LexMonitor | Discussion regarding http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

City violated Title VII by discarding racially disproportionate test results (5-4)

Ross@LawMemo.Com (Ross Runkel) — Mon, 29 Jun 2009 15:58:56 GMT

Today the US Supreme Court decided Ricci v. DeStefano (US Supreme Court 06/29/2009) The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant. The examination resulted in disproportionately higher scores for white...

Today the US Supreme Court decided Ricci v. DeStefano (US Supreme Court 06/29/2009)

The New Haven, Connecticut fire department administered civil service tests for applicants for positions as captain and lieutenant. The examination resulted in disproportionately higher scores for white applicants than for minority applicants. The department decided not to implement the exam results for fear that doing so would put them in violation of Title VII. Therefore, positions remained unfilled. A group of white and Hispanic applicants sued claiming a violation of Title VII and of the equal protection clause. The trial court granted summary judgment for the defendants, and the 2nd Circuit affirmed.

The US Supreme Court reversed, holding that the City’s action in discarding the tests violated Title VII.

Official Syllabus:

New Haven, Conn. (City), uses objective examinations to identify those firefighters best qualified for promotion. When the results of such an exam to fill vacant lieutenant and captain positions showed that white candidates had outperformed minority candidates, a rancorous public debate ensued. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City threw out the results based on the statistical racial disparity. Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.
Held: The City’s action in discarding the tests violated Title VII.

(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impace, the employer may defend by demonstrating that its policy or practice is "job related for the position in question and consistent with business necessity." Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C).

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

(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard.

(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie 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 alternative 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 test was deficient in either respect.

(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity.

(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, respondents 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 candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results, §2000e–2(l). Third, testimony asserting 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 statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record.
(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

530 F. 3d 87, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

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Supreme Court Rules in Ricci

Mon, 29 Jun 2009 14:10:42 GMT

The Supreme Court has just ruled, in a 5-4 decision, for the firefighters in Ricci, et al. v. DeStefano, et al. Follow live updates via SCOTUSblog. Update: Here’s a link to the opinion.

The Supreme Court has just ruled, in a 5-4 decision, for the firefighters in Ricci, et al. v. DeStefano, et al.

Follow live updates via SCOTUSblog.

Update: Here’s a link to the opinion.

Access online today's Order List and final decisions in cases argued this term at the U.S. Supreme Court

appellateblog@hotmail.com (Howard J. Bashman) — Mon, 29 Jun 2009 14:50:27 GMT

Access online today's Order List and final decisions in cases argued this term at the U.S. Supreme Court: At 10 a.m. eastern time today, the Supreme Court of the United States will issue an Order List and its rulings in the final three undecided argued cases from this Term.

In alphabetical order, the three remaining undecided cases are:

1. Citizens United v. Federal Election Comm'n, No. 08-205. You can access the oral argument transcript at this link. Update: There will be no ruling in the Citizens United case today because the Court has ordered reargument next Term.

2. Cuomo v. Clearing House Assn., L.L.C., No. 08-453. You can access the Court's ruling at this link (update: now available online) and the oral argument transcript at this link. Justice Antonin Scalia delivered the opinion of the Court, in which Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined. Justice Clarence Thomas issued an opinion concurring in part and dissenting in part, in which the Chief Justice and Justices Anthony M. Kennedy and Samuel A. Alito, Jr. joined. You can also access the Cuomo ruling by clicking here.

3. Ricci v. DeStefano, No. 07-1428. You can access the Court's ruling at this link (udpate: now available online) and the oral argument transcript at this link. Justice Kennedy delivered the opinion of the Court, in which the Chief Justice and Justices Scalia, Thomas, and Alito, Jr. joined. Justice Scalia also issued a concurring opinion, Justice Alito also issued a concurring opinion, in which Justices Scalia and Thomas joined. Justice Ginsburg issued a dissenting opinion, in which Justices Stevens, Souter, and Breyer joined. You can also access the Ricci ruling by clicking here.

You can access today's Order List at this link (update: now available online). The Court granted review in six cases.

