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Ricci’s Not Over

Jonathan H. Adler • November 17, 2009 10:46 pm

The Supreme Court’s decision in Ricc v. DeStefano did not put an end to litigation over the New Haven Fire Department’s use of tests for firefighter promotions.  One black firefighter, Michael Briscoe, has filed a disparate impact suit against the city (more here), and other black firefighters have sought to intervene in Ricci on remand.  As Daniel Schwartz notes on the Connecticut Employment Law Blog, these claims are likely to face tough sledding. Stay tuned.

Categories: Civil Rights    

    19 Comments

    1. Mike says:

      Disparate impact itself violates Title VII. “We can’t use this procedure because it would lead to too many blacks being fired” is itself a justification for intentionally treating blacks differently from other racial groups.

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      November 17, 2009, 11:07 pm

    2. Me says:

      Richard Thompson Ford has also posted on this at Slate.

      http://www.slate.com/id/2233155/

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      November 17, 2009, 11:08 pm

    3. Me says:

      The prioritizing of disparate impact liability (DIL) and disparate treatment liability (DTL) under Title VII is the central question of Ricci, and the Supreme Court utterly failed to set its priorities.
      In order to understand the need for prioritizing these two mandates, we should think about them in terms of their real-life manifestations. DIL is almost always represented by a written test: SAT, LSAT, MCAT, Fire Captain Exam. All of these are tests that are likely produce DIL. On the other hand, DTL is almost always manifested through the subjective judgments of a superior or other person in a position to make an adverse employment decision. A white boss preferring a white candidate for unarticulated and highly subjective reasons is the manifestation of DTL.
      In the Ricci opinion, the DTL option was an assessment center where all of the candidates would go and be appraised by the experts at the center without the aid of written exams. This seems to be fair, but it is only a matter of time before a white fire-fighter brings a lawsuit alleging DTL at one of the training centers.
      So, it seems that the court must prioritize the two conflicting mandates. At the moment, an employer cannot hope to escape DTL without incurring DIL, and vice versa. This point is driven home by the most recent developments in New Haven, where a black fire-fighter is now bringing suit alleging DTL.
      DTL is old fashioned racism, but white people plaintiffs will use it the same way black plaintiffs did in past decades. DTL can be employed by white plaintiffs in the same way it can be employed by black plaintiffs. Therefore it may end up being fairly race neutral in the end. However DIL is designed to stamp out the vestiges of racism in our society. It is supposed to get rid of tests that inadvertently discriminate on the basis of race. It has the real purpose recognizing where society inadvertently discriminates against black people and then rectifying that mistaken practice.
      Therefore the court needs to decide whether the priority of Title VII is to move to a race-blind society, or whether the priority of Title VII is to rectify past wrongs which are attributable to racism. If the purpose of Title VII is to create a race-blind society, then DTL should be the priority and DIL should be allowed to occur. Give everyone the same tests, regardless of the results, and take subjectivity out of the decision making process altogether. However, if the priority is to rectify past wrongs, then DIL should be the priority, and DTL should be allowed as long as white people are being discriminated against. This sounds bad, but it would actually be very fair in application; think back to the assessment centers that the Court very nearly recommended in Ricci. The assessors at the assessment centers would intuitively take race into account when making their hiring recommendations to the fire department.
      Some will argue that the assessment centers do not take race into account, that they just provide a better test that is more based on the practical skills a fire fighter will use. This argument is a cover for the inherent subjectivity of the assessment centers, and the ability of the assessors to make adjustments to the assessments and to their own evaluations as the assessment is progressing. The centers allow for the appraisal of a far greater array of the candidate’s attributes, one among which is the candidate’s race.
      Ultimately Ricci shows exactly why the Court needs to decide whether the purpose of Title VII is the creation of a race-blind society or whether it is to rectify the centuries of mistreatment of black people at the hands of white people.

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      November 17, 2009, 11:11 pm

    4. Dan Schwartz says:

      Thanks for the cite. Appreciate it.

