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 high enough 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:Continue Reading...