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.
The fact that the conservative justices dealt business interests a major defeat in Ricci doesn't prove that they would be equally indifferent to business concerns in other cases. That said, it's worth noting that the five conservative justices ruled against business interests on an issue that could potentially expose them to a great deal of costly litigation. This fact further weakens already dubious claims that the Roberts Court is systematically advancing a "pro-business" agenda.
Justice Kennedy's majority opinion holds that an employer may not use race-conscious measures to try to avoid "disparate impact" liability under Title VII of the 1964 Civil Rights Act unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." A disparate impact lawsuit is a case alleging discrimination by the employer on the grounds that its hiring or promotion standards disproportionately disadvantage minority applicants, even if the employer wasn't deliberately trying to discriminate against them.
The Court's ruling makes life more difficult for employers trapped between the Scylla of Title VII disparate impact liability and the Charybdis of "disparate treatment" suits by white employees ("disparate treatment" suits are cases alleging traditional intentional racial discrimination). 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.
To avoid this dilemma, business groups have long sought to persuade the courts to interpret Title VII to shield them from liability for race-conscious hiring policies that are intended to prevent disparate impact lawsuits. The Equal Employment Advisory Council, a group representing numerous large corporations and other businesses, filed an amicus brief in Ricci urging the Court to rule for New Haven for precisely this reason.
The five conservative justices weren't buying that argument, however. To be sure, the majority opinion does allow the use of race-conscious measures to avoid disparate impact liability where there is "a strong basis in evidence" to conclude that such liability would otherwise arise. However, Justice Kennedy also emphasized that race-conscious measures to avoid disparate impact liability will only be allowed in "narrow circumstances." Moreover, the Court ruled that such circumstances didn't exist in this case despite the fact that not even one black firefighter could have been promoted based on the results of the original exam. As the Court notes, "[t]he racial adverse impact here was significant, and . . . the City was faced with a prima facie case of disparate-impact liability." It is also important to recognize that, in deciding to grant summary judgment in favor of the plaintiffs, the Court was required to consider the evidence in the light most favorable to the opposing party (New Haven); even under that standard, the Court majority concluded that New Haven loses. Thus, there will likely be many cases where businesses face some substantial risk of disparate impact liability, but will still be forbidden to use race-conscious measures to avoid it.
The fact that business interests will suffer doesn't mean that Ricci was wrongly decided. I believe that private employers should be allowed broad discretion to adopt race-conscious affirmative action plans. But my view of the world is different from that embodied in Title VII, and I think the majority justices interpreted the statute more or less correctly. Right or wrong, the decision definitely isn't pro-business.
UPDATE: In the last part of his opinion for the Court, Justice Kennedy tries to address the conflict between disparate treatment suits and disparate impact:
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.
This gives New Haven and other similarly situated employers a potential safe harbor against disparate impact lawsuits. However, it is not clear that this reasoning extends beyond the context of a decision to decertify an already completed formal test. Most private employers do not use formal test processes like that of the New Haven Fire Department. Even in the testing context, there might not be a "strong basis in evidence" for disparate treatment liability absent the kind extensive record of racial motivation that New Haven compiled in this case (there was a lot of evidence, summarized in Justice Alito's concurring opinion, that the City's true motive for decertifying the test was to increase minority representation in the Fire Department for political reasons unrelated avoiding disparate impact liability.
Related Posts (on one page):
- Ricci as a Defeat for Business Interests Inflicted by "Pro-Business" Conservative Justices:
- Tidbits from Ricci on the Second Circuit's Disposition:
- Ricci and the Sotomayor Nomination:
- Ricci Reversed:
Perhaps businesses could submit their plans to an agency to approve them. (The agency would be appointed by the government, but would be paid for by businesses. The government would defend lawsuits).
Or, maybe, in cases like these, the parties with an interest (those promoted and those not promoted) can sue each other and the employer could just look on and take the result.
The current system is unfair to employers. Not having some system would likely lead to discriminatory conduct. A happy medium should be found.
I don't think the decision does this to any significant degree. In any case, that part of the opinion is likely to be dictum.
the decision lays out fairly clearly, I think, that avoiding disperate treatment is the priority over avoiding disperate impact where both might arise.
That's true. But it doesn't prevent the employer from being sued for disparate impact in a situation where a race-conscious measure might have avoided the suit, but was prevented by fear of disparate treatment lawsuits like this one.
Where? I don't see it anything in the majority that can even unreasonably be interpreted as a criticism.
As long as there is no active discrimination involved and the opportunities are made available to all who seek them out, why must we social engineer the results?
On a related note - I want more Asians and Latinos in professional sports, the hiring practices in those industries surely have a disparate impact... (why is this argument ridiculous, yet others valid?)
"Cornyn lauds Supreme Court ruling in firefighter case
Cornyn1.jpg
Senate photo
Sen. John Cornyn
Texas Sen. John Cornyn today lauded the U.S. Supreme Court's ruling 18 firefighters in New Haven were unfairly denied promotions because of their race. Cornyn, a member of the Senate Judiciary Committee, called the high court's opinion in the case of Ricci v. DeStefano "a victory for evenhanded application of the law."
