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The New York Times
U.S.
Justices Rule for
White Firefighters in Bias Case
By DAVID STOUT,
nytimes.com from the Web, June 29, 2009
WASHINGTON — The Supreme Court
ruled on Monday, in a case with enormous implications for workplaces across the
country, that white firefighters in New Haven suffered unfair discrimination
because of their race when the city scrapped the results of a promotional exam.
“The city’s action in discarding the tests violated Title VII,” the court held
in a 5-to-4 decision, referring to a section of the Civil Rights Act of 1964.
The majority said the city’s fundamental arguments were “blatantly contradicted
by the record.”
Monday’s decision in Ricci v. DeStefano, No. 07-1428, came on the last
day of the court’s term and was one of the most closely watched discrimination
cases in years. The ruling is sure to be closely studied by personnel
departments and their lawyers for indications of how far employers can go, and
under what circumstances, in considering race in decisions on hiring and
promotion.
And while the case concerned public employees, the ruling is also likely to
affect private employers, since Title VII of the Civil Rights Act covers private
employers as well as public ones, according to Prof. Sheila Foster of Fordham
Law School. (Professor Foster teaches anti-discrimination Law and has been
involved in litigating cases under the Civil Rights Act.)
The case was rooted in tests given in 2003 for promotion to lieutenant and
captain. The exams yielded no black firefighters eligible for advancement,
prompting the city to throw out the results and promote no one. That move,
in turn, triggered a lawsuit by 18 white firefighters, one of them Hispanic, who
claimed racial discrimination, or what is often termed “reverse discrimination.”
The ruling reverses a federal district court and the United States Court of
Appeals for the Second Circuit, which had found in favor of the city, and sends
the case back to the lower courts for further action. (Judge Sonia
Sotomayor, President Obama’s nominee for the Supreme Court, had ruled in the
city’s favor as a Second Circuit judge.)
The ruling on Monday, written by Justice Anthony M. Kennedy, acknowledged that
the city faced a “damned if you do, damned if you don’t” situation, as Justice
David H. Souter put it when the case was argued on April 22. That is, if
the city had allowed the promotional exam to stand, it would have faced a
lawsuit from black firefighters.
But the city’s dilemma did not justify scrapping the exam results, Justice
Kennedy wrote, in a conclusion also embraced by Chief Justice John G. Roberts
Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
“Fear of litigation alone cannot justify the city’s reliance on race to the
detriment of individuals who passed the examinations and qualified for
promotions,” the majority said.
The white firefighters had contended that the city’s action also violated their
rights under the Equal Protection Clause of the 14th Amendment. But the
court said it did not have to address that allegation once it found against the
city under the Civil Rights Act.
Justice Ruth Bader Ginsburg wrote a dissent joined by Justices John Paul
Stevens, Stephen G. Breyer and Souter, taking part in his last opinion before he
retires from the court. Justice Ginsburg read her dissent from the bench,
a clear signal of her deep disagreement with the majority.
“It took decades of persistent effort, advanced by Title VII litigation, to open
firefighting posts to members of racial minorities,” she said. Moreover,
she said, contrary to the majority’s finding, there was “substantial evidence of
multiple flaws in the tests New Haven used.”
“Firefighting is a profession in which the legacy of racial discrimination casts
an especially long shadow,” Justice Ginsburg observed, alluding to a report by
the United States Civil Rights Commission in the early 1970’s finding racial
discrimination in municipal employment even “more pervasive than in the private
sector.”
The terms “disparate treatment” and “disparate impact” were crucial to the New
Haven case. As originally enacted in 1964, Title VII of the Civil Rights
Act held employers liable only for disparate treatment on the basis of race,
color, religion, sex or national origin.
But in a 1971 case, Griggs v. Duke Power Company, the Supreme Court
interpreted Title VII as prohibiting, in some cases, employer practices that
were neutral on their face but discriminatory in operation. These
“disparate impact” practices are to be prohibited if the employer cannot show
that they arise from “business necessity.”
Notwithstanding Justice Souter’s “damned if you do, damned if you don’t”
observation when the case was argued, the majority concluded on Monday that the
City of New Haven “cannot meet that threshold standard” of showing that it would
have been liable to a suit under the “disparate impact” principle.
Professor Foster of Fordham predicted on Monday that “this decision will change
the landscape of civil rights law and casts continued doubt on the disparate
impact theory of discrimination.”
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