CYIL Vol. 4, 2013

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) .