"SCOTUSblog" will provide live coverage of the announcement of today's rulings via a post you can access here.

Decisions in argued cases are announced in reverse order of seniority of the Justice who wrote the opinion of the Court or whose opinion announces the judgment of the Court. On Thursday of last week, the Court was posting its opinions in argued cases almost immediately after the decision was announced in the courtroom.

In early news coverage, The Associated Press has reports headlined"Court rules for white firefighters over promotions"; "Court: AG must go to court to probe nat'l banks"; "Court fails to decide on anti-Hillary movie"; "Court takes case over licensing of NFL apparel"; "Court takes on international child custody case"; "Court won't hear Sept. 11 claims vs. Saudi Arabia"; "High court won't block remote storage DVR"; "Court won't decide privacy of prescription pads"; "Court rejects Mo. appeal on funeral protest law": and "Court won't get involved in Bible club question."

Supreme Court Holds for Firefighters in Reverse Discrimination Case

jSumner@littler.com (Jay Sumner) — Mon, 29 Jun 2009 16:58:27 GMT

The City of New Haven’s failure to use test results that would have disqualified any African American firefighters from receiving a promotion was discriminatory against the white and Hispanic test takers who received qualifying scores, and was therefore unlawful under Title VII of the Civil Rights Act, according to the U.S. Supreme Court in Ricci v. DeStefano. (pdf) In this closely decided and much-anticipated decision, the Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an 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.”

Background

In 2003, the City of New Haven, Connecticut issued promotion-qualifying exams to 118 firefighters, as required by union contract. After certifying the test results, the City – pursuant to a municipal regulation – was to promote from the group receiving the top three scores. The City decided against certifying the test scores, however, after it was determined that no African American and only two Hispanic applicants qualified for an immediate promotion. The rationale for failing to certify the results was that the City would subject itself to claims of disparate impact race discrimination under Title VII of the Civil Rights Act. The 17 white and two Hispanic firefighters who comprised the pool of applicants earning the three highest exam scores – and thus would have been among those eligible to receive promotions had the results been certified – filed suit. These plaintiffs argued that the City’s failure to certify the results violated Title VII’s prohibition on racially-based disparate treatment, as well as the Constitution’s Equal Protection clause. The district court granted the City’s motion for summary judgment, finding that the City lawfully acted to insulate itself from charges of disparate impact discrimination. On appeal, a three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s decision. Judge Sonia Sotomayor – President Obama’s pick to replace Justice David Souter on the U.S. Supreme Court – was a member of that panel. The Second Circuit subsequently issued a 7-6 opinion en banc decision in this matter replacing the summary order affirming the district court’s decision. In a 5-4 decision, the U.S. Supreme Court reversed and remanded.

Reasoning

Title VII of the Civil Rights Act prohibits both direct discrimination (disparate treatment) and in certain circumstances indirect discrimination (disparate impact). In the second scenario, an employer’s facially neutral act that has a disproportionate adverse effect on members of a protected class can be deemed discriminatory unless the employer can show that the action causing the disparate impact was job-related and consistent with business necessity. If such a showing is made, an employee can argue that the employer can use alternative means of achieving the same ends that will have less of a discriminatory impact. In the instant case, the City argued that its intent to avoid a disparate impact claim was a justifiable reason for throwing out the test results, even though doing so resulted in an act of “reverse” discrimination against the white and Hispanic applicants. The Supreme Court examined the interplay between the disparate treatment and impact language in Title VII, which makes it unlawful for employers to use employment practices that “that are fair in form, but discriminatory in operation,” while at the same time prohibits employers from taking adverse employment actions “because of” race. In reconciling these Title VII provisions, the Court held that the appropriate standard to use is the “strong basis in evidence standard” used in the context of Constitutional challenges to government actions to remedy past acts of discrimination. In essence, before engaging in an act for the purpose of avoiding or remedying an unintentional disparate impact on a protected class that would in turn discriminate against another group of employees on the basis of race, the employer “must have a strong basis in evidence” to believe it will be subject to disparate impact liability. In the instant case, the Court concluded that the City’s threshold showing of a significant statistical disparity in test results without more is insufficient to meet this “strong basis in evidence” standard. The qualifying exams were job-related and consistent with business necessity, and the City did not show that less-discriminatory alternatives were available that it refused to adopt. Fear of litigation alone could not save the City’s claim. The practical effect of this case for employers is that using qualifying exams has now become less legally precarious.

