive of the CSB’s decision.

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631 Cite as: 557 U. S. 557 (2009)
Ginsburg, J., dissenting
screens out qualified applicants and would be difficult to jus
tify as grounded in business necessity. Should an employer
repeatedly reject test results, it would be fair, I agree, to
infer that the employer is simply seeking a racially balanced
outcome and is not genuinely endeavoring to comply with
Title VII.
D
The Court stacks the deck further by denying respondents
any chance to satisfy the newly announced strong-basis-in
evidence standard. When this Court formulates a new legal
rule, the ordinary course is to remand and allow the lower
courts to apply the rule in the first instance. See, e. g., John
son v. California, 543 U. S. 499, 515 (2005); Pullman-
Standard v. Swint, 456 U. S. 273, 291 (1982). I see no good
reason why the Court fails to follow that course today. In
deed, the sole basis for the Court’s peremptory ruling is
the demonstrably false pretension that respondents showed
“nothing more” than “a significant statistical disparity.”
Ante, at 587; see supra, at 630, n. 8.9
9 The Court’s refusal to remand for further proceedings also deprives
respondents of an opportunity to invoke 42 U. S. C. § 2000e–12(b) as a
shield to liability. Section 2000e–12(b) provides:
“In any action or proceeding based on any alleged unlawful employment
practice, no person shall be subject to any liability or punishment for or
on account of (1) the commission by such person of an unlawful employ
ment practice if he pleads and proves that the act or omission complained
of was in good faith, in conformity with, and in reliance on any written
interpretation or opinion of the [EEOC] . . . . Such a defense, if estab
lished, shall be a bar to the action or proceeding, notwithstanding that
(A) after such act or omission, such interpretation or opinion is modified
or rescinded or is determined by judicial authority to be invalid or of no
legal effect . . . .”
Specifically, given the chance, respondents might have called attention to
the EEOC guidelines set out in 29 CFR §§ 1608.3 and 1608.4 (2008). The
guidelines recognize that employers may “take affirmative action based
on an analysis which reveals facts constituting actual or potential adverse
impact.” § 1608.3(a). If “affirmative action” is in order, so is the lesser
step of discarding a dubious selection device.

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Ginsburg, J., dissenting
III
A
Applying what I view as the proper standard to the record
thus far made, I would hold that New Haven had ample cause
to believe its selection process was flawed and not justified
by business necessity. Judged by that standard, petitioners
have not shown that New Haven’s failure to certify the exam
results violated Title VII’s disparate-treatment provision.10
The City, all agree, “was faced with a prima facie case of
disparate-impact liability,” ante, at 586 (majority opinion):
The pass rate for minority candidates was half the rate for
nonminority candidates, and virtually no minority candidates
would have been eligible for promotion had the exam results
been certified. Alerted to this stark disparity, the CSB
heard expert and lay testimony, presented at public hear
ings, in an endeavor to ascertain whether the exams were
fair and consistent with business necessity. Its investiga
tion revealed grave cause for concern about the exam proc
ess itself and the City’s failure to consider alternative selec
tion devices.
Chief among the City’s problems was the very nature of
the tests for promotion. In choosing to use written and oral
exams with a 60/40 weighting, the City simply adhered to
the union’s preference and apparently gave no consideration
to whether the weighting was likely to identify the most
qualified fire-officer candidates.11 There is strong reason to
think it was not.
10 The lower courts focused on respondents’ “intent” rather than on
whether respondents in fact had good cause to act. See 554 F. Supp. 2d
142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would
be in order. But the Court has seen fit to preclude further proceedings.
I therefore explain why, if final adjudication by this Court is indeed appro
priate, New Haven should be the prevailing party.
11 This alone would have posed a substantial problem for New Haven in
a disparate-impact suit, particularly in light of the disparate results the
City’s scheme had produced in the past. See supra, at 614. Under the