      Things are getting even more interesting because a group of other black firefighters just filed a motion to intervene yesterday.

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      November 17, 2009, 11:43 pm

    5. Oren says:

      Ultimately Ricci shows exactly why the Court needs to decide whether the purpose of Title VII is the creation of a race-blind society or whether it is to rectify the centuries of mistreatment of black people at the hands of white people.

      What if (Congress determined that) remedial measures are necessary to achieve a colorblind society?

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      November 17, 2009, 11:46 pm

    6. Cato The Elder says:

      From the complaint:

      Even after the examination was administered, the City failed to request the technical report that IOS had agreed to provide and that could have provided information about the disparate impact and validity of the 60 percent rule. 

      Remember, not validating the technical report was New Haven’s alibi to ensure it had plausible deniability in its scheme to cheat the white firefighters; by not taking any of the proactive steps available to it, the city believed it was free to argue in court that it was only innocently concerned that the test was defective, so could hence discard it. Ironic to see that the city’s deceitful actions gave the very party they were intended to help, the black firefighters, a claim upon which to sue it — the plaintiff argues that the city’s failure to validate per the standard procedure meant that it knowingly discriminated against him by adopting an “arbitrarily chosen” method of exam weighting. Hah!

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      November 17, 2009, 11:58 pm

    7. Brett Bellmore says:

      However, if the priority is to rectify past wrongs, then DIL should be the priority, and DTL should be allowed as long as white people are being discriminated against.

      “Rectifying past wrongs” by benefiting people who didn’t suffer the wrongs, at cost to people who didn’t commit them, is just a slogan. What we’re talking about is “committing present wrongs”.

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      November 18, 2009, 6:44 am

    8. Houston Lawyer says:

      It appears that any test conceivable that measures learning is going to have a disparate impact on the preferred minority groups. Consequently, the whole disparate impact line of reasoning is a joke.

      “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass–a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience–by experience.”

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      November 18, 2009, 8:40 am

    9. Eli Rabett says:

      Oren lays his hand on the issue

      What if (Congress determined that) remedial measures are necessary to achieve a colorblind society?

      Which is part of what Congress did decide in the 1960s. As Lyndon Johnson said, after beating up on people for 300 years, you suddenly decide to stop and expect equal outcomes, you are a fool, or a conservative, but Eli repeats himself.

      So rationally we have to ask ourselves have the wrongs of the past been remediated and do we have a level playing field. All the information we have says no, and we continually bring to light insidious practices (see the D. of Agriculture farm loans for example) on which to get any action requires decades of legal action, during which the wronged are deprived of their property and messed over continually.

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      November 18, 2009, 10:07 am

    10. Houston Lawyer says:

      Eli, the Supreme Court has clearly said that is it impermissable to punish people today based upon the color of their skin. Affirmative action has been in place for about 4 decades now, yet huge racial disparities continue to exist. But clearly, the means of helping the black man is to keep the white (or Asian) man down.

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      November 18, 2009, 10:38 am

    11. egd says:

      Oren: What if (Congress determined that) remedial measures are necessary to achieve a colorblind society?

      I don’t think this is a question that Congress can solve (which really shows the absurdity of our legal system).

      If Congress says remedial measures are necessary, the Court can either agree and defer to the will of Congress under the “vestiges and incidents of slavery” rationale (i.e. only black people get special treatment), or the court can disagree and reason that any preferential treatment on the basis of ethnicity violates equal protection.

      Either way, it’s the Court making the ultimate decision in the issue. Congress’s actions have little to do with it.

      If the Court really believed in the separation of powers, they would articulate clear lines for Congress, either Congress can decide these issues, or Congress cannot decide these issues. That way, every substantive piece of legislation out of Congress doesn’t end up at the SCOTUS at one time or another.

      That’s leaving aside (for now) the argument that disparate impact lawsuits have anything to do with either the vestiges or incidents of slavery.

