The Fine Line of Anti-Bias Law

By Ruth Marcus
Wednesday, June 10, 2009

The rap on Supreme Court nominee Sonia Sotomayor's ruling in the New Haven firefighters case is that she supposedly looked at the race of the parties and chose sides. The reality is a lot more complicated than the cries of "quota queen" acknowledge.

Ricci v. DeStefano is the proverbial hard case -- and maybe Sotomayor and her colleagues made bad law in denying white firefighters the promotions for which they had qualified based on test scores. We'll find out soon enough when the Supreme Court rules.

But if the appeals court got it wrong, the more accurate explanation may be found in the intricate minuet dictated by federal anti-discrimination law.

I think the appeals court should have ruled slightly differently, and I agree with Sotomayor's appeals court colleague, José Cabranes, that the dispute was important enough to merit more than the brief paragraph with which the three-judge panel dispatched the white firefighters' claims.

But here's the conundrum the judges faced -- and the fact that the full appeals court split 7-6 in declining to review the ruling gives a hint of its difficulty:

Under federal anti-discrimination law, employers (here, the city of New Haven) can be found liable for discrimination even in the absence of evidence that they intended to discriminate. If an employment practice (here, a test) appears neutral but has a "disparate impact" on minorities -- if it is "fair in form, but discriminatory in operation," in the words of a 1971 Supreme Court ruling -- the employer must justify the need for the practice. (Chief Justice Warren Burger wrote for a unanimous court.) Even then, the employer could be subject to liability if there is a less problematic alternative.

It seems odd to penalize employers without proof of discriminatory intent, but the theory behind disparate impact is that it serves to root out hidden or inadvertent bias. In any event, you can disagree with this approach -- but it's the law, and Congress has since acted to codify and strengthen disparate-impact analysis.

Federal guidelines warn employers that if they use a test that produces a serious adverse impact on minorities, their use of the results in hiring and promotion will be considered discriminatory unless they recheck the test's validity. In addition, employers are encouraged to comply voluntarily with anti-discrimination law rather than risk being sued.

Fast-forward to the New Haven case. Black firefighters' pass rate for the exam was half that of whites -- a severe disparate impact. The city refused to grant promotions based on the test because, it said, it feared a disparate-impact lawsuit: No blacks scored high enough to be eligible for promotions. Instead, it was sued by disappointed white firefighters who argue the city violated federal anti-discrimination law and the constitutional guarantee of equal protection by taking race into account in discarding the test results.

My initial reaction -- my heart, really -- was strongly on the side of the white firefighters. Indeed, it's difficult to imagine a more sympathetic plaintiff than Frank Ricci, a dyslexic who paid extra for tutoring, spent months preparing, scored well and was denied the promotion he earned.

But the more I looked at the law on disparate impact, the more, well, empathy I had for the decision by the trial judge and the appeals court to rule the other way.

The paradox at the heart of Ricci v. DeStefano is that federal anti-discrimination law requires employers to examine the racial implications of their hiring and promotion procedures. Yet the law and the Constitution could also expose them to a claim of intentional discrimination if they view results through a racial lens and take action accordingly.

The world has changed remarkably, and for the better, since the advent of disparate-impact analysis nearly four decades ago. Minorities are far more likely to exercise the levers of political power, which is why I think the panel should have ruled differently and sent the case back for further review, as the Obama Justice Department has urged. There is some evidence that New Haven's claimed fear of a lawsuit was mere pretext and that what was really going on here was racial politics -- city officials protecting themselves with minority constituents.

Frank Ricci deserved to have that claim examined more carefully before having his hard-earned promotion summarily set aside. But Sonia Sotomayor deserves to have her position examined more carefully than it has been by those who would use it to block her own promotion.

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