Justice Kennedy delivered this opinion.

BREAKING: Ricci v. DeStefano - Supreme Court Reverses Second Circuit And Finds New Haven Violated Title VII in 5-4 Decision

dschwartz@pullcom.com (Daniel Schwartz) — Mon, 29 Jun 2009 15:20:53 GMT

In closing out its 2008-09 term today the U.S. Supreme Court ruled 5-4, along ideological lines that the city of New Haven violated Title VII in refusing to promote a group of white firefighters and refusing to apply the results of a test that it claimed would have had a disparate impact on minorities.

The decision in Ricci v. DeStefano (download here) is bound to be heavily reviewed, scrutinized and analyzed. Indeed, because Judge Sotomayor (who was involved in the original decision at the Second Circuit) has now been nominated for the Supreme Court, the decision has been highly anticipated.

But despite the hyperbole about this case beforehand, the case has pitted two competing issues against each other - the city's alleged fear that the test, if applied, would have had a disparate impact on minorities (opening itself up to a lawsuit) and the firefighter's right to be promoted based on doing well on the test. The Court said that the city's fear was not sufficient to not use the test and that not using the test was a violation of Title VII.

Indeed, in its decision, the Supreme Court goes one big step further; it provides the city with a defense to a possible disparate impact lawsuit:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I've previously discussed the case extensively in a variety of posts which can be found here and here.

Justice Ginsburg provides the dissent here and predicts that the case will be difficult to apply in practice and further suggests that employers may have a difficult time fiting within its parameters:

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—evenfor surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulatean employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.”

I'll refrain from any big snap judgments until I review the decision at length (93 pages and all) but suffice to say that this decision will be the new starting point for employers who worry about disparate impact claims. It's application to private employers will no doubt be scrutinized as well, but I'm going to review the whole decision before drawing too many conclusions.

What's interesting is that the court decided the case on Title VII grounds instead of the "Equal Protection Clause" questions that it also faced. What this means is that private employers need to pay much closer attention to this case than had it been decided on the other grounds. After all, Title VII applies just as much to private employers as it does to the government.

My firm will be presenting a free webinar on this case and its impact on employers on July 8th at noon. Details will be forthcoming in a post later today.

In the meantime, if you're looking for other instant analysis, check out the SCOTUSBlog for their posts.

Ricci v. DeStefano -- Supreme Court Holds City Violated Title VII By Rejecting Racially Disparate Test Results

dewestlind@stoel.com (Dennis Westlind) — Mon, 29 Jun 2009 16:24:41 GMT

To end its term, the Supreme Court today issued its long awaited opinion in Ricci v. DeStefano--a case that has received extra media attention because Supreme Court nominee Sonia Sotomayor was on the Second Circuit Court of Appeals panel that decided the case below. The conservative justices on the Court reversed the Second Circuit (and by extension, Judge Sotomayor) in a 5-4 decision, ruling that the city of New Haven violated Title VII by discarding the results of a firefighter promotion test where white applicants fared disproportionately better than other applicants. As one might expect, Justice Kennedy provided the swing vote and authored the majority opinion.

New Haven used the test in question to identify firefighters best qualified for promotion. Despite being objectively administered, the test's racially disproportionate results led the city to question whether it should validate the results. The city, of course, found itself in a "damned if you do, damned if you don't" position: certify the test results, and face Title VII disparate impact litigation from minority applicants; fail to certify them, and face Title VII reverse discrimination litigation from the white officers who passed but were denied a promotion. The city opted for the latter course, and, as expected, the white firefighters filed a reverse discrimination lawsuit. The city prevailed on summary judgment at the district court level, and the Second Circuit affirmed.

