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certified the results, it ran the risk of minority employees suing under Title VII, claiming that the examinations were discriminatory. If it threw out the results, it ran the risk of white employees suing under Title VII claim- ing that throwing out the exams, since such action was based on race, was discriminatory.
To the city, this seemed to be one of those situations where it could engage in discrimination in order to avoid dis- crimination. For example, the city could certify the exam results, which could result in the disparate treatment of minority employees, but avoiding a dis- parate impact against white employ- ees. On the other hand, the city could throw out the results, which could result in the disparate treatment of white employees, while avoiding a disparate impact against minority employees. The
trick was deciding which one to do. Picking what the city felt was the lesser of two evils, it threw out the results. As feared, white firefighters sued, alleging that discarding the test results discriminated against them based on
their race in violation of Title VII. Borrowing from equal protection law, the court applied a “strong basis in evidence test.” This means that in order for a government to permissibly engage in disparate treatment in the name of avoiding a disparate impact, there must be a “strong basis in evidence” that the
disparate treatment was necessary. The question before the court was whether avoiding a disparate impact against minority employees was a strong enough basis to justify the disparate treatment of the white employees (that
is, throwing out the exam results). According to the court, the city could
demonstrate a strong basis in evidence if it could show that, had it not thrown out the test scores, that it would have been liable under Title VII based on an action from the minority employees. But fear of litigation alone does not rise to the level of a strong basis in evi- dence. In addition, the court deter- mined that a showing of significant sta- tistical disparity alone (whites outperforming minorities) is far from a strong basis in evidence that the city would have been liable under Title VII had it certified the test results.
The court found that the city could have been liable under Title VII for cer- tifying the exam results only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less dis- criminatory alternative that served the city’s needs but that the city refused to
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