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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:

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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.

As noted by Lia Epperson, a law professor at Santa Clara University: 

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

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