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Ginsburg, J., dissenting
Relying heavily on written tests to select fire officers is a
questionable practice, to say the least. Successful fire offi
cers, the City’s description of the position makes clear, must
have the “[a]bility to lead personnel effectively, maintain dis
cipline, promote harmony, exercise sound judgment, and co
operate with other officials.” CA2 App. A432. These qual
ities are not well measured by written tests. Testifying
before the CSB, Christopher Hornick, an exam-design expert
with more than two decades of relevant experience, was em
phatic on this point: Leadership skills, command presence,
and the like “could have been identified and evaluated in a
much more appropriate way.” Id., at A1042–A1043.
Hornick’s commonsense observation is mirrored in case
law and in Title VII’s administrative guidelines. Courts
have long criticized written firefighter promotion exams for
being “more probative of the test taker’s ability to recall
what a particular text stated on a given topic than of his
firefighting or supervisory knowledge and abilities.” Vul
can Pioneers, Inc. v. New Jersey Dept. of Civil Serv., 625
F. Supp. 527, 539 (NJ 1985). A fire officer’s job, courts have
Uniform Guidelines on Employee Selection Procedures (Uniform Guide
lines), employers must conduct “an investigation of suitable alternative
selection procedures.” 29 CFR § 1607.3(B). See also Officers for Justice
v. Civil Serv. Comm’n, 979 F. 2d 721, 728 (CA9 1992) (“before utilizing a
procedure that has an adverse impact on minorities, the City has an obli
gation pursuant to the Uniform Guidelines to explore alternative proce
dures and to implement them if they have less adverse impact and are
substantially equally valid”). It is no answer to “presume” that the two
decades-old 60/40 formula was adopted for a “rational reason” because it
“was the result of a union-negotiated collective-bargaining agreement.”
Cf. ante, at 589. That the parties may have been “rational” says nothing
about whether their agreed-upon selection process was consistent with
business necessity. It is not at all unusual for agreements negotiated be
tween employers and unions to run afoul of Title VII. See, e. g., Peters
v. Missouri-Pacific R. Co., 483 F. 2d 490, 497 (CA5 1973) (an employment
practice “is not shielded [from the requirements of Title VII] by the facts
that it is the product of collective bargaining and meets the standards of
fair representation”).

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Ginsburg, J., dissenting
observed, “involves complex behaviors, good interpersonal
skills, the ability to make decisions under tremendous pres
sure, and a host of other abilities—none of which is easily
measured by a written, multiple choice test.” Firefighters
Inst. for Racial Equality v. St. Louis, 616 F. 2d 350, 359
(CA8 1980).12 Interpreting the Uniform Guidelines, EEOC
and other federal agencies responsible for enforcing equal
opportunity employment laws have similarly recognized
that, as measures of “interpersonal relations” or “ability to
function under danger (e. g., firefighters),” “[p]encil-and
paper tests . . . generally are not close enough approxima
tions of work behaviors to show content validity.” 44 Fed.
Reg. 12007 (1979). See also 29 CFR § 1607.15(C)(4).13
Given these unfavorable appraisals, it is unsurprising that
most municipal employers do not evaluate their fire-officer
candidates as New Haven does. Although comprehensive
statistics are scarce, a 1996 study found that nearly two
thirds of surveyed municipalities used assessment centers
12 See also Nash, 837 F. 2d, at 1538 (“the examination did not test the
one aspect of job performance that differentiated the job of firefighter
engineer from fire lieutenant (combat): supervisory skills”); Firefighters
Inst. for Racial Equality v. St. Louis, 549 F. 2d 506, 512 (CA8 1977)
(“there is no good pen and paper test for evaluating supervisory skills”);
Boston Chapter, NAACP, 504 F. 2d, at 1023 (“[T]here is a difference be
tween memorizing . . . fire fighting terminology and being a good fire
fighter. If the Boston Red Sox recruited players on the basis of their
knowledge of baseball history and vocabulary, the team might acquire
[players] who could not bat, pitch or catch.”).
13 Cf. Gillespie v. Wisconsin, 771 F. 2d 1035, 1043 (CA7 1985) (courts
must evaluate “the degree to which the nature of the examination proce
dure approximates the job conditions”). In addition to “content validity,”
the Uniform Guidelines discuss “construct validity” and “criterion valid
ity” as means by which an employer might establish the reliability of a
selection method. See 29 CFR § 1607.14(B)–(D). Content validity, how
ever, is the only type of validity addressed by the parties and “the only
feasible type of validation in these circumstances.” Brief for Industrial-
Organizational Psychologists as Amicus Curiae 7, n. 2 (hereinafter I–O
Psychologists Brief).