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      November 18, 2009, 10:58 am

    12. Blue says:

      I appreciate your thoughtful writeup, Me, but I found this statement shocking:

      However, if the priority is to rectify past wrongs, then DIL should be the priority, and DTL should be allowed as long as white people are being discriminated against. This sounds bad, but it would actually be very fair in application

      How is any discrimination by race (or by any group attribute) “fair”? It may serve policy ends, it may be justifiable, but it cannot be “fair”!

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      November 18, 2009, 11:08 am

    13. Oren says:

      How is any discrimination by race (or by any group attribute) “fair”? It may serve policy ends, it may be justifiable, but it cannot be “fair”!

      Rectifying a manifest wrong, even to the detriment of the innocent, is at least plausibly fair. 

      Consider, for instance, an analogous personal hypothetical. Our common grandfather owned 100 acres of land and bequeathed it equally to his two sons (our respective fathers). By some unjust action, your father was only received 20 acres and my father received 80 acres (he wrote a phony will, he bribed the probate court, we need only agree that this division of land was unjust). Now, both of our parents had two children, one bequeathed to you and your brother 10 acres each and to myself and my brother 40 acres each. 

      I’m sure you see where this is going. In such a situation (if I were on the branch getting the short shrift), it would matter very little that the individual holding the land that is rightfully mine was personally innocent of wrongdoing. He might consider it unfair as a personal matter, but I don’t imagine it would move me much. I would likely consider it even more unfair, after a fashion, that the ancient wrong is being perpetuated under force of law.

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      November 18, 2009, 2:40 pm

    14. Blue says:

      Oren, the problem with that hypothetical is that my inferior status is directly related to a specific decision. That’s very different than preferences/penalties to all members of a group (e.g., my step-brother receiving AA preferences even though he immigrated to the US at 20 from West Africa).

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      November 18, 2009, 4:13 pm

    15. Oren says:

      Indeed it is a problem. It is hard to capture the essence of a complicated problem in a toy model. I meant only to illustrate what I believe is an intrinsic contradiction of the notion of universal fairness in the presence of historical wrong.

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      November 18, 2009, 4:50 pm

    16. Eli Rabett says:

      Houston Lawyer, as Oren points out reparations could do the job.

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      November 18, 2009, 9:08 pm

    17. Joseph Slater says:

      (1) Disparate impact theory is not affirmative action. It’s not discriminating against one group to help another. Rather, it’s another way to prove discrimination, in this case on the basis of race.

      (2) Excellent analysis of the current disparate impact issues in the New Haven fire fighters case by Mike Zimmer at Concurring Opinions here.

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      November 18, 2009, 9:47 pm

    18. Careless says:

      Eli Rabett: Houston Lawyer, as Oren points out reparations could do the job.

      And then you promise we’ll end affirmative action forever? A bargain for my descendants, not so much for me.

      (1) Disparate impact theory is not affirmative action. It’s not discriminating against one group to help another. Rather, it’s another way to prove discrimination, in this case on the basis of race.

      Yes, a way to prove discrimination that assumes discrimination. Disparate impact is a way to force affirmative action by eliminating objective tests.

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      November 18, 2009, 11:20 pm

    19. Oscar Marcelo Caruso says:

      I think we create more racism when we decide that Black People and Hispanics are dumber than white people.I mean, lets be honest and cut the LAW talk,these test are made saying that Whites have to score 90% or better,while blacks and hispanics can score 80%!! .If the arguments of Then Justice Sotomayor were true, then Asian-Americans would qualify under the law, and would not need to score as high as whites, even thought they usally score just as good or better, but are still the NEW real minorities!!In Los Angeles County Whites and Asian firefighters, have to take a back seat to less qualified minorities.Thats unfair and racist. The 1960’s are over now, Blacks and Hispanics are no longer minorities in the largests American cities.I myself was told that if applied for the LAPD, my score NOT need to be as high as White applicants. They read my application( OSCAR MARCELO CARUSO) and decided I was hispanic ‚even though Im AMERICAN born ‚of ITALIAN parents. The laws need changes, get with the times.

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      November 25, 2009, 6:37 pm

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