Sustained!: In Questionable Hands

Thursday, April 16, 2009

In Questionable Hands

On April 22, 2009, the United States Supreme Court is set to hear oral arguments in Ricci v. DeStefano, a reverse-race discrimination case filed by white firefighters in New Haven, Connecticut. This case has the potential to reshape the hiring practices of many public employers and deal a devastating blow to advancements in the fight against discrimination.

At the center of the suit is a standardized test which was developed to determine promotions for 15 vacancies in upper management in New Haven's fire department. The city coded the test takers by race, and of the top 15 scorers, 14 were white and one was Hispanic. Because there were only 15 vacancies in the top ranks of the fire department, no blacks would be promoted. After a lengthy and racially charged debate, the city's civil service board rejected the test scores in 2004 and promoted no one. Suit was filed by the firefighters when test scores were thrown out.

The City asserted that the test had a "disparate impact on the basis of race" and was not "required by business necessity." Basically arguing the "disparate impact" theory of discrimination which was first fashioned in 1971 by the U.S. Supreme Court in Griggs v. Duke Power Company; the City prevailed and won on Summary Judgment. The firefighters appealed and the Supreme Court is now set to hear the case.

In 1971 in Griggs, the Supreme Court found that Title VII of the Civil Rights Act "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." Because of Griggs, many objections to systemic discrimination have been SUSTAINED!

The rule forbidding employment practices which have a disparate impact on minorities provides an important safeguard against systemic discrimination. Without such a rule an employer with 9000 male employees and only 900 female employees, could easily eliminate women from promotions by creating a testing procedure that only promoted the top two percent of performers. The mere disparity in numbers would eliminate or dramatically decrease the possibility that a minority would get the top spot.

Furthermore, other practices that are normally subject to a disparate impact challenge (which include written tests, height and weight requirements, educational requirements, and subjective procedures, such as interviews) could be allowed regardless of their disparate impact on minority groups. Such things could be allowed, even if they had nothing to do with one's ability to perform the job well. Imagine an employer selecting all men for promotions and then giving "they interviewed better" as an explanation.

While this will be Justice Roberts' first case dealing with the issue of race in employment, it is not his first case dealing with race. If his track record is any road map of things to come, then minorities in our country may be lost in a

labyrinth of despair. In Parents Involved in Community Schools v. Seattle School District, Justice Roberts wrote the opinion of the Court when it struck down two school districts' attempts to implement plans for desegregation. Roberts used arguments that neo-conservatives have used against diversity for years. Moreover, the tone he takes in the opinion when addressing the arguments of the dissent appears to be arrogant and intolerant. Ricci presents the Court with an opportunity to dismantle Supreme Court precedent designed to shepherd large employers through discriminatory hiring practices. The disparate impact theory is an important safeguard against discrimination that needs to be protected. Having Justice Roberts as one of the guardians of our constitutional rights makes me feel very uneasy. And if he is able to secure the support of a majority of justices in the Ricci case, my uneasy feeling may soon be shared by many.

The Seattle School District opinion can be found at http://www.law.cornell.edu/supct/html/05-908.ZO.html.

4 comments:

john gibsonApr 17, 2009 12:15 PM
some good posts, I am still surprised by a lot of the openness that can be found in your country, like for example the you tube video in the earlier post.
all the best
John Gibson
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AnonymousApr 18, 2009 04:07 AM
Eric----keep up the good work.It is time for a smart man like you to be speaking from the viewpoint of a African American in Houston. We all know prejudice still exists.
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AnonymousApr 18, 2009 10:28 AM
This will be a very interesting case because the parties are in the opposite positions. Usually the argument of the aggrieved party is about using a test which has a disparate impact. In this case the white firefighters are arguing that the city's refusal to use results of a test--which the city deemed had a disparate impact on minorities--was intentional discrimination against them based on race.

It is a "unique" argument but it should not be sustained. The problem for the City of New Haven is that they have in the past (according to the public record) flouted civil service laws to increase diversity. Since Justice Kennedy will probably decide this case, hopefully he wont view the city's concern about the test's disparate impact as being suspect.
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AnonymousApr 30, 2009 09:48 AM
If I as a resident of New Haven have showed contempt for a law by openly disobeying or defying it then it is against the law for me to be a man of color. If the essense of my man is a violation to thier ethnical creed then I am guilty of only one thing and that is being a black man invoking my rights. If diversity increases when my voice selects a movement of justice then the system is already flouted with ignorance toward mankind. Also if the protection of my civil rights as a colored man raises the eye brows of another man then who is truly accountable for the increase of contemption. If I were a black woman perhaps my voice would be heard because at least then there would be elements to accomidate my feild but I am a black man. My black woman is a production of who I am and she is a reflection of my divinity. The dispensation of the Polar Bear Club hurt us both and I understand the expedition that exemplifies its nature. I am what I am and if being who I am makes another man uneasy then I am not responsible. It simply suggests that another man is inferior to the disposition of my man. He is opposed to the juridiction in the essense of my created man as a black man. I will not let technicalities deray me from seeking justice and I refuse to let my man die because It is my desire to see my women live. It is my desire that all men live equally both black and white and greek and jew. It is my desire that we all produce fairness and equation in the mist of diversity and that we all as a people be treated equally.
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