The Supreme Court found that discarding the tests violated Title VII , while certifying the test would not have been a violation of law because there was no "strong basis in evidence" for believing that the black firefighters would prevail on a disparate impact claim. The court noted that despite what otherwise would have constituted a "prima facie" showing of disparate impact race discrimination, several defenses were available to the city--namely that the exam at issue was job related, consistent with business necessity, and there existed no equally valid, less discriminatory alternative that suited the city's needs but was not adopted. The four dissenting justices disagreed, arguing that the majority's analysis was flawed because "New Haven had ample cause to believe its selection process was flawed and not justified by business necessity."

Ultimately, the Ricci decision will have little to no impact on most employers, but represents a small victory for employers (despite the positioning here that held against the city/employer). Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists. The Ricci decision may not last for long, however. Political condemnation by Democrats has been swift, with Senator Patrick Leahy (D-VT) saying that "it is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces." Don't be surprised if Congress passes legislation down the road aimed at upending the Ricci decision.

Supreme Court: Fear of Disparate Impact Litigation Does Not Justify Disparate Treatment

Mon, 29 Jun 2009 15:38:27 GMT

Ricci v. DeStefano may be the most eagerly anticipated decision this Term. But that doesn't have anything to do with the case itself. It's because the opinion under review was written by Sonia Sotomayor, nominated for a seat on the High Court. he Sotomayor fans / foes did not get a decisive victory from the Supremes.

The Court decided that New Haven, Connecticut violated Title VII by throwing out a firefighter's promotion examination on the ground that White firefighters passed the test far more frequently than Black firefighters. The city feared a disparate impact lawsuit from unsuccessful minority applicants because the test results were skewed along racial lines. The Second Circuit had upheld the city's action.

The Supreme Court (5-4) held that refusing to certify the test on the basis of the successful examinees' race constituted disparate treatment discrimination under Title VII. The Court then considered whether avoiding disparate impact litigation was a valid defense. Mere fear of a lawsuit is not sufficient. Rather, to justify the action, the city would have to have a "strong basis in evidence" that "the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision."

The Court also addressed the probability that the Black firefighters would sue for disparate impact discrimination. The Court noted that the test appeared to be "job-related and consistent with business necessity," a defense to the claim. In addition, the Court suggested that its decision would insulate the city from liability because throwing the test results out would constitute disparate treatment.

Justice Scalia concurred to point out there is tension between disparate impact claims under Title VII and equal protection law, the resolution of which would have to wait for a later date. Justice Alito also concurred with the majority opinion. He pointed out that the city's decision not to certify the test results may have had more to do with "racial politics" - pressure from activists - than a fear of disparate impact litigation.

Justice Ginsburg's dissent focused on the long history of minority exclusion from the New Haven ranks of firefighters, particularly in senior positions. The dissent held that it is permissible to make a race-based decision to remedy a disparate impact where, as in the case before it, there was "good cause" to find the test flawed.

The case is Ricci v. DeStefano and the opinion is here.

SUPREME COURT RULES IN FAVOR OF WHITE AND HISPANIC FIREFIGHTERS

dburnick@sirote.com (Daniel Burnick) — Mon, 29 Jun 2009 16:39:24 GMT

This morning, the U.S. Supreme Court, in a 93 page 5-4 opinion, reversed the lower courts' decision in the case of Ricci v. DeStefano. I previously wrote about this case on February 3 and April 22. In Ricci, the white and Hispanic plaintiffs claimed that they would have been promoted if the city of New Haven Conn. did not invalidate the test results because no black candidates scored high enough to be promoted. Justice Kennedy delivered the opinion for the Court, finding that the city's actions violated Title VII.