Telegraphing what is certain to become a major issue in Sonia Sotomayor's upcoming Supreme Court confirmation hearings, Cornyn pointedly noted that "all nine justices were critical" of the trial court ruling that Sotomayor, as a member of the 2nd Circuit U.S. Court of Appeals, had voted to uphold.
Little did I know what prophetic powers I posses. Just don't ask me to predict how the stock market will do.
Whar has happened is that the court has lost its ability to understand what function it should perform, which is primarily to produce opinions that are comprehensible and useful to the consumers of its output.
This is a truly odd combination of views to hold. Where in Title VII do you see a rejection of your views? In the prohibition of disparate treatment? That's where the majority found it.
The City of New Haven for years has tried to have non-merit based promotions and hiring and has been repeatedly blocked by their constituents and the court system.
There is a lot of evidence to suggest this was a race-neutral exam. It was carefully crafted to be such. The city "expert" who claimed to be able to design a more neutral one was given a chance to do so on the hiring exam since then and that has become even a bigger mess when he through out the written tests and relied on an oral exam to get the results he was after.
I thought this would be a success for companies. If you design race-neutral hiring and promotion processes, the SCOTUS said that you have a defense against a disparate impact lawsuit. The people who sue will be forced to prove that not only was there a statistical impact, but that your process was the cause of the impact.
Up until now, it was impossible to design race neutral processes because just showing there was a statistical difference in your results was enough to win.
But you don't have a defense against being sued. Look at the City of St. Louis's Fire Department. They keep on winning, but that doesn't keep them from being sued.
Good post but not you too? You wrote "I think the majority justices interpreted the statute more or less correctly."
Please. They rewrote the 1991 Amendments. It is silly to pretend otherwise.
Maybe it thinks its function is to provide further work for lawyers? It seems to be doing a good job in that sphere.
John Doe proves he is a moron by refering to the "idiocy known as disparate impact." I have to believe that if there was a facially neutral policy that screened out Whites at a significantly higher rate than minorities, then you would see a howling on the right wing about how "unfair" that policy is. Conservatives always have been neutral about race discrimination . . . unless it is Whites conceivably getting shafted. but I digress.
I asked the question here three weeks or so ago and go no responses from pro-Ricci plaintiff types, so I ask it again:
if an employer suspects that one of their employment policies might be weeding out minorities at a much higher rate than non-minorities, should they be permitted to change or eliminate that policy so there is no disparity?
The Supreme Court today said "no"; the employer should continue the offending policy because those being advantaged by it would lose that advantage, and that would not be "fair". Huh? So some people are entitled to an advantage? Is that what the Supremes believe?
As Ginsburg pointed out in Ricci, this all makes no sense. The entire point of the statute (and clarity in interpretation of the statute) is to give employers the means to police themselves and informally alleviate problems, before litigation ensues. That is what the City of New Haven, a city with a history of anti-minority discriminaiton, did. The 5 in the majority just made it that much harder for employers to do that, without facing lawsuits from those who are comparatively advantaged by those suspect policies.
Going back to Griggs v. Duke Power, John Doe, you can't poo-poo disparate impact without acknowledging that Whites, who were already in the majority there, reaped the advantage of that "neutral" but oh-so-one-sided policy requiring testing for Duke Power jobs. Ricci just put another thumb on the scale for the majority and undercut the logic and policy of Title VII a little bit more.
Does that make sense?
Moreover, your question glosses over the timeline: do you mean before the fact or after the fact? If New Haven had developed a test and then said, "You know, this just doesn't seem job-related enough, so we're going to scrap it," it would not have gotten into trouble. The problem is that New Haven developed the test, administered it, saw the results, saw what race the people to be promoted were, and only then suddenly decided to scrap it.
No. The Supreme Court said that the policy wasn't "offending" at all. Of course some people are entitled to an advantage: those who are more skilled deserve to get promoted. Without regard for their race.
Ginsburg, like you, mistakenly equates disparities and "problems." A disparity is only a "problem" under disparate impact law if it results from an illegitimate test or policy; at most, the disparity is evidence that there might be a problem, but it is not itself a problem.
Ilya, I'll go one further. As I see it, New Haven tried to put in a race-neutral test and apparently failed. Their legal counsel acknowledged that failure and the risk of costly litigation that they just might lose and he recommended scrapping the test. Again: the test did not ensure anyone would be promoted; it only established the promotion pool. The Supreme Court basically just told the citizens of New Haven "Hey, your city government selected a bum test. 'Fairness' requires that you suffer the millions of dollars in litigation expenses to try to vindicate that bum test. And, no, you can't trash it to avoid the expense. Because that would not be 'fair' either." And this makes sense to someone somewhere?
Are basketball players selected by means of performance on multiple choice tests? Are the best basketball players those who can best memorize the contents of books in the basketball syllabus?
No. Unlike firefighters, basketball players are selected based on their on-the-job performance.
Obviously it puts New Haven in an awkward position, but that's the inevitable result of allowing disparate impact claims and a liberal pleading standard with cost-shifting, such that people can bring a tenuous claim based solely on statistical disparities.
