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THE BURDEN OF PROOF IN EUROPEAN ANTIǧDISCRIMINATION LAW
6. Perspectives
Two relatively new judicial decisions not only show the dilemma arising from the
reversal of the burden of proof, but also suggest a possible solution.
In 2009, the U.S. Supreme Court ruled in the case
Ricci v. De Stefano
.
33
The
dispute concerned the allocation of leadership positions within the professional fire
brigade of New Haven. The City of New Haven had tried to ensure that the exam
was race-neutral and tested relevant professional skills only. However, it turned out
that male candidates belonging to the majority population had been significantly
more successful than their African-American colleagues. In this situation the City,
as the employer, began to worry about possible anti-discrimination law suits filed by
unsuccessful candidates of African-American origin, and it finally decided to cancel
the admission procedure. As a reaction to this step, some successful candidates filed
a lawsuit against the City and claimed that they had been discriminated against based
on their membership to the ethnic majority population. Among other things, they
also explained that they had invested considerable effort in their preparation for the
exam. In its remarkable judgment, which was adopted by a narrow majority of five
to four votes, the Supreme Court concluded that the City did not have the right to
cancel the test results with the sole argument that they were not statistically balanced
in terms of race.
Beyond the interesting debate concerning the policy of positive discrimination,
which is reflected in the City’s decision to cancel the results of the test, the proceedings
before the Supreme Court highlighted the key role of procedural issues. According to
the US Human Rights Act of 1991
34
the complaining party shall demonstrate that
the employment practice of the respondent causes a disparate impact on the basis of
race, colour, religion, sex, or national origin. Subsequently, the burden of proof shifts
to the respondent, who shall demonstrate that the challenged practice is job related
for the position in question and consistent with business necessity.
In the case of
Ricci v. De Stefano
an almost absurd situation occurred. It was
not actually disputed that the test had an unequal statistical impact on African-
American candidates. So when the City, in fear of potential anti-discrimination law
suits, invalidated the test results, it claimed that the test was probably not objective.
If the City sustained the exam results, it would most certainly lose the case, because
the claims of unsuccessful African-American candidates would have been based on
convincing
prima facie
evidence. The situation is, however, delicate, because the City
was accused of discrimination and lost its dispute with the successful candidates. So
whatever approach was chosen by the City with regard to anti-discrimination law
and the burden-of-proof rule, there was no way out of this dilemma. Anyway, the
case of the City as the employer was a hopeless one.
33
129 S. Ct. 2658; 174L. Ed. 2d 490 (2009).
34
Civil Rights Act of 1991 (
Pub. L. 102-166)
.