Initially, Justice Kennedy addressed the burden shifting provisions of Title VII: once a plaintiff establishes a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is job related for the position in question and consistent with business necessity. If the employer meets that burden, the plaintiff may still prevail by demonstrating that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer's legitimate needs. The Court found that the City's actions, not validating the test scores because the higher scoring candidates were white and Hispanic, violated Title VII's disparate treatment prohibition. Without some other justification, the express, race-based decision making is prohibited by Title VII. The Court decided the question of whether the purpose to avoid disparate impact liability excuses what otherwise would be prohibited disparate treatment discrimination. The Court found that fear of litigation alone cannot justify the city's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Finally, the Court concluded that If, after it certifies the test results, the city faces a disparate impact suit, then in light of this decision, the city can avoid disparate impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability.

Practice Pointers.

1. President Obama's nomination to the Supreme Court, Sonia Sotomayor, was on the 2nd Circuit panel which affirmed the district court's summary judgment in favor of the city which was reversed by the Supreme Court. This decision will provide some ammunition for her critics.

2. This opinion will be the starting point for employers who are worried about disparate impact claims. Unfortunately, it may not provide all the answers, since each case will need to be decided on its own merits.

3. Since the Court decided the case on Title VII grounds, and not on the Equal Protection Clause (which was also raised in this case), it is likely that this decision will apply to private employers as well as public employers.

"A Strong Basis In Evidence" of What?

SHG@simplejustice.us (Scott Greenfield) — Tue, 30 Jun 2009 09:46:00 GMT

When it comes to criminal law, the question to be answered is what would a reasonable Scalia think? After the Supreme Court's 5-4 decision in Ricci v. DeStefano, the answer isn't so clear under Title VII. Did the Court just tacitly overrule Griggs v. Duke Power, or did they just set up an impossible standard for employers?

For those unfamiliar with discrimination law, here's the dilemma. There are two ways in which an employer can engage in discriminatory hiring practices, disparate treatment and disparate impact. The former is affirmatively treating employees of protected classes differently, while the latter ...When it comes to criminal law, the question to be answered is what would a reasonable Scalia think? After the Supreme Court's 5-4 decision in Ricci v. DeStefano, the answer isn't so clear under Title VII. Did the Court just tacitly overrule Griggs v. Duke Power, or did they just set up an impossible standard for employers?

For those unfamiliar with discrimination law, here's the dilemma. There are two ways in which an employer can engage in discriminatory hiring practices, disparate treatment and disparate impact. The former is affirmatively treating employees of protected classes differently, while the latter ...

That Firefighter Case

Tue, 30 Jun 2009 17:11:01 GMT

Yesterday, the Supreme Court issued one of the most anticipated decisions of this term, Ricci v. DeStefano. Ricci is a reverse discrimination case, in which 18 firefighters (17 white and one Hispanic) sued the city of New Haven for refusing to certify test results that would have put them in line for promotion. New Haven didn't certify the test results because white applicants scored so much higher than African American and Hispanic applicants that the city feared it would be sued for race discrimination by nonwhite candidates if it relied on those results. The Court's decision left the city (and by extension, all other employers) precisely midway between a rock and a hard place. And the opinions the court issued in the case reveal markedly different views on the purpose of laws prohibiting discrimination.

Here are the basic facts (the combined opinions run to 93 pages, so I'll try to cut to the chase): The city of New Haven gave oral and written tests to candidates for promotion to the positions of lieutenant and captain. The results were combined, weighted (the written test was worth 60% of an applicant's score and the oral test made up the remaining 40%), and used to rank candidates who passed the test. When a position was available, it had to be given to one of the top three candidates on the list. White candidates passed at a significantly higher rate (and with higher scores) than African American and Hispanic candidates, resulting in promotion lists that looked like this: All ten of the candidates who would have been considered for a promotion to available lieutenant positions were white, as were seven of the nine candidates for available captain positions.

Upon seeing these results, the city determined it had a potential problem: Nonwhite candidates might sue based on a disparate impact theory, claiming that although the test was facially neutral, it had the effect of discriminating based on race. After holding a series of hearings, the city ultimately didn't certify the test results. A group of firefighters who did well on the test sued, claiming that the city's refusal to rely on the test results was discriminatory.