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635 Cite as: 557 U. S. 557 (2009)
Ginsburg, J., dissenting
(“simulations of the real world of work”) as part of their
promotion processes. P. Lowry, A Survey of the Assess
ment Center Process in the Public Sector, 25 Public Person
nel Management 307, 315 (1996). That figure represented a
marked increase over the previous decade, see ibid., so the
percentage today may well be even higher. Among munici
palities still relying in part on written exams, the median
weight assigned to them was 30 percent—half the weight
given to New Haven’s written exam. Id., at 309.
Testimony before the CSB indicated that these alternative
methods were both more reliable and notably less discrimi
natory in operation. According to Donald Day of the Inter
national Association of Black Professional Firefighters,
nearby Bridgeport saw less skewed results after switching
to a selection process that placed primary weight on an oral
exam. CA2 App. A830–A832; see supra, at 614. And Hor
nick described assessment centers as “demonstrat[ing] dra
matically less adverse impacts” than written exams. CA2
App. A1040.14 Considering the prevalence of these proven
alternatives, New Haven was poorly positioned to argue that
promotions based on its outmoded and exclusionary selection
process qualified as a business necessity. Cf. Robinson v.
Lorillard Corp., 444 F. 2d 791, 798, n. 7 (CA4 1971) (“It
should go without saying that a practice is hardly ‘necessary’
if an alternative practice better effectuates its intended pur
pose or is equally effective but less discriminatory.”).15
14 See also G. Thornton & D. Rupp, Assessment Centers in Human Re
source Management 15 (2006) (“Assessment centers predict future success,
do not cause adverse impact, and are seen as fair by participants.”);
W. Cascio & H. Aguinis, Applied Psychology in Human Resource Manage
ment 372 (6th ed. 2005) (“research has demonstrated that adverse impact
is less of a problem in an [assessment center] as compared to an apti
tude test”). Cf. Firefighters Inst. for Racial Equality, 549 F. 2d, at 513
(recommending assessment centers as an alternative to written exams).
15 Finding the evidence concerning these alternatives insufficiently de
veloped to “create a genuine issue of fact,” ante, at 591, the Court effec
tively confirms that an employer cannot prevail under its strong-basis

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Ginsburg, J., dissenting
Ignoring the conceptual and other defects in New Haven’s
selection process, the Court describes the exams as “pain
staking[ly]” developed to test “relevant” material and on
that basis finds no substantial risk of disparate-impact liabil
ity. See ante, at 588. Perhaps such reasoning would have
sufficed under Wards Cove, which permitted exclusionary
practices as long as they advanced an employer’s “legiti
mate” goals. 490 U. S., at 659. But Congress repudiated
Wards Cove and reinstated the “business necessity” rule
attended by a “manifest relationship” requirement. See
Griggs, 401 U. S., at 431–432. See also supra, at 624. Like
the chess player who tries to win by sweeping the opponent’s
pieces off the table, the Court simply shuts from its sight
the formidable obstacles New Haven would have faced in
defending against a disparate-impact suit. See Lanning v.
Southeastern Pa. Transp. Auth., 181 F. 3d 478, 489 (CA3
1999) (“Judicial application of a standard focusing solely
on whether the qualities measured by an . . . exam bear
some relationship to the job in question would impermissibly
write out the business necessity prong of the Act’s chosen
standard.”).
in-evidence standard unless the employer decisively proves a disparate
impact violation against itself. The Court’s specific arguments are un
availing. First, the Court suggests, changing the oral/written weighting
may have violated Title VII’s prohibition on altering test scores. Ante,
at 590. No one is arguing, however, that the results of the exams given
should have been altered. Rather, the argument is that the City could
have availed itself of a better option when it initially decided what selec
tion process to use. Second, with respect to assessment centers, the
Court identifies “statements to the CSB indicat[ing] that the Department
could not have used [them] for the 2003 examinations.” Ante, at 591.
The Court comes up with only a single statement on this subject—an
offhand remark made by petitioner Ricci, who hardly qualifies as an expert
in testing methods. See ante, at 574. Given the large number of munici
palities that regularly use assessment centers, it is impossible to fathom
why the City, with proper planning, could not have done so as well.