But all that costs money, lots of it. Perhaps 2 to 5 percent of operations expenses would not be out of realm of possibility. Surely the long-term interest--and long-term profit--of business is best achieved when the government is removed from most hiring decisions and nonsense like "disparate impact" can be safely ignored.
Yup. A selection process with a disparate impact.
You left out the critical detail that the only evidence that the test was bad was the results by race; there was nothing on the face of the test that indicated the test was at all discriminatory. There was also no evidence that the test was unrelated to the job requirements.
The Supreme Court basically just told the citizens of New Haven "Hey, your city government selected a bum test. 'Fairness' requires that you suffer the millions of dollars in litigation expenses to try to vindicate that bum test.
...unless you have strong evidence that the test was bad. Kind of an important part of the opinion you left out there.
Why should that be the case, though? Litigation is costly and time-consuming. Also, we are talking about a claim of discriminatory intent -- the firefighters here claim that the City intentionally discriminated against them because of their race. Isn't avoidance of the burdens of litigation a legitimate reason to make a hiring decision? Why is that ipso facto a racially discrminatory intent?
As a lawyer, there is one thing I notice right away about the standard adopted by the majority -- that the employer must show "a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." The employer has to show it would liklely be liable -- not simply subject to suit.
But the standard for filing suit in federal court is much lower. As set forth in Rule 11 of the Federal Rules of Civil Procedure, all that a putative plaintiff need do is satisfy this standard as to the Complaint:
So an employer like the City of New Haven is stuck in a Catch-22 situation. If it maintains the test, then it is discriminating against the firefighters. If it certifies the test it invites litigation -- which on the facts here certainly would pass muster under Rule 11, although it might well lose in the end.
So are you suggesting that the New Haven F.D. simply promote everybody and then see how they perform on the job? Aside from the expense of promoting more officers than are needed, how does one account for the people who will be horribly burned or die as a result of having promoted incompetent fire officers? Surely a carefully constructed paper/oral exam is preferable to an on-the-job tryout, given what's at stake in the firefighting profession.
Second, the decision is bad for business because, as I explained, the Supreme's just took from management one of the tools they would use to avoid lawsuits, i.e., elimination of problematic policies. The Supremes basically just created a rule that says: "Employers, don't you dare try to eliminate a discriminatory practice if that takes an advantage away from someone who benefits from that practice. And if you do want to eliminate it, you better make sure that you do create a paper trail proving it was discriminatory, so that the other side can more easily sue you."
on the job performance can not be used. Thats subjective. Tests dont work, performance dont work. The only fair thing to do is pick a percentage of blacks at random for promotion, since to objective standard is availible
I'm pretty sure that's not how NBA players are selected. I'm pretty sure they're selected based on such on-the-job performance factors as how often they can get a ball into a hoop.
No, I am suggesting the process that happens everywhere on the planet outside of government. Pick the candidates who perform the best on the job, and who seem to possess the qualities needed for the next step up, and promote them. Not, "promote everybody and let god sort them out."
This faith in the power of standardized tests to select the best candidates touches me. Let us see how far this belief extends: Should our Presidents be selected on the basis of standardized tests? Would you not argue that a carefully constructed paper/oral exam is preferable to an on-the-job tryout? Certainly there is far more at stake, leading the country, than in putting out even the largest and gravest of building fires.
Given solely their skill at studying and taking standardized tests, Annapolis grad Carter would have defeated Reagan, Yale grad Bush over Swattie Dukakis, and Rhodes scholar Clinton over Bush. In the battle of the gentlemen's C scholars, Gore would have squeaked past Bush. At McCain's age, it's hard to see him outscoring the mentally nimbe Obama.
I may change my mind, but I am tentatively persuaded by Justice Alito's description of the facts to believe that the correct outcome would have been (1) to rule that the city intentionally refused to certify the results of the examination because of the racial disparity in the test results and (2) to give the city an opportunity to show that the examination was not job-related within the meaning of the EEOC Guidelines. Under my approach, all of the language regarding the relationship of disparate treatment to disparate impact would have been unnecessary.
There was political pressure on the city, to be sure, but it was motivated by race.
It is obvious that neither one of your read the case. I did. It is what I do for a living. I quote:
Got that? The City did not pull the fears of disparate impact out of thin air; it was real. All of your analyses rest on a demostrably false premise: that there was no evidence of discrimination. There was and everyone admitted there was. The question that the Supremes f'ed up us what the employer could do about it to reduce the risk of litigation by the minority firefighters . . . who, mind you, had successfully sued the city many times before.
The falacious arguments don't end there,though. We then have Patent Lawyer's quote "the only evidence that the test was bad was the results by race; there was nothing on the face of the test that indicated the test was at all discriminatory." Well, DUH! That is what disparate impact analysis is about! And has been for close to forty years! Patent Lawyer, I don't go around opining on what is infringing and what is not; I let the guys down the hall from me do that. Likewise, you are a bit out of your depth opining on Title VII, obviously.
I can understand why you want to see it that way, believe me. That's what's so frustrating about this area of the law.
In a perfect world all genuinely race-neutral employment practices would produce racially proportionate results. (And the threat of litigation has been a highly effective motivator in getting companies to focus on developing such tests). But the fact is, genuinely neutral practices often do not produce such results--particularly when any kind of test is given--and they fail to do so in predictable ways: you won't find many Asians bringing disparate impact cases. We encounter the same problem with the SAT.
