White Firefighters Win Supreme Court Appeal

[Slartibartfast]

O.k. Apparently i did it wrong.

1) What affect will this have in lawsuits across the nation based on employment and race

2) How will this affect Sotomayer

White Firefighters Win Supreme Court Appeal - ABC News

White Firefighters Win Supreme Court Appeal

White firefighters prevail in Supreme Court ruling on race and promotions

By MARK SHERMAN

The Associated Press

WASHINGTON


The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.
The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.
New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.
The ruling could give Sotomayor's critics fresh ammunition two weeks before her Senate confirmation hearing. Conservatives say it shows she is a judicial activist who lets her own feelings color her decisions. On the other hand, liberal allies say her stance in the case demonstrates her restraint and unwillingness to go beyond established precedents.
Coincidentally, the court may have given a boost to calls for quick action on her nomination.
The court said it will return Sept. 9 to hear a second round of arguments in a campaign finance case, and with Justice David Souter retiring there would be only eight justices unless Sotomayor has been confirmed by then.
In Monday's ruling, Justice Anthony Kennedy said, "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." He was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."
Justices Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday. Speaking dismissively of the majority opinion, she predicted the court's ruling "will not have staying power."
Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.
But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.
"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.
Sen. Patrick Leahy, chairman of the Judiciary Committee, said Sotomayor should not be criticized for the unsigned appeals court decision, which he asserted she did not write. "Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent," said the Vermont Democrat who will preside over Sotomayor's confirmation hearings next month.
Leahy also called the high court decision "cramped" and wrong.
In New Haven, Nancy Ricci, whose son, Frank, was the lead plaintiff on the lawsuit, carried a large cake decorated with red, white and blue frosting into the law office where the firefighters were celebrating their victory.
Ricci's father, Jim Ricci said the ruling is a victory for firefighters across the country. "Now we're going to get the best managers as far as firefighters go. That's really important," Ricci said.
Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.
Fifty-six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.
The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.
The white firefighters said the decision violated the same law's prohibition on intentional discrimination. The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.
Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.
The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.
"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."
But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.
Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.
"Today's decision sets these paired directives at odds," she said.
———
Associated Press writer Katie Nelson in New Haven, Conn., contributed to this report.

Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.
Copyright © 2009 ABC News Internet Ventures

[mhailey]

This decision is as it should be. With the democrates firmly in control of the whitehouse, senate, and house of reps, I don't think the overruling of her decision will have any impact on Scarymayor's nomination. the Dems won't allow anything to derail this nomination.

Matt

[singlewedge]

The effect that it will have across the country is this:

Lets say that at your office there are 2 employees up for promotion. 1 white and 1 non white. They both test well but the white employee tests better in some areas than the other. The company wants to promote the white guy but they can't because they already have 3 white supervisors and no non-white supervisors. So they hire the non-white even though he is not as qualified because they are afraid that if they do not then the employee can call it discrimination.

Post decision the employer can now not worry about the lawsuit for not hiring the non-white.

Let me be clear that when I say white or non-white this can work with ANY race and could go for gender as well. This is a very slippery decision.

If you are the only person of your race working at a place and are constantly denied promotions and others are getting them this decision, IMO, takes away your right to sue the employer for discrimination.

I think the decision goes too far. I personally do not like hiring someone based on a quota but if my right to sue goes away when I am clearly being discriminated against, but a test says that I am deficient in some way and this is what my employer is basing everything on. Clearly that sucks.

[gratewhitehuntr]

SingleWedge, I'm not sure that this is SO big as to prevent future racial discrimination suits.

can anyone with a better understanding of this case speak to EXACTLY how the minorities alleged that they were discriminated against?

I understand that the pass rate was low with the minorities, but what explanation did they give for the failure rate?
Is there something white people can learn that blacks/Latinos cannot?

[Bruno]

If you are the only person of your race working at a place and are constantly denied promotions and others are getting them this decision, IMO, takes away your right to sue the employer for discrimination.

I think the decision goes too far. I personally do not like hiring someone based on a quota but if my right to sue goes away when I am clearly being discriminated against, but a test says that I am deficient in some way and this is what my employer is basing everything on. Clearly that sucks.

I am the only Bruno working at my place. If I get denied promotion, I will sue because it's clear that they prefer non-Brunos for the good positions...