The five-Justice majority ruled against the city and in favor of the mostly white test takers. Justice Kennedy, writing for the majority, found that the city's decision not to certify the test scores was itself based on race (the marked racial disparity in the test results, that is) and was therefore discriminatory. The majority also found that the city's fear of a disparate impact lawsuit if it certified the test results was not an adequate defense unless the city had a "strong basis in evidence" to believe the results were discriminatory.

This "strong basis" standard is new to Title VII cases, and has led to much commentary that the Court changed the rules in discrimination cases. The Court also left employers in a deep bind: Rely on test results that create a racial disparity and risk a disparate impact lawsuit; disregard those test results and risk a disparate treatment lawsuit. In this very case, African American firefighters have said they will sue for disparate impact if the city does as the Court says it must and certifies the test results.

Here are a few of my takeaways from this case:

Anyone still think we're "post-racial"? Reverse discrimination cases highlight a profound split in the way race--and civil rights laws--are viewed in this country. Those laws were passed to remedy particular types of discrimination, against groups that have been historically disadvantaged. As Justice Ginsberg's dissent pointed out, there is a long history of racial discrimination against African Americans and Hispanics in the field of firefighting, New Haven has been part of that unfortunate history, and this is part of the reason why Title VII was extended to cover municipal governments. Reverse discrimination allegations don't speak to this legacy: Instead, they claim that any consideration of race is wrong, period, as the majority opinion did in this case. No matter which side of this debate you come down on, it's clear that we have not come to any kind of consensus about what role--if any--race should play in our decision making.

Will this be on the test? One of the basic facts underlying this case is the continuing, seemingly intransigent racial disparity in written test scores. As some of those who testified before the city in this case pointed out, statistics still show that whites tend to score better on standardized written tests than African Americans and Hispanics, and we still don't really know why. In this case, New Haven clearly tried to come up with a test that wouldn't produce this result, and failed. So why are written tests still so common in so many fields? Is a written test really the best way to determine who will be the best lawyer, student, driver, firefighting supervisor? It's a question employers should certainly consider, especially now that the Supreme Court has said that there might be a lawsuit with your name on it whether or not you rely on the results of a test that reveals a racial disparity.

Civil Rights Act of 2009 (or 2010), here we come. This is not the first controversial disparate impact case the Supreme Court has ever decided. Although the majority reviewed the history of disparate impact as a legal theory, it omitted the Wards Cove case, in which the Court made it much more difficult for employees to win a disparate impact case. Congress explicitly overturned the Wards Cove case (along with a few others) in the Civil Rights Act of 1991. The Ricci case, along with a couple of others issued this term (Hulteen and Gross, for example), might spur this session of Congress to similar action.

Business Is Big Loser In The Supreme Court Firefighters Case

ellen@ellensimon.net (Ellen Simon) — Thu, 02 Jul 2009 10:00:00 GMT

Supreme Court's Ricci Decision Is Bad For Business and Everyone Else

It took me almost a whole day to read and digest the 89 page Ricci v. DeStefano decision. I have spent most of a whole second day reading the commentary and analysis.

Here's where I'm at regarding this case:

it's really hard for businesses to deal with

it's also really bad for everyone else

it's procedurally unsound

it's got to go

Bad For Business

There is a general consensus that business is the big loser in the Ricci decision. Almost without exception, all of the commentary points to the fact that the Supreme Court has now made it harder than ever for employers to follow Title VII law which prohibits discrimination in the workplace. That's not good.

A described in a Lawyers USA article today, the lawyers who represent employers believe that they have been put in a "lose-lose" situation:

The outcome really puts employers in a box, said Andrew J. Pincus, a partner in the Washington office of Mayer Brown who filed an amicus brief on behalf of the National League of Cities and other groups. Before, employers had some leeway. Under the new standard, they are really in a box because they will be facing costly litigation no matter what they do.

In sum, the Supreme Court in a 5-4 decision found in favor of white firefighters who claimed discrimination because of race when test results for promotions were discarded because no black employees scored highenough to be considered for promotions. The city feared a disparate impact discrimination lawsuit and set aside the test results.