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Ginsburg, J., dissenting
That IOS representative Chad Legel and his team may
have been diligent in designing the exams says little about
the exams’ suitability for selecting fire officers. IOS worked
within the City’s constraints. Legel never discussed with
the City the propriety of the 60/40 weighting and “was not
asked to consider the possibility of an assessment center.”
CA2 App. A522. See also id., at A467. The IOS exams,
Legel admitted, had not even attempted to assess “command
presence”: “[Y]ou would probably be better off with an as
sessment center if you cared to measure that.” Id., at A521.
Cf. Boston Chapter, NAACP, Inc. v. Beecher, 504 F. 2d 1017,
1021–1022 (CA1 1974) (“A test fashioned from materials
pertaining to the job . . . superficially may seem job
related. But what is at issue is whether it demonstrably
selects people who will perform better the required on-the
job behaviors.”).
In addition to the highly questionable character of the
exams and the neglect of available alternatives, the City had
other reasons to worry about its vulnerability to disparate
impact liability. Under the City’s ground rules, IOS was not
allowed to show the exams to anyone in the New Haven Fire
Department prior to their administration. This “precluded
[IOS] from being able to engage in [its] normal subject mat
ter expert review process”—something Legel described as
“very critical.” CA2 App. A477, A506. As a result, some
of the exam questions were confusing or irrelevant, and the
exams may have overtested some subject-matter areas while
missing others. See, e. g., id., at A1034–A1035, A1051.
Testimony before the CSB also raised questions concerning
unequal access to study materials, see id., at A857–A861, and
the potential bias introduced by relying principally on job
analyses from nonminority fire officers to develop the exams,
see id., at A1063–A1064.16 See also supra, at 613–614, 617.
16 The I–O Psychologists Brief identifies still other, more technical flaws
in the exams that may well have precluded the City from prevailing in a

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638 RICCI v. DeSTEFANO
Ginsburg, J., dissenting
The Court criticizes New Haven for failing to obtain a
“technical report” from IOS, which, the Court maintains,
would have provided “detailed information to establish the
validity of the exams.” Ante, at 589. The record does not
substantiate this assertion. As Legel testified during his
deposition, the technical report merely summarized “the
steps that [IOS] took methodologically speaking,” and would
not have established the exams’ reliability. CA2 App. A461.
See also id., at A462 (the report “doesn’t say anything that
other documents that already existed wouldn’t say”).
In sum, the record solidly establishes that the City had
good cause to fear disparate-impact liability. Moreover, the
Court supplies no tenable explanation why the evidence of
the tests’ multiple deficiencies does not create at least a tri
able issue under a strong-basis-in-evidence standard.
B
Concurring in the Court’s opinion, Justice Alito asserts
that summary judgment for respondents would be improper
even if the City had good cause for its noncertification deci
sion. A reasonable jury, he maintains, could have found that
respondents were not actually motivated by concern about
disparate-impact litigation, but instead sought only “to pla
cate a politically important [African-American] constitu
disparate-impact suit. Notably, the exams were never shown to be suit
ably precise to allow strict rank ordering of candidates. A difference of
one or two points on a multiple-choice exam should not be decisive of an
applicant’s promotion chances if that difference bears little relationship to
the applicant’s qualifications for the job. Relatedly, it appears that the
line between a passing and failing score did not accurately differentiate
between qualified and unqualified candidates. A number of fire-officer
promotional exams have been invalidated on these bases. See, e. g.,
Guardians Assn., 630 F. 2d, at 105 (“When a cutoff score unrelated to
job performance produces disparate racial results, Title VII is violated.”);
Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv., 625 F. Supp. 527,
538 (NJ 1985) (“[T]he tests here at issue are not appropriate for ranking
candidates.”).

