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Damned If You Do and Damned If You Don’t: Title VII and Public Employee Promotion Disparate Treatment and Disparate Impact Litigation


Robert N. Roberts has taught at James Madison University since 1982, and he has taught courses on administrative law and the legal environment of public administration and human resource management since the early 1980s. He holds a juris doctorate and a PhD in public administration from Syracuse University. His research has appeared in Public Administration Review, International Journal of Public Administration, Public Integrity, PS: Political Science and Politics, Politics and Policy, and the Review of Public Personnel Administration.


What has been the impact of the U.S. Supreme Court’s 2009 decision in Ricci v. Destefano on the selection and promotion practices of public employers?; Relying solely on circumstantial evidence, the Supreme Court held that the Civil Service Board of New Haven, Connecticut, had engaged in Title VII disparate treatment discrimination by refusing to certify the results of a promotion examination that led, in turn, to a disparate impact on African American firefighters. To limit the discretion of public employers to disregard such selection and promotion exam results, the Ricci majority held that a public employer must “have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to the take the race-conscious discriminatory action.” This article argues that the decision effectively prohibits public employers from rejecting the results of selection and promotion instruments, even though there is evidence that screening instruments inequitably affect protected groups. It also forces public employers to become more careful in developing selection and promotion examinations or face the possibility of costly Title VII litigation.