See how silly that sounds
If for some reason there is one black guy and 9 white guys who are up for promotion, then logic dictates that all else being equal, he only has a 10% chanc being chosen, just like all the white guys. And it would mean that it is almost a given that the promotion will go to a white guy. That is not discrimination. 8 other white guys didn;t get that promotion either.

[LX_Emergency]

And then some. Picking someone because he's black is just as dumb as picking someone because he's white.

[Bruno]

This decision is as it should be.
Matt

Exactly. If you want discrimination based on race to stop, then why on earth would you even care about the demographic at all? That's like saying we don't do affirmative action, but unless there is a black person and a hispanic person passing the test, it's not valid...???

[joesixpack]

1) I don't think this will have much effect outside of this case on Affirmative Action, but there will be a tsunami of angry white men trying to sue over alleged reverse discrimination. 99.9% of these cases will be without merit, though.

2) I think this hoses Sotomayer's nomination.

For the record, I am not against Affirmative Action, as long as it is within reason.

[Basset]

1) I don't think this will have much effect outside of this case on Affirmative Action, but there will be a tsunami of angry white men trying to sue over alleged reverse discrimination. 99.9% of these cases will be without merit, though.

2) I think this hoses Sotomayer's nomination.

For the record, I am not against Affirmative Action, as long as it is within reason.

Ricci isn't an affirmative action case. Title VII not only forbids intentional discrimination, but also discrimination by means of a "disparate impact." That exists when facially neutral criteria have the effect, even of not the intent, if screening out minorities. The employer would then be required to show that the criteria used were (1) job-related and (2) consistent with business necessity. Even then, the person challenging the criteria may prevail if he or she proves that there are equally suitable alternatives that would not have the same screening out effect.

In this case, there was no dispute that there was a disparate impact on racial minorities. E.g., better than 50% of the whites who took the Lt. test passed; blacks passed at rate of 20%. Blacks made up 19% of the applicants, but only 8% of the passing applicants.

The City, evidently fearing a disparate impact lawsuit by disappointed minority candidates, tossed out the test results and announced it would create a new test. The newly-disappointed white candidates claimed that the do-over itself was intentional discrimination.

So the legal question presented was: May an employer, seeking in good faith to avoid liability under the disparate impact arm of Title VII, nonetheless incur liability under the disparate treatment arm of Title VII, and if so, under what circumstances?

The majority opinion held that a bona fide effort to avoid a disparate impact lawsuit by minority candidates isn't enough to avoid liability for disparate treatment lawsuit by white candidates. The employer needs to make a "strong showing" " that if it were sued, it would lose the disparate impact lawsuit.

The dissent argued that having a good faith, reasonable belief of potential liability for disparate impact was enough to justify a do-over.

The facts were very detailed, and I'm afraid I've done no real justice to that. Both sides had some strong facts. The white firefighters worked hard and scored highest. (One top white candidate achieved the score despite his own dyslexia) The test Qs were drawn from materials identified to applicants.

On the other hand, some of the test questions (developed by a national consulting firm that did interview many city firefighters) evidently related to practices that arose in other cities, such as New York, but did not reflect New Haven practices. There was some evidence that there was unequal access to resource materials (some stuff was back-ordered) which were expensive ($500 or more).

I am necessarily leaving some of the details out; I spent the whole evening reading the 93 pages' of opinion from the justices. To do it justice, so to speak, you have to read what the judges said. A soundbite or brief news article isn't going to do it for you.

I am also curious who is familiar with the assessment center approach to evaluating firefighters -- rather than using a written test, the fire depts send the candidates to be judged on the basis of live scenarios, group interviews, oral exams, as well as written exams. The written exams are weighted slightly less than the real-time performance. The dissent points out that the disparate impact on minorities tends to drop dramatically when this approach, rather than the written test approach is used.

Anyone familiar with the assessment center approach? I would love to hear more about them. Evidently many municipal depts. use them.

[joesixpack]

Ricci isn't an affirmative action case.

I'm misunderstanding something here then. Why did the City of New Haven scrap the promotion exam if it was not because of an affirmative action policy? Was not this at least tangentially about affirmitave action?

Edit; I think I understand the issue here, and though I still think there is some tangency to affirmative action, it has clearly more to do with the city's fear of lawsuits related to not promoting a minority. I see the difference.