Affirmative action in hiring, contracting and education isn't about stopping white people discriminating against blacks and Hispanics out of racial animus. It's about pasting a band-aid over a farrago of social problems (often caused or exacerbated by government meddling) endemic in those communities. Society finds it much easier to do that than confront them head on.
Glad you mentioned the Wonderlick. Did you know that Dan Marino and Terry Bradshaw both did poorly on the Wonderlic. How did their careers turn out? Do you see anyone in the NFL, other than Al Davis, picking players based on 40 times, etc.? Er, no. You judge based on actual performance.
By relying on a test to select who will be permitted to get promoted, the majority, by definition, reduces the pool of people who would be able to perform in the position. And they are not excluded based on their PERFORMANCE as firefighters, but on their test scores . . . something that can be manipulated based on resources and access to information. Don't believe me? Google "Boston fire fighters" and "test scandal", where a bunch of firefighters (curiously, all White) had copies of a promotion exam, yet "forgot" to share the exam with their Negro brethren
You if you don't want interviews picking these things and you don't want tests, you're left with only one alternative--quotas.
As I already explained to you above, you're confusing statistical disparity with disparate impact liability. There's no dispute that there was a racial disparity in the test results. Title VII does not require that said disparity be eliminated; an employer cannot possibly do so.Well, no. More confusion on your part; disparate impact and "discrimination" are different things. Disparate impact does not turn on whether a decision is race-conscious; mere differences in outcomes are sufficient. Nobody alleges that the city intentionally tried to exclude blacks from promotions. (The only "discrimination" was against the Ricci plaintiffs.)
Your entire post is based on the mistaken notion that all a plaintiff need do in a disparate impact case is demonstrate statistical disparity to show that the test is flawed. That's just plain wrong. And therefore -- as per Ricci today -- it's insufficient for a city to say, "Look, there's a racial disparity."
So why is Hazelwood School District v. U.S., 433 U.S. 299 (1977) wrong?
No, it does not bother me. Because
a) The general counsel for the city explained why he thought the test should be thrown out;
b) the experts pointed out flaws in the test; and
c) even the 2 civil service board members who voted for the test noted that the city should get a new test. Not exactly a ringing endorsement.
The evidence of "racially motivated pressure" was eceedingly thin. Alito mentioned TWO PEOPLE, if I recall correctly, as his evidence of a racial mob mentality forcing the city to dump what the plaintiffs even acknowledge was a flawed test. Is that what counts for "racially motivated pressure" nowadays? Two rabble rousers in a city of a few hundred thousand?
Alito's concurrance trotted out that old "racial capture" saw that was trotted out in J.A. Croson. In other words, minorities have disproportionate power to influence events and, therefore, the Court must stand up for "the little guy", the poor downtrodden White males that Pat Buchanan so champions. Uh, huh. Funny that "racial capture" is never an issue when White decision makers keep minorities out of jobs at disproportionate rates, as was the history in New Haven.
Anybody can have an opinion about anything. But you get further if you have some idea of what you are talking about.
That's a lot flimsier than the evidence of racial pressure.
"disparate impact and 'discrimination' are different things."
Wrong! Discrimination can be divided into two catagories: disparate treatment and disparate impact. Disparate impact IS discrimination. And has been for close to 40 years!
"The only 'discrimination' was against the Ricci plaintiffs."
Again -- WRONG! The City had a history of race discrimination against minorities in the fire department. (I love how the pro-Ricci forces gloss over that teensy eensy fact.) And the test presented a prima facie case of disparate impact discrimination. When you have a city with a history of race discrimination, then they adopt a flawed test that creates a disparate impact against the same group they had discriminated against in the past . . . that is a plaintiff's lawyers dream! And that is why the city's general counsel recommended that they dump the test.
"Your entire post is based on the mistaken notion that all a plaintiff need do in a disparate impact case is demonstrate statistical disparity to show that the test is flawed."
And, again, wrong. My post said NOTHING about what a disparate impact plaintiff needed to prove to win. Because that is not what the problem was, whether they could "win" a disparate impact lawsuit. No, the problem was . . .
Why should the city have to face the risk of being sued over a flawed test?
The test was flawed and under Griggs v. Duke Power, it was a problem and presented potential liability of the city used the test and sure-enough litigation costs even if they won a disparate impact lawsuit. THAT is why the Ricci opinion makes no sense. The majority just made it that much harder for employers to comply with their responsibilites under Griggs to eliminate disparately impacting employment criteria.
Can the entirety of the NFL Combine thus be challenged under your interpretation of disparate impact law?
No one will actually defend New Haven's actions, even if benignly motivated, with all the facts at hand outside of an erudite and tolerant legal forum. You're trying to muck up the debate by throwing about murky accusations to other situations that are simply not relevant to the New Haven case. Some other guy, a "Cobra" I think, in a previous Ricci thread also tried to do the same and was utterly exposed in his ignorance by "someone in the know". Debate the principle, not the specifics.
