The Virginia Business Litigation Blog
The Virginia city of Portsmouth agreed to settle a race discrimination case brought by the Department of Justice on March 25, 2009, the same day the suit was filed. In the lawsuit, the DOJ accused the city of discriminatory hiring practices against African Americans in its hiring of entry-level firefighters, in violation of Title VII of the Civil Rights Act of 1964.
While the civilian labor force of Portsmouth is about 46% African American, only 12.4% of the city’s firefighters were African American. The DOJ attributed the discrepancy largely to the administration of the “National Firefighter Selection Test,” a written examination with a pass rate of around 86% for whites but just 42% among African Americans, a “statistically significant” difference, according to the lawsuit.
The case serves as a reminder that Title VII protects individuals not only from intentional acts of race discrimination, but in some circumstances may even protect such individuals from unintentional discrimination when such is the result of employment practices that may be well-intentioned but nevertheless have a “disparate impact” on members of a particular racial group. As the United States Supreme Court held in 1971, Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity.” Griggs v. Duke Power Co.,
401 U.S. 424, 431.
The DOJ did not allege the city’s motives were discriminatory; only that the standardized test–while neutral on its face–resulted in the rejection of a disproportionate number of African Americans. Because there was no business necessity for the test, the disparate impact was alleged to violate Title VII.
Under the terms of the settlement, the City of Portsmouth will stop administering the test and will deposit $145,000 into a settlement fund that will be used to award “back pay” to eligible African Americans determined to have been harmed by the city’s employment practices.