Reverse-Discrimination Case Splits Supreme Court

Warren Richey, Christian Science Monitor, April 23, 2009

The US Supreme Court divided into sharply defined liberal and conservative wings on Wednesday as the high court heard argument in a case [Ricci v. DeStafano] involving allegations of reverse discrimination against white firefighters in New Haven, Conn.

As in most highly divisive issues at the high court, the outcome of the case may ultimately depend on the views of Justice Anthony Kennedy. During the 70-minute oral argument Wednesday, Justice Kennedy seemed troubled by the city’s decision to throw out all results of a promotion exam only after officials learned that no African-American candidates had scored high enough to be promoted.

“[The city] looked at the results, and it classified the successful and unsuccessful applicants by race,” Kennedy told Deputy Solicitor General Edwin Kneedler. “And you want us to say this isn’t [using] race [to decide]. . . . I have trouble with this argument.”

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The case is significant because it lies at the intersection of two important provisions of antidiscrimination law and could provide further clarity to employers seeking to avoid potential discrimination lawsuits.

It focuses on a test given in 2003 to firefighters seeking promotion to lieutenant and captain. When the city determined that no African-American candidates qualified for a promotion it threw out the results. White and Hispanic firefighters who did qualify called it illegal discrimination and filed a lawsuit.

The city says it threw out the test in an effort to comply with civil rights laws, not violate them. New Haven officials said they were worried that if they relied on the results of the test and promoted the white firefighters, the city might be vulnerable to a lawsuit by black firefighters claiming that the test caused an illegal “disparate impact” against minority job candidates.

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But it is frequently difficult to prove that an employer is engaged in intentional discrimination. For this reason, Congress has also empowered victims of discrimination to sue in instances when an employment practice results in a disparate impact against members of a protected minority group.

Ricci v. DeStefano involves both sides of Title VII. The white and Hispanic firefighters are suing for what they say is intentional discrimination by the city, while the city justifies its decision to throw out the test results on grounds that it was only seeking to prevent a violation of the disparate impact side of Title VII.

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The disparate impact section of the law is a prophylactic against intentional discrimination, [Deputy Solicitor General Kneedler] Kneedler said. It is designed to encourage employers to self-police their employment practices by halting and correcting any practice that might result in a disparate impact against minority workers, he said.

The justices were divided over whether the completed employment test should have been so easily discarded.

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{snip} Chief Justice John Roberts said New Haven’s position, if adopted, would create a “blank check to discriminate” against white employees.

One recurring issue during the argument was whether employees who pass a promotion test are entitled to not have the test thrown out.

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The firefighters’ lawyer, Gregory Coleman, told the justices that the city threw his client’s high-ranking test scores out based on a mere “good faith belief” that the city might be sued. He said the city should have to demonstrate more to justify the adverse action against his clients.

“Our firefighters had already taken the test; they had earned their promotions under state law,” he said.

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The Supreme Court’s conservative majority expressed varying degrees of concern Wednesday over a civil rights case brought by 20 firefighters, most of them white, who claim reverse discrimination in promotions.

The suit was filed in response to New Haven, Connecticut, officials’ decision to throw out results of promotional exams that they said left too few minorities qualified.

At issue is whether the city intentionally discriminated, in violation of both federal law and the Constitution’s equal protection clause.

The high court is being asked to decide whether there is a continued need for special treatment for minorities, or whether enough progress has been made to make existing laws obsolete, especially in a political atmosphere where an African-American occupies the White House.

As is true in many hot-button social issues, Wednesday’s arguments fell along familiar ideological lines, with most justices expressing clear views on when race considerations are proper to ensure a diverse workplace.

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Key plaintiff Frank Ricci and others took promotional exams in 2003 for lieutenant and captain positions that had become available in New Haven, Connecticut’s second-largest city. The personnel department contracted with a private firm to design an oral and written exam. When the results came back, city lawyers expressed concern about the results because none of the black firefighters and only one Latino who took the exam would have been promoted.

The New Haven corporation counsel refused to certify the test and no promotions were given. The record does not indicate how many firefighters took the two tests for promotion to captain and lieutenant.

The city said that under a federal civil rights law known as Title VII, employers must ban actions such as promotion tests that would have a “disparate impact” on a protected class, such as a specified race or gender.

But a group of firefighters sued, calling themselves the “New Haven 20.” The plaintiffs, wearing their dress blue uniforms, posed on the high court steps after the 75-minute argument. Nineteen identify themselves as white while one says he is Hispanic-white.

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Justice John Paul Stevens suggested that if there were a choice of two tests, one of which had a lesser “disparate impact” on minorities, “they could take that test, even though its sole purpose was to achieve racial proportionality in candidates selected.”

The firefighters’ attorney, Greg Coleman, countered by saying the city’s action in this instance “violates the principle of individual dignity.”

Kennedy’s views could prove key. He appeared to oppose the city’s dismissal of the test results and has traditionally been skeptical of many race-based decisions in education and the workplace. But his more moderate views could blunt the impact of any ruling by his more right-leaning colleagues.

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The Obama administration also has taken a nuanced position on the appeal. A Justice Department lawyer told the high court that while the federal government supports the city’s discretion to nullify the test results, it believes the lawsuit should be allowed to proceed on a limited basis.

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The case is Ricci v. DeStefano (07-1428). A ruling is expected in about two months.

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