To the contrary, it is not John Doe who is the moron, but his accuser. Disparate impact is many times presumed to occur after an incomplete assessment of the hiring situation has taken place. For instance, since the 1970s studies have shown that with important variables controlled, that racial wage discrimination has ceased to exist, see for example:
In the Ricci case, to isolate only one variables, race, and then presume that all other variables are either equal across the groups are are of no consequence, is to severely misdiagnose the issue. Disparate impact law is indeed idiocy in that it doesn't permit employers to rely on factors that account for the disparate impact and makes unwarranted presumptions. Many employers, all else being equal, will prefer to hire, or promote, the more intelligent candidate, for employee intelligence, even apart from specific job requirements, produces a positive return for the employer.
In the Ricci case we're not even talking about generalized intelligence of the applicants, but specific domain knowledge related to firefighting, so to have disparate impact considerations impede the staffing of leadership positions with the most knowledgeable candidates is a perversion of the principles of justice.
Just an aside, I once represented the NFL in a b.s. employment law case (national origin discrimination). The reasons why the NFL can't be sued are legion. But among them are:
1) The combine is not a requirement for employment.
2) Please show me the stats establishing a disparate impact based on race.
3) The NFL does not have a single player on its payroll. Individual teams hire players, not the League.
4) Mike Mamula. If you don't know who I am talking about, we need not continue discussing things NFL.
David N.: in fairness to your "adversary" he's likely dyslexic. With extra time, and a tutor, he may yet be able to memorize the spelling of your name, as well as score high on the NHFD promotion exams.
Yeah. Looks totally above-board to me.
See, that's the problem right there--you think that without quota-derived ethnic purity illegal discrimination has occured!
The Supreme Court just told you you're wrong about that. Maybe you can use your position as consul to business to help them choose the best candidates for jobs rather than genuflect at the altar of race-mongering.
Whatever. The most important thing you don't seem to grasp as you launch into your Quixotic screed against disparate impact analysis is:
a) d.i. is the law and has been so for close to 40 years.
b) Both sides in Ricci acknowledged that there was a racially disparate impact presented by the test. And
c) the threat of litigation and the cost associated with winning, not to mention losing (costs you pro-Ricci types never seem to address) were the motivating factors for the decision makers.
If an employer can't scrap a test that creates a disparate impact and, therefore, a needless risk of costly litigation, we are entering Never Never Land.
But the city might well have won that lawsuit. By refusing to do so, it left the top performers on the examination high and dry. I know where you are coming from, but you are ignoring the rights of the plaintiffs here. Are those rights irrelevant?
If you want to say that the city should have used a better selection procedure, I agree. But if that better procedure resulted in the same situation again, what would you do then? Are you in favor of quotas or the like despite Title VII language seeming to bar such devices?
I must confess that the case has so many angles that I quite easily can argue against just about any assertion that seems to me to be pushed too hard. This was a difficult case, and rote assertions are not helpful.
Blue, you STILL have not spelled out why Hazelwood is wrong.
Case in point: my sister is a Harvard Med educated research physician at Massachusetts General Hospital who graduated Phi Beta Kappa from an Ivy. And she SUCKS at standardized tests. Who in their right mind would chose the head of a department based on a test score? No one. Would you select a lawyer based on how well they did on the bar exam? Of course not. So why does it make sense in this case?
They left the top performers on the test high and dry. But what no one has said is that the BEST QUALIFIED for the promotion, or the TOP PERFORMERS IN THE FIREFIGHTING JOB got shafted. Those are very different measures.
"But the city might well have won that lawsuit."
And they might have lost it, too. But we know they would have had to spend hundreds of thousands of dollars defending a flawed test that had a disparate impact. How does that make any sense?
The relevant labor market is absolutely the starting point for determining whether there is a disparate impact or, as in this case, a pattern or practice of discrimination, But where do you get the idea that the labor pool in that case should have been limited to candidates living within the boundaries of the school district? Apart from the fact that such a residency requirement might well have resulted in a Title VII violation all on its own, I am not aware that the district had any such requirement or that even its own already hired teachers lived only in the district. Moreover, I do not understand why teachers cannot live in one jurisdiction and work in another, just like other types of employees. So the Court wrote:
Next objection, please.
So what, exactly, are you defending?
And Blue, I did not say I have 40 years experience with disparate impact analysis; I only have 13 years experience with it. But it has been around for close to 40 years.
And I did not say you can't have an opinion about Title VII; you have your right to your opinion. I said you don't know what you are talking about, so your opinion is rooted in ignorance, not facts or any knowledge of the law. Different point entirely.
"Funny that "racial capture" is never an issue when White decision makers keep minorities out of jobs at disproportionate rates, as was the history in New Haven."
Really? How do you imagine that Title VII got passed in the first place?
Given the country's history, I'm sure every city in the country has a "history" of discrimination. However, the city's recent past has shown bias against whites, not minorities. This was not a remedial measure, and the city did not try to defend it on such a basis, so any talk of the city's "history" of discrimination is purely irrelevant smokescreen.The plaintiff's lawyer is dreaming if he thinks that all he needs is a statistical disparity and some spurious reference to irrelevant "history."
