On April 22, 2009, we posted here about a race discrimination case pending before the United States Supreme Court called Ricci v. DeStefano. In that case, white and Hispanic firefighters in New Haven, Connecticut sued the city, claiming they were denied promotion because of their race. For those of you who have not heard (this case has been all over the news and now plays a significant role in the Supreme Court confirmation hearings for Judge Sonia Sotomayor), the Supreme Court issued a decision on the case on June 29, 2009.
In a 5-4 decision (written by Justice Kennedy and in which Justices Roberts, Scalia, Alito, and Thomas joined), the Supreme Court decided in favor of the firefighters and held the city's action in discarding the promotion test results violated Title VII.
The city argued they discarded the test results because the results appeared to violate Title VII's disparate impact provisions. Specifically, the city argued the test results favored white and Hispanic firefighters over black firefighters. The white firefighters, however, argued the city engaged in disparate treatment discrimination against them. Justice Kennedy sought to resolve the conflict between disparate impact and disparate treatment provisions in Title VII. In doing so, he adopted the "strong-basis-in-evidence standard" to resolve any conflict between disparate treatment and disparate impact provisions.
Justice Kennedy wrote that before an employer can engage in intentional discrimination, the "employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action." Justice Kennedy found the city had no strong basis in evidence that the promotion tests were inadequate or flawed. Justice Kennedy also held fear of litigation alone is not enough.
Moving forward, therefore, employers must remember this strong-basis-in-evidence standard when making race-based decisions in the workplace. Does the employer have a history of racial disparity? Is the employment decision-making process open and fair? What exactly forms the basis for the employer's decision to make a race-conscious decision?
The more interesting (and less discussed) portion of the Court's decision in Ricci is Justice Scalia's concurrence. Justice Scalia argues an inherent conflict between the disparate treatment and disparate impact provisions in Title VII. Justice Scalia argues any race-based decisions made to remedy potential disparate impact are in fact disparate treatment discrimination decisions. Justice Scalia seems to indicate both a willingness and desire to remove disparate impact protection. Although we do not anticipate any such move (based on the Court's current membership), this concurrence may provide support for employers in district and appellate courts as they address lawsuits which invoke the Ricci decision.
In a 5-4 decision (written by Justice Kennedy and in which Justices Roberts, Scalia, Alito, and Thomas joined), the Supreme Court decided in favor of the firefighters and held the city's action in discarding the promotion test results violated Title VII.
The city argued they discarded the test results because the results appeared to violate Title VII's disparate impact provisions. Specifically, the city argued the test results favored white and Hispanic firefighters over black firefighters. The white firefighters, however, argued the city engaged in disparate treatment discrimination against them. Justice Kennedy sought to resolve the conflict between disparate impact and disparate treatment provisions in Title VII. In doing so, he adopted the "strong-basis-in-evidence standard" to resolve any conflict between disparate treatment and disparate impact provisions.
Justice Kennedy wrote that before an employer can engage in intentional discrimination, the "employer must have a strong basis in evidence to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action." Justice Kennedy found the city had no strong basis in evidence that the promotion tests were inadequate or flawed. Justice Kennedy also held fear of litigation alone is not enough.
Moving forward, therefore, employers must remember this strong-basis-in-evidence standard when making race-based decisions in the workplace. Does the employer have a history of racial disparity? Is the employment decision-making process open and fair? What exactly forms the basis for the employer's decision to make a race-conscious decision?
The more interesting (and less discussed) portion of the Court's decision in Ricci is Justice Scalia's concurrence. Justice Scalia argues an inherent conflict between the disparate treatment and disparate impact provisions in Title VII. Justice Scalia argues any race-based decisions made to remedy potential disparate impact are in fact disparate treatment discrimination decisions. Justice Scalia seems to indicate both a willingness and desire to remove disparate impact protection. Although we do not anticipate any such move (based on the Court's current membership), this concurrence may provide support for employers in district and appellate courts as they address lawsuits which invoke the Ricci decision.
Posts
No comments:
Post a Comment