The Court held that an employer may not discard test results on account of race unless it shows a "strong basis in evidence" that it would be subject to disparate impact liability. Statistics alone are not enough to make a "strong showing in evidence", but no one seems to know what is.

As Rae T. Vann, general counsel for the Equal Employment Advisory Council, which submitted an amicus brief in the case commented:

“I think [the justices] made the situation a little more challenging as far as navigating that Catch-22 because they changed the rules of the game without giving employers the guidance that they need.”

Without knowing just what qualifies as a “strong basis in evidence” of the likelihood of being found liable for creating a disparate impact, many employers will chose not to discard a selection or promotion process that yields few minority candidates once it is in place, possibly drawing a disparate impact suit.

What's ironic is that this decision came from the Roberts pro business court. Ilya Somin wrote a very interesting piece about the subject in the Volokh Conspiracy and here are some excerpts:

The Supreme Court's decision in Ricci v. DeStefano has interesting implications for the longstanding debate over whether the Roberts Court is "pro-business."

The bottom line is that the business interests were among the big losers here. The Court's ruling makes it difficult for employers to use race-conscious measures to avoid disparate impact liability under Title VII of the Civil Rights Act. And this defeat was inflicted by the supposedly business-friendly conservative justices. Although Ricci addressed promotion decisions by a government employer, the same Title VII standards apply to private employers too.

If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities.

But if the business adopts race-conscious measures to try to shield itself from liability (e.g. - by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to "disparate treatment" lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.

No One Seems to Like the Decision

It's not like anyone else likes the decision either. John Payton, the president of he NAACP Legal Defense Fund said that the Ricci decision is a "step backward from the goal of equal employment opportunity.

The law professors have written excellent articles for the academics and theorists on the many things that are flat out wrong and troubling about the decision. The New York Times Opinionator did a good job of gathering some of them.

One was an excellent analysis on the Workplace Prof Blog by Marcia McCormick. Here's a piece of it:

As a doctrinal matter, I think that the initial premise is troubling. To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs.

It's also an implicit rejection of the basis for the Court's early decisions on Title VII, that discrimination in employment was common, that absent some other good explanation for an adverse action, discrimination was a reasonable explanation for it, and that without incentives, employers would not have to look critically at what was really required to perform a job and whether this individual could do that.

Instead, they could rely on old proxies for fitness without examining them critically. Now it seems that the Court is concluding that discrimination is rare and assertions of discrimination are suspect, and that the continued lack of attainment by people of color (and women, likely) is because of limitations in those people, not obstacles in the system.

Mike Zimmer, law professor at Loyola University and fellow blogger on Today's Workplace posted a great in depth piece about the case. He provides hugely helpful insight as well as a road map through the many complex issues presented.

Where's The Jury?

Mike Zimmer makes one simple point (among the many complex ones) which is the one that jumped out at me throughout my labored reading of the case. How in the world was this case decided without a jury? As Professor Zimmer noted:

The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial.

The four slip opinions run a total of 89 pages; 31 pages – 38% of the total — deal with relatively straight forward recitation of facts, most of which are quite contested. Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

To say that there are material facts in dispute on a host of determinative issues is an understatement. Reading through the 89 page decision, with all of the long recitations of fact -- and all of the diverging views of what that evidence means in light of the new standard set by the Court -- would lead a first year law student to conclude that these were issues to be decided by a jury.

All you have to do is read Justice Allito's concurring opinion and Justice Ginsberg's dissent to for proof that there are at least two ways of looking at the evidence in the case.

What Happened To The Remand?

I was particularly dumbfounded by the fact that there was no order of remand. Simply stated, the Court decided that a new legal test should be applied to the central issue in the case. The normal procedure would be a remand to the trial court to act in accordance with its pronouncement. It's altogether strange that this did not happen. The point was not missed on Justice Ginsburg in her dissent:

The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strong basis-in-evidence standard. When this Court formulates a new legal rule, the ordinary course is to to remand and allow the lower courts to apply the rule in the first instance. ... I see no good reason why the Court fails to follow that course in this case.