Because liberal pleading rules allow anybody to be sued for anything, such that citing mere "risk of being sued" would provide cover for any racially-conscious act, no matter how discriminatory. Because calling the test "flawed" assumes the conclusion. And because the only alternative would be quotas, and quotas are illegal and unconstitutional.
But there's your problem: there is no such responsibility under Griggs (or under Title VII, which codified Griggs a couple of decades ago). The requirement is to eliminate non-job-related disparately-impacting employment criteria.
Again, I don't disagree that this creates an awkward situation for employers, but that's hardly the fault of the majority here. Title VII explicitly forbids disparate treatment, which is what Ricci was subject to here, being denied a promotion solely because of his skin color. In any event, neither Griggs nor Title VII can overrule the constitution, so if Griggs really required the city to do what it did, as you posit, then disparate impact liability itself would have to go.
Sure, that's the law. And the NBA analogy points out the problems with that law. Personaly I think it presents 14A problems, but the court didn't reach that.
I have said the same thing over and over agsin, which none of you pro-Ricci people seem to grasp:
1) the test was obviously flawed and the city knew it
2) the test created a disparate impact against minorities and the city knew it
3) the cite had been sued before by minorities for discrimination and lost. So
4) it would have been STUPID to certify the test under the circumstances. Why? Because . . .
5) the attorney for the minority firefighters would be salivating and left with the tough decision: whether to upgrade to a larger mini-mansion, or buy a boat.
You may not like disparate impact analysis; whatever. Your posts show, however, that you don't understand it, technically speaking, and you certainly don't grasp it, legally speaking. So it is akin to me arguing with my friend's dad, the astrophysics professor, about how all the theories of the cosmos are "wrong" when I can't even explain what they are. He would do what I am doing now: waste time trying to explain, then just give up.
As an original matter, it is hard to disagree with you. As you know, civil service exams were instituted to get rid of patronage selections and worse (like payoffs). In the beginning, no one really thought much about job-relatedness. What mattered was having a good-government-type selection procedure. Nobody worried too much about what the tests measured because all of the applicants were white.
I agree that a lot of the fealty to "choosing the best man" and the concept of "qualified" is bogus. I am fully aware of the history of resistance of the police and firefighter unions to everything that upset their cozy little worlds. I think that the present system of choosing public-safety officer is stupid.
But we have a legal regime that gives rights to multiple, conflicting parties. I know that putting the employer in the middle is not fun and is costly in many regards. But I do not think that the proper response to the winners of an exam that is possibly legal to say "sorry about that." As I had posted some weeks ago, this case presented the question of when could a white victim of an employer's refusal to defend its own selection procedure can step in to make the case that the procedure was lawful.
I cannot give you a categorical answer yet because I have not read the opinions carefully enough (and do not have a printer and will not get my Law Week until Thursday). Even then, I may be uncertain.
Anyway, it's your turn.
Your argued position is that:
1) A statistical difference is proof of discrimination;l
2) You'll get sued if you discriminated
so therefore:
3) Hire in quota-like fashion to avoid being sued.
Actually, I have had a fair amount of experience with discrimination law prior to focusing in patent law, so I'm not completely oblivious :)
I am quite aware that a prima facie case for disparate impact discrimination just requires showing that the disparate impact exists; however, that does not necessarily equal strong evidence of discrimination. (Note: given the amount of jobs with a disparate impact as seen by relative diversity numbers, such a rule would be extremely nasty for the country. For example, do women have a strong discrimination case against every single college math department in the country?) Prima facie case requirements are just about the requirements to survive summary judgment, not about the likelihood of prevailing.
So if the only evidence you have of a Title VII disparate impact case is the test results, and that's weighed against the great evidence of the efforts the city went to to make sure the test was race-neutral, it's not that great of a case. The same is true for a disparate treatment prima facie case; if the only evidence you have of disparate treatment is that the qualified plaintiff was rejected and the position remained open afterwards, you might survive the motion to dismiss but you're probably not going to win.
What you, and the dissent in Ricci, seem to be arguing for is a safe harbor for redoing tests where the test produced a disparate impact, regardless of what evidence the employer could have put forth at trial. This effectively mandates a quota, because there's no real difference between:
1. Redo tests until X whites are hired and Y blacks are hired; and
2. Hire the top X whites and top Y blacks.
Of course, option #2 is a disparate treatment violation if more qualified whites or blacks were passed over in favor of the other race. The dissent's position would allow a safe harbor for companies to use de facto quotas to avoid a disparate impact suit. You're welcome to defend that interpretation to the public, but I think you'll lose.
"Policies with disparate impact that don't have a business justification have run afoul of Title VII since Griggs; that doesn't make them 'discrimination.'"
You are just wrong. You are conflating what can be raised as a defense with what can make a prima facie case. The city was faced with having created a prima facie case of discrimination. They could certify the test and make the White guys happen and face a sure lawsuit; or they could dump the discriminatory test and piss them off. They chose the latter.
"However, the city's recent past has shown bias against whites, not minorities. This was not a remedial measure, and the city did not try to defend it on such a basis, so any talk of the city's 'history' of discrimination is purely irrelevant smokescreen."
Er, yeah. Where did you get that from? Stormfront.com? What was the evidence of "discrimination against whites"? There was none . . . which is why there was not a single statement by a decision maker, or any statistical evidence of Whites being underemployed in the city.
