Jun 30, 2009

That Firefighter Case

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 asserts 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. Want to know more about disparate impact and disparate treatment claims -- and how to make sure your company doesn't run into either? Pick up a copy of The Essential Guide to Handling Workplace Harassment and Discrimination, by Deborah C. England (Nolo).