The Supreme Court heard arguments yesterday in Ricci v. DeStefano a case which many are saying is one which may fundamentally change civil rights protection in the workplace.
This is the Roberts court's first major decision on the issue of racial discrimination.
In the world of civil rights law, it doesn't get much more important than this.
When cases get to the United States Supreme Court, they are generally complex and this one is no different. Discrimination cases particularly, in terms of the law, are never really very easy to explain but here's a try.
In order to understand the case at all, it's important to know the difference between the two kinds of discrimination under Title VII of the Civil Rights Act of 1964.
disparate treatment discrimination
- where a person is being treated differently -- because of his/her race, sex, religion, national origin, disability, veteran status or age -- than a person who is not in the protected class
- proven with direct or circumstantial evidence of an intent to discriminate
disparate impact discrimination
- when a neutral policy, standard or test has a disparate impact on a protected class.
- i.e. if a company only hires individuals who are 5 foot 6 inches tall or over -- the qualification while neutral on its face, would have a disparate impact on women.
- no intent to discriminate is required to prove these kinds of cases
These two types of discrimination are implicated in this case and come together like a perfect storm for the Court. Here's what happened .
In 2003, the New Haven Fire Department was filling captain and lieutenant positions. The union contract required promotions to be based on examinations, The city contracted with a company to develop the exams which were given to qualified applicants.
Under the city's rules, once the test results were certified, the department was required to promote those individuals with the top three scores. It turned out that the Black applicants' pass rate on the exam was approximately half of the rate for white applicants which was not the case on prior exams.
The city was concerned that the exam was flawed. City officials believed that if the results were certified, the city could be subject to a disparate impact discrimination lawsuit from the minority applicants who did not qualify for the promotions.
New Haven is a city where 37 percent of residents are African-American, 21 percent are Hispanic, and only 15 percent of the fire department's officers are minorities.
A group of white firefighters, and one Hispanic, (the petitioners) who scored the highest on the test filed a disparate treatment discrimination lawsuit claiming that they were being adversely treated because of their race --- what is commonly called a "reverse discrimination" case.
The main question before the Supreme Court is: Under what circumstances can a plaintiff prove a disparate-treatment case when the employer's justification for it's decision is that it acted to comply with Title VII's disparate-impact provisions?
New Haven's counsel pointed out the dilemna as reported in The Washington Post:
The city was placed in a position where it was bound to be sued by one side or the other and opted to "pause" and reconsider how promotions should be made
He added that if it is unfair to white firefighters to have the promotions scuttled, it would be equally unfair to black firefighters who were "locked out" by test results that did not truly produce a list of those most qualified.
"I certainly have sympathy for the plaintiffs, but at the end of the day it was the wrong test," Bolden said
It's no surprise that there were over twenty five "friends of the court " briefs filed by various civil rights, governmental, management, and other organizations. If you care to see everything there is to see on this case, the best place to go is the Supreme Court of the United States Blog which has an excellent summary as well as all of the court filings.
I thought that the brief filed by the United States not only made some good points, but really could help the Court steer clear of this hot potato. Here's the gist of the government's argument:
- An employer does not violate Title VII disparate treatment prohibition when it decides not to certify the results of a promotional test so that it could comply with Title VII's prohibitions against disparate impact discrimination.
A contrary reading would needlessly pit Title VII's basic anti-discrimination provisions against one another and would defeat Congress's intent to encourage employers to comply voluntarily with Title VII
Titlve VII's ban on both disparate-treatment and disparate-impact discrimination reflects Congress's obvious desire that the provisions be read in harmony so that one provision does not defeat the other
- An employer's concern that it's test may violate Title VII does not equate with intentional discrimination -- it is consistent with Congress' core objective to prevent discrimination
- Employers are encouraged to take appropriate and lawful measures to eliminate adverse impact from selection procedures under EEOC guidelines which is exactly what the city of New Haven was doing
- The city of New Haven did not make any racial classifications and did not make any intentional promotional decisions based on race because no one was selected for the promotions, much less selected based on race.
- The case should be decided like other disparate treatment cases -- the plaintiff provides evidence of discrimination; the employer articulates its justification for the decision; the plaintiff comes forward with evidence that the justification is pretextual -- meaning not credible or made-up
- As applied to this case, that would mean that the plaintiff would be entitled to prove that the stated reason for New Haven's decision -- compliance with Title VII -- was merely a pretext for intentional race discrimination
- Thus, the jury should be permitted to find pretext when the plaintiff establishes that:
1. the employer's proffered motive of Title VII compliance is reasonable
(suspending a selection process to investigate the possibilities of alternate selection methods would be considered reasonable ) or
2. there is other separate evidence that the employer's stated reason is not credible
The real bottom line of the argument is that the Court can and should write an opinion which relies on an analysis that already exists and send the case back down to the district court to apply it. It's a solution to a catch-22 problem that makes sense.
No doubt, this is a very important case and most Supreme Court observers agree that it will be decided by the swing vote of Justice Kennedy.
I hope he sees the path that has been cleared in the government's brief. The logic is great, the law is sound, and the Court does not have to pick an outright winner or loser.