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Ginsburg, J., dissenting
ency.” Ante, at 597. As earlier noted, I would not oppose
a remand for further proceedings fair to both sides. See
supra, at 632, n. 10. It is the Court that has chosen to short
circuit this litigation based on its pretension that the City
has shown, and can show, nothing more than a statistical dis
parity. See supra, at 630, n. 8, 631. Justice Alito com
pounds the Court’s error.
Offering a truncated synopsis of the many hours of deliber
ations undertaken by the CSB, Justice Alito finds evidence
suggesting that respondents’ stated desire to comply with
Title VII was insincere, a mere “pretext” for discrimination
against white firefighters. Ante, at 596–597. In support of
his assertion, Justice Alito recounts at length the alleged
machinations of Rev. Boise Kimber (a local political activist),
Mayor John DeStefano, and certain members of the mayor’s
staff. See ante, at 598–604.
Most of the allegations Justice Alito repeats are drawn
from petitioners’ statement of facts they deem undisputed, a
statement displaying an adversarial zeal not uncommonly
found in such presentations.17 What cannot credibly be de
17 Some of petitioners’ so-called facts find little support in the record,
and many others can scarcely be deemed material. Petitioners allege, for
example, that City officials prevented New Haven’s fire chief and assistant
chief from sharing their views about the exams with the CSB. App. to
Pet. for Cert. in No. 07–1428, p. 228a. None of the materials petitioners
cite, however, “suggests” that this proposition is accurate. Cf. ante, at 600.
In her deposition testimony, City official Karen Dubois-Walton specifically
denied that she or her colleagues directed the chief and assistant chief
not to appear. App. to Pet. for Cert. in No. 07–1428, p. 850a. Moreover,
contrary to the insinuations of petitioners and Justice Alito, the state
ments made by City officials before the CSB did not emphasize allegations
of cheating by test takers. Cf. ante, at 602–603. In her deposition,
Dubois-Walton acknowledged sharing the cheating allegations not with the
CSB, but with a different City commission. App. to Pet. for Cert. in
No. 07–1428, p. 837a. Justice Alito also reports that the City’s attorney
advised the mayor’s team that the way to convince the CSB not to certify
was “to focus on something other than ‘a big discussion re: adverse im
pact’ law.” Ante, at 603 (quoting App. to Pet. for Cert. in No. 07–1428,

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640 RICCI v. DeSTEFANO
Ginsburg, J., dissenting
nied, however, is that the decision against certification of the
exams was made neither by Kimber nor by the mayor and
his staff. The relevant decision was made by the CSB, an
unelected, politically insulated body. It is striking that Jus
tice Alito’s concurrence says hardly a word about the CSB
itself, perhaps because there is scant evidence that its moti
vation was anything other than to comply with Title VII’s
disparate-impact provision. Notably, petitioners did not
even seek to take depositions of the two commissioners who
voted against certification. Both submitted uncontested af
fidavits declaring unequivocally that their votes were “based
solely on [their] good faith belief that certification” would
have discriminated against minority candidates in violation
of federal law. CA2 App. A1605, A1611.
Justice Alito discounts these sworn statements, sug
gesting that the CSB’s deliberations were tainted by the
preferences of Kimber and City officials, whether or not the
CSB itself was aware of the taint. Kimber and City officials,
Justice Alito speculates, decided early on to oppose certi
fication and then “engineered” a skewed presentation to the
CSB to achieve their preferred outcome. Ante, at 606.
As an initial matter, Justice Alito exaggerates the in
fluence of these actors. The CSB, the record reveals, de
signed and conducted an inclusive decisionmaking process,
in which it heard from numerous individuals on both sides
of the certification question. See, e. g., CA2 App. A1090.
Kimber and others no doubt used strong words to urge the
CSB not to certify the exam results, but the CSB received
“pressure” from supporters of certification as well as oppo
nents. Cf. ante, at 600. Petitioners, for example, engaged
counsel to speak on their behalf before the CSB. Their
counsel did not mince words: “[I]f you discard these results,”
she warned, “you will get sued. You will force the taxpay
p. 458a). This is a misleading abbreviation of the attorney’s advice. Fo
cusing on the exams’ defects and on disparate-impact law is precisely what
he recommended. See id., at 458a–459a.

