In a 5-4 decision sure to take center stage at Supreme Court nominee Judge Sonia Sotomayor's upcoming confirmation hearings, in Ricci v. DeStefano (07-1428) and a companion case with the same name (08-328), the Court ruled that the City of New Haven unlawfully discriminated against a group of firefighters when it threw out the results of their successful promotional exams because it feared a lawsuit by black candidates who failed the same test.

Justice Anthony M. Kennedy, writing for the Court, held that the City's fear of litigation by racial minorities did not justify intentional discrimination against white employees based on their race absent a "strong basis in evidence" for believing those minorities could prevail on a theory of disparate impact.  Although the black employees had fared far worse on the promotional exams at the heart of the case, Justice Kennedy reasoned, the City failed to demonstrate a strong basis for potential liability to them for disparate impact. A disparate impact claim arises where an employer's policy, test or standard that is neutral on its face nevertheless results in an unfair bias against a specific minority group.  Absent a compelling business reason for such a policy, it violates Title VII on the basis of its unlawful disparate impact.

Speaking for the minority, Justice Ginsburg opined that the ruling lacked "staying power" because it largely ignored the importance of Title VII's disparate impact theory in ensuring that employment tests aren't unfairly used to block minorities from hiring and promotion. Justices Stephen Breyer, David Souter, and John Paul Stevens joined Justice Ginsberg in the dissent.

The Ricci decision demonstrates a clear battle line within the Court with regard to employment discrimination.  Judge Sotomayor would replace Judge Souter, leaving the split seen in Ricci unchanged - for now.