"--Why should the city have to face the risk of being sued over a flawed test? --
"Because liberal pleading rules allow anybody to be sued for anything, such that citing mere 'risk of being sued' would provide cover for any racially-conscious act, no matter how discriminatory. Because calling the test 'flawed' assumes the conclusion. And because the only alternative would be quotas, and quotas are illegal and unconstitutional."
Your answer is nonsensical. Rule 11 in federal cases sets a high threshold for pleading. And since there WAS A DISPARATE IMPACT, the city was 100% assured of a lawsuit (and a good one) if it used the exam. Your harping pon quotas (which the case had nothing to do with) belies your real agenda.
"But there's your problem: there is no such responsibility under Griggs (or under Title VII, which codified Griggs a couple of decades ago). The requirement is to eliminate non-job-related disparately-impacting employment criteria."
Again, you are just wrong. Title VII has a general requirement that employers police their own policies, procedures and practices and eliminate discriminatory conduct and outcomes. And you know what happens when they don't? Punitive damages under the civil rights statutes!
"Title VII explicitly forbids disparate treatment, which is what Ricci was subject to here, being denied a promotion solely because of his skin color."
And again, you are just wrong. The test did not establish who WOULD BE promoted; it established the pool eligible for promotion. He was denied nothing. The city's legitimate non-discriminatory reason for dumping the test (its disparate impact) was understandable, reasonable, and made good business sense.
"In any event, neither Griggs nor Title VII can overrule the constitution, so if Griggs really required the city to do what it did, as you posit, then disparate impact liability itself would have to go."
It will not because there is a reason for disparate impact analysis. It's the law of the land and Ricci did not change that.
1. Does the mere fact that a higher percentage of whites than blacks passed the test absent any other information establish "disparate impact" discrimination?
I'm not a lawyer, but it seems to me that this is what you are arguing.
2. If so, then shouldn't Title VII simply read: "the racial distribution of hires should be proportional to the racial distribution of the applicant pool"?
3. If not, then what additional facts need to be established? You assert that the test was "flawed", but going over the ruling I found no evidence of any flaws in the test (except for the obvious one: it didn't produce the right racial balance). There was copious evidence of the designers attempting to avoid bias (even introducing biases in the reverse direction), but no evidence of any actual biases in the test.
Lior
Would the use of an assessment center do? Are you comfortable with a situation in which every promotion announcement leads to a fresh lawsuit? How would you avoid quota-like solutions and still be able to withstand legal challenges from whatever direction?
OF COURSE THERE WAS A DISPARATE IMPACT; ALL EXAMS HAVE A DISPARATE IMPACT. SO WHAT? That doesn't make a "good lawsuit." It makes a lawsuit that can survive a motion to dismiss.
And the case had everything to do with quotas, as several people above have painstakingly explained to you: either the city is required to promote people in proportion to their share of the relevant population -- i.e., quotas -- or there's a claim of disparate impact. What's sad is that you honestly don't understand this: the opposite of disparate impact is quotas.
In light of what I wrote after your post, why do you think it is that it took over 40 years for the issue presented in this case to surface?
If the latter, there's no good way, except to implicitly institute quotas, which also requires that you make promotion decisions subjective. If the criteria are objective, then you run into disparate impact problems, plus, quotas become too obvious; if they're subjective and there are no quotas, then you run into accusations of disparate treatment.
1) Few tests were probably designed as robustly as this one until recently. That's what made the case so egregious; they put all that time and money into developing the test, and then tossed it. If the test were more slapdashedly thrown together, then the fact that it was flawed would have been obvious, and the city's claim that it acted out of fear of disparate impact liability would have been more credible.
2) If cities had a history of discrimination, they had very possibly already faced either disparate treatment lawsuits or disparate impact lawsuits from minorities and were operating under remedial consent decrees anyway, which would insulate them.
I'm sorry b-rob, I'm going to call you on Godwinning the thread. You lose. Sorry. Better luck next time.
I am winding down for the day and hope, when I show up tomorrow, to see a lot more posts that will distract me from doing what I am supposed to do. This discussion is lot more interesting.
That's also why I'm here. #$*&ing document review...
I suppose the issue lends itself to such a classic metaphor.
No, what's sad is that he is, apparently, counselling clients to introduce de facto quota systems to avoid lawsuits.
change that at all? I can see judges who are not inclinded towards DI claims using the plausible evidence standard to toss on the pleadings.
Though apparently at least the district court judge here was more than sympathetic to such cases.
"The 6:37 and 6:41 posts from Patent Lawyer and David M. Nieporent raise the question in my mind as to what a city with a mostly white fire department and a history of bad race relations should do to get a method of making promotions that would withstand a legal challenge from anyone."
Establish a study group for prospective candidates. Make sure a diverse pool is invited. Take attendance.
I am not, dare I say it, "unsympathetic" to your frustration with the achievement gap that bedevils us all. But you're angry at the wrong people. We're lawyers, so we always think we can lawyer our way to a better tomorrow. And hey, sometimes we can. But not here. It's not racist tests that are causing certain minorities to under-perform; it's so much more complicated than that. And fixing it will take a lot more than lawsuits and indignation.