The only plausible explanation for the denial of a remand or a jury is that the majority decided which side they wanted to win -- and that was the white firefighters.("empathy" seems to be okay in this instance) A remand and jury could put that outcome in jeopardy.

What's Next?

It's no surprise that there is already talk of a legislative fix. According to the New America Media today, Eleanor Holmes Norton, a former chairwoman of the Equal Employment Opportunity Commission, said that she will introduce a bill to overturn the Ricci decision.

Congress has no recourse except to do as we did in the Ledbetter case [the court questioned equal pay for women] and return the statute to its intended meaning. I will begin this process by introducing a bill to accomplish this end when Congress returns.

Between the Gross case this past month and the Ricci case this week, it certainly looks like Congress has its work cut out for it.

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U.S. Supreme Court Holds City Discriminated Against White Connecticut Firefighters

russell.cawyer@khh.com (Russell Cawyer) — Sat, 04 Jul 2009 22:44:33 GMT

In one of the most anticipated employment discrimination cases in years, the U.S. Supreme Court held that the City of New Haven discriminated against non-minority firefighters when it chose to ignore the test results of a racially-neutral promotional exam because too few minorities scored high enough on the test to be considered for promotion. I previously wrote about this case and outlined its facts. (See here for post).

In Ricci v. DeStafano, a majority of the Supreme Court began with the premise that the City's decision to ignore the results of its promotional testing because too few minority fire fighters scored well on the test, constituted intentional discrimination against the firefighters that scored well on the test. There was no dispute that the City disregarded the test results because of the race of the test takers and the fact that no minorities scored high enough to qualify for promotion. Concluding that this conduct constituted intentional discrimination, the Court examined whether the City had a legitimate justification for ignoring the test results.

The City's sole justification for the ignoring the test results was that if it recognized the results it would face litigation from the minority firefighters who took, and scored poorly, on the test. The minority firefighters, the City predicted, would sue the City claiming that the racially-neutral test had a disparate impact on minority firefighters and therefore discriminated against them. The City argued that it was faced with a Hobson's choice where no matter what it elected to do it would be faced with a discrimination lawsuit (i.e., either being sued by the white firefighters who scored well and were denied promotional opportunities because the test results were ignored or by the minority firefighters who claimed the test unintentionally discriminated against them by recognizing a test that had a disparate impact on minorities).

The Court explained that if the City had a "strong basis in evidence" that its recognition of the test results would subject it to disparate-impact liability in the absence of it taking the race-conscious, discriminatory action --not necessarily that it would lose an disparate impact case. To make this showing, there would need to be a showing of a significant statistical disparity; and the tests were no job related and consistent with business necessity; or there existed an equally valid, less-discriminatory alternative that served the City's needs that it refused to adopt. Applying this standard to the Ricci case, the Court concluded that City lacked a strong basis in evidence that it would be subjected to disparate-impact liability if it recognized the test results. Therefore, it found that City discriminated against the non-minority firefighters when it threw out the test results.

The lesson from Ricci is that when an employer is faced with qualification or promotional exam that may have a disparate impact on a protected class, the employer must build a strong record and attempt to ferret out the reasons for the disparity before deciding whether to ignore the results. A strong case would begin with a test that was designed in such a way as to avoid a disparate impact as was the case in Ricci. The Court's opinion makes clear that it is not intended to prohibit an employer from considering (before test administration) a way to design a test that provides a fair opportunity for all individuals, regardless of their race. Instead, the legal analysis encourages employers (and gives them broad latitude) at the test-design phase to invite comments to ensure the test is fair. This would tend to help to identify aspects of the prospective test that might not be job-related and consistent with business necessity or other equally effective, less discriminatory alternatives.

With a strong record in this regard, an employer assert and prevail with the new defense announced by the Ricci court when it faced with the prospect of being sued for disparate treatment (i.e., intentional) or disparate impact (i.e., unintentional) discrimination.