Ricci v. DeStefano, 557 U.S. 557 (2009)

(b) Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an [p. 558] 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.

(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie [p. 559] 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.

(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 [p. 560] cannot create a genuine issue of fact based on a few stray (and contradic tory) statements in the record. Pp. 589–592.

In the fire department of New Haven, Connecticut—as in emergency-service agencies throughout the Nation—fire [p. 562] 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.

Certain white and Hispanic firefighters who likely would have been promoted based on their good test performance [p. 563] 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.

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 [p. 564] 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.

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 [p. 565] 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.

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 [p. 566] 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.

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 [p. 567] in line with results of the Department’s previous promo tional examinations.

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 [p. 568] 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.

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 [p. 569] discussed asking a panel of experts to review the examina tions and advise the CSB whether to certify the results.

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 [p. 571] 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.

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 [p. 572] 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.

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 [p. 573] having adverse impact, whereas we are assured that these will be.” Id., at A1107, A1108.

Burgett (the human resources director) asked the CSB to discard the examination results. She, too, relied on Hor [p. 574] 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.

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 [p. 576] 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.

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. [p. 577] 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”).

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 [p. 578] “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”).

Petitioners allege that when the CSB refused to certify the captain and lieutenant exam results based on the race of [p. 579] 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.

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 [p. 580] 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.

Petitioners next suggest that an employer in fact must be in violation of the disparate-impact provision before it can [p. 581] 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.” [p. 582] 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.

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 [p. 583] 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.

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 [p. 584] 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.

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 [p. 587] 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.

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 [p. 588] 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.

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 [p. 590] 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.

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 [p. 592] 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.

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 [p. 593] 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 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 [p. 596] later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

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 [p. 597] 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.

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 [p. 599] 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).

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 [p. 600] 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

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 [p. 601] 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.

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 [p. 602] CSB member eventually voted not to certify the test results. Id., at 586a–587a.

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 [p. 603] 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 [p. 604] 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).

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 [p. 605] 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.

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 [p. 606] 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.

The least employee-friendly standard asks only whether “the actual decisionmaker” acted with discriminatory intent, see Hill v. Lockheed Martin Logistics Management, Inc., [p. 607] 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 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 [p. 608] 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 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 [p. 609] 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

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 [p. 610] 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.”).

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) [p. 611] 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.

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 [p. 612] 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.”).

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 [p. 613] 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?

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 [p. 614] 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.

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 [p. 615] 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.

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 [p. 617] 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.

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 [p. 618] 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.

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 [p. 619] 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.

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 [p. 620] 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.

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 [p. 621] 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.

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 [p. 622] ployer the burden of showing that any given requirement . . . ha[s] a manifest relationship to the employment in question.” Id., at 432.

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 [p. 623] 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

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 [p. 625] 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.

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 [p. 626] 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).

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 [p. 628] parate Impact: Round Three*, 117 Harv. L. Rev. 493, 585 (2003).

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 [p. 629] 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.

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 [p. 631] 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.

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 [p. 634] 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 [p. 635] (“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.

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 [p. 639] 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.

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 [p. 640] 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.

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. 641] ers of the city of New Haven into protracted litigation.” CA2 App. A816. See also id., at A788.

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 [p. 642] 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

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, [p. 643] 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.