As for me, I figured there had to be a connection between the illiteracy of my prison correspondence and the choices my clients make about how they earn their daily bread. Most of my non-ESL clients attended public school from ages 5 to at least 16, yet I'd say more than half of them are functionally illiterate.
So I started tutoring at the literacy council. Two of my guys went from a 3-4 grade reading level to passing the GED in just a few years. My arsonist guy went from being unable to say the alphabet (and he had his diploma) to 2 grade before he switched his shift and had to quit. Some tutors specialize in helping people with literacy issues pass licensing exams to get their CDL or become a CNA.
That's what it takes to make things better, to help people overcome the disadvantages of being born into the urban underclass, as minorities disproportionately are. All the drugs, and mental illness, and violence, and neglect--it's seems nightmarish to me but it's ordinary life to my students and clients. So if you want to help, then roll up your sleeves and help. But it's hard and it takes time and it's just a lot easier to scream and yell and sue.
I work for a huge company that makes some huge products that more than one of you use everyday and that has to be engineered to prevent failure even in the face of certain disaster. And I think our hiring practice was clearly designed by lawyers to keep us from getting sued (and my guess is, from getting sued "again".)
So we do establish a pool of prospective candidates, and then we establish a pool of interviewers who are given training in what is a good question and what is not and what can be asked and what cannot be asked and establish a preset list of questions and every candidate is asked the same question in an interview in the same order and all of the panel is expected to take down notes that are later turned in at the end of each interview. There are no opportunistic questions asked.
I think that's overly restrictive but somehow we do manage to mostly keep our products and your bodies in one piece by finding qualified applicants and avoiding lawsuits.
So it is possible and I haven't seen us yet have any ability to change the rules after the fact. In fact, what I find bizarre is the notion that the test made them fear a lawsuit, but changing the rules post facto did not.
I realize that it may sound racist to say this - and it's not my intention - but it seems to me that all the legalisms aside, we are talking about the Fire Department (it could as easily have been the Police Department or the EMT's). These are jobs that can save people's lives - or cost them their lives if firefighters - particularly officers - make a wrong decision.
Admittedly, there are many ways to select for promotion, but written tests of one's understanding of the principles of the profession, as well as (presumably) basic leadership/management principles should certainly be part of the mix. Modern firefighting (and law enforcement) is more than just driving up to the scene and pouring on lots of water (or laying about with a nightstick for the police).
If a test (presumably representing the best available race-neutral content and methodology) is failed by nearly all minority applicants, is it unfair to ask whether those applicants are qualified to become Fire Department Officers? It seems to me, that in some jobs, public safety is more important than catering to affirmative action.
The proper answers to these sorts of problems ought to be:
1) To do our best to develop testing and evaluation methods to choose truly qualified candidates for these safety-critical jobs.
2) For the affected departments to institute educational programs to bring otherwise qualified candidates to a level where they can pass the tests and perform the job safely.
3) In the meantime, to promote candidates as required by the department from those who are, by the best currently available standards, best qualified, without regard to race or ethnicity.
4) One would also hope that the departments in question would have the cojones to demote officers who, despite passing the various tests and evaluations, turned out to be unsuitable. This would probably be difficult if a union is involved...but remember, we are dealing with public safety, not road repair or garbage collection.
Hey, I have an idea. Let's create some more public options! Maybe half of the patients could end up functionally dead. Think of the savings!
Let's treat everyone the same. Period.
Take the example of female firefighteers. They were precluded from service because they didn't meet the arbitrary height and weight requirements. Those were not intended to discriminate, they pretty much were artifacts of a world where women didn't apply. They were struck under disparate impact analysis, and so there was a shift to tests that directly measured what firefighters did. The result was less discrimination and better quality firefighters. Is that bad?
Just speculating here based on your comments -- are you African-American?
Feel free to call me a racist, but based on my life experience and your wildly impassioned comments, I wouldn't doubt that your opinions are fueled by feelings of inadequacy and a sense of guilt as an affirmative-action law school admittee.
This is pure psychological conjecture and not germane to this legal topic, but your intemperate remarks suggest more than mere advocacy.
Sorry, but if I'm incapacitated in a fire/accident/whatever, I don't want some 4'10", 110lb waif of a woman trying to drag my fat ass to safety. Physical strength and agility are important, dammit, and ignoring that fact just to placate the Gods of Diversity only serves to get people killed.
And take it to the bank that the only reason that 90% of prisoners are male is a criminal justice system seething with blatant sexism.
In the ideal world, half the prisoners are female ;)
(Had the city not thrown out the test, several blacks would have been promoted by now based on the results, which were good for two years.)
It is one thing to apply disparate impact in a testing situation in which a selection of one person means a rejection of another (thus giving the rejected person a foothold claim of some sort). It is quite another, as noted by frankcross, to apply it to height and weight requirements (not just to public-safety officers but also to flight attendants and the like). Another example of the second type would be no-beard rules that exclude blacks disproportionately because blacks disproportionately suffer from PFB. In this second type, people are excluded from hiring or consideration pools, and a remedy would not damage the chances of others except for the fact that it would increase competition.
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