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641 Cite as: 557 U. S. 557 (2009)
Ginsburg, J., dissenting
ers of the city of New Haven into protracted litigation.”
CA2 App. A816. See also id., at A788.
The local firefighters union—an organization required by
law to represent all the City’s firefighters—was similarly
outspoken in favor of certification. Discarding the test re
sults, the union’s president told the CSB, would be “totally
ridiculous.” Id., at A806. He insisted, inaccurately, that
the City was not at risk of disparate-impact liability because
the exams were administered pursuant to “a collective bar
gaining agreement.” Id., at A1137. Cf. supra, at 632–633,
n. 11. Never mentioned by Justice Alito in his attempt
to show testing expert Christopher Hornick’s alliance with
the City, ante, at 603–604, the CSB solicited Hornick’s tes
timony at the union’s suggestion, not the City’s. CA2 App.
A1128. Hornick’s cogent testimony raised substantial
doubts about the exams’ reliability. See supra, at 615–616.18
There is scant cause to suspect that maneuvering or over
heated rhetoric, from either side, prevented the CSB from
evenhandedly assessing the reliability of the exams and ren
dering an independent, good-faith decision on certification.
Justice Alito acknowledges that the CSB had little pa
tience for Kimber’s antics. Ante, at 600–602.19 As to peti
tioners, Chairman Segaloff—who voted to certify the exam
18 City officials, Justice Alito reports, sent Hornick newspaper ac
counts and other material about the exams prior to his testimony. Ante,
at 603. Some of these materials, Justice Alito intimates, may have
given Hornick an inaccurate portrait of the exams. But Hornick’s testi
mony before the CSB, viewed in full, indicates that Hornick had an accu
rate understanding of the exam process. Much of Hornick’s analysis fo
cused on the 60/40 weighting of the written and oral exams, something
that neither the Court nor the concurrences even attempt to defend. It
is, moreover, entirely misleading to say that the City later hired union
proposed Hornick as a “rewar[d]” for his testimony. Cf. ibid.
19 To be clear, the board of fire commissioners on which Kimber served
is an entity separate from the CSB. Kimber was not a member of the
CSB. Kimber, Justice Alito states, requested a private meeting with
the CSB. Ante, at 601. There is not a shred of evidence that a private
meeting with Kimber or anyone else took place.

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642 RICCI v. DeSTEFANO
Ginsburg, J., dissenting
results—dismissed the threats made by their counsel as un
helpful and needlessly “inflammatory.” CA2 App. A821.
Regarding the views expressed by City officials, the CSB
made clear that they were entitled to no special weight. Id.,
at A1080.20
In any event, Justice Alito’s analysis contains a more
fundamental flaw: It equates political considerations with un
lawful discrimination. As Justice Alito sees it, if the
mayor and his staff were motivated by their desire “to pla
cate a . . . racial constituency,” ante, at 597, then they en
gaged in unlawful discrimination against petitioners. But
Justice Alito fails to ask a vital question: “[P]lacate” how?
That political officials would have politics in mind is hardly
extraordinary, and there are many ways in which a politician
can attempt to win over a constituency—including a racial
constituency—without engaging in unlawful discrimination.
As courts have recognized, “[p]oliticians routinely respond to
bad press . . . , but it is not a violation of Title VII to take
advantage of a situation to gain political favor.” Henry v.
Jones, 507 F. 3d 558, 567 (CA7 2007).
The real issue, then, is not whether the mayor and his staff
were politically motivated; it is whether their attempt to
score political points was legitimate (i. e., nondiscrimina
tory). Were they seeking to exclude white firefighters from
promotion (unlikely, as a fair test would undoubtedly result
in the addition of white firefighters to the officer ranks), or
did they realize, at least belatedly, that their tests could
be toppled in a disparate-impact suit? In the latter case,
20 Justice Alito points to evidence that the mayor had decided not to
make promotions based on the exams even if the CSB voted to certify the
results, going so far as to prepare a press release to that effect. Ante,
at 604. If anything, this evidence reinforces the conclusion that the
CSB—which made the noncertification decision—remained independent
and above the political fray. The mayor and his staff needed a contin
gency plan precisely because they did not control the CSB.

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Cite as: 557 U. S. 557 (2009) 643
Ginsburg, J., dissenting
there is no disparate-treatment violation. Justice Alito,
I recognize, would disagree. In his view, an employer’s ac
tion to avoid Title VII disparate-impact liability qualifies as
a presumptively improper race-based employment decision.
See ante, at 597. I reject that construction of Title VII.
See supra, at 625–627. As I see it, when employers en
deavor to avoid exposure to disparate-impact liability, they
do not thereby encounter liability for disparate treatment.
Applying this understanding of Title VII, supported by
Griggs and the long line of decisions following Griggs, see
supra, at 623–624, and nn. 3–4, the District Court found no
genuine dispute of material fact. That court noted, particu
larly, the guidance furnished by Second Circuit precedent.
See supra, at 619. Petitioners’ allegations that City officials
took account of politics, the District Court determined, sim
ply “d[id] not suffice” to create an inference of unlawful dis
crimination. 554 F. Supp. 2d, at 160, n. 12. The noncertifi
cation decision, even if undertaken “in a political context,”
reflected a legitimate “intent not to implement a promotional
process based on testing results that had an adverse impact.”
Id., at 158, 160. Indeed, the District Court perceived
“a total absence of any evidence of discriminatory animus
towards [petitioners].” Id., at 158. See also id., at 162
(“Nothing in the record in this case suggests that the City
defendants or CSB acted ‘because of ’ discriminatory ani
mus toward [petitioners] or other non-minority applicants
for promotion.”). Perhaps the District Court could have
been more expansive in its discussion of these issues, but
its conclusions appear entirely consistent with the record
before it.21
21 The District Court, Justice Alito writes, “all but conceded that a
jury could find that the City’s asserted justification was pretextual” by
“admitt[ing] that ‘a jury could rationally infer that city officials worked
behind the scenes to sabotage the promotional examinations because they
knew that, were the exams certified, the Mayor would incur the wrath of

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644 RICCI v. DeSTEFANO
Ginsburg, J., dissenting
It is indeed regrettable that the City’s noncertification de
cision would have required all candidates to go through an
other selection process. But it would have been more re
grettable to rely on flawed exams to shut out candidates who
may well have the command presence and other qualities
needed to excel as fire officers. Yet that is the choice the
Court makes today. It is a choice that breaks the promise
of Griggs that groups long denied equal opportunity would
not be held back by tests “fair in form, but discriminatory in
operation.” 401 U. S., at 431.
* * *
These cases present an unfortunate situation, one New
Haven might well have avoided had it utilized a better selec
tion process in the first place. But what this litigation does
not present is race-based discrimination in violation of Title
VII. I dissent from the Court’s judgment, which rests on
the false premise that respondents showed “a significant sta
tistical disparity,” but “nothing more.” See ante, at 587.
[Rev. Boise] Kimber and other influential leaders of New Haven’s African-
American community.’ ” Ante, at 598, 608 (quoting 554 F. Supp. 2d, at
162). The District Court drew the quoted passage from petitioners’ lower
court brief, and used it in reference to a First Amendment claim not before
this Court. In any event, it is not apparent why these alleged political
maneuvers suggest an intent to discriminate against petitioners. That
City officials may have wanted to please political supporters is entirely
consistent with their stated desire to avoid a disparate-impact violation.
Cf. Ashcroft v. Iqbal, 556 U. S. 662, 682 (2009) (allegations that senior Gov
ernment officials condoned the arrest and detention of thousands of Arab
Muslim men following the September 11 attacks failed to establish even a
“plausible inference” of unlawful discrimination sufficient to survive a mo
tion to dismiss).

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Reporter’s Note
The next page is purposely numbered 901. The numbers between 644
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita
tions available upon publication of the preliminary prints of the United
States Reports.