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Justices Rule for White Firemen In Bias Lawsuit
Sotomayor's Decision Is Overturned

By Robert Barnes
Washington Post Staff Writer
Tuesday, June 30, 2009

The Supreme Court yesterday restricted how far employers may go in considering race in hiring and promotion decisions, a ruling that puts workplaces across the nation on notice that efforts to combat potential discrimination against one group can amount to actual discrimination against another.

The court ruled for white firefighters in New Haven, Conn., who said city officials violated their rights when it threw out the results of a promotions test on which few minorities scored well. The case drew outsize attention because President Obama's nominee for the high court, Judge Sonia Sotomayor, had been part of a unanimous panel on the U.S. Court of Appeals for the 2nd Circuit that endorsed a lower-court ruling upholding New Haven's decision.

The case was a victory for conservative groups and the firefighters, who said the city's resolution had amounted to denying promotions based on skin color. The court's conservatives prevailed in a decision that said employers needed a "strong basis in evidence" that a test is deficient before discarding the results, rather than just "raw racial statistics" that may indicate a subtle discrimination.

"No individual should face workplace discrimination based on race," Justice Anthony M. Kennedy wrote for the five-member majority.

Civil rights groups said the decision would create a hurdle for employers, especially in the public sector, seeking to diversify their workforces without violating the law.

The case has been used by Sotomayor critics as evidence that she allowed her personal preferences to influence her rulings, while her supporters said the decision was a straightforward application of court precedents.

In the end, neither side conceded any ground over what yesterday's ruling indicated about Sotomayor's fitness for the high court.

Her supporters noted the closeness of the vote and pointed to the opinion's wording that yesterday's decision "clarifies" how the courts and employers should interpret Title VII of the Civil Rights Act. That indicates Sotomayor and the other judges on the appellate panel were simply following precedent in the 2008 decision, her backers said. "She doesn't legislate from the bench," said White House press secretary Robert Gibbs.

Those who oppose Sotomayor contrasted the court's 89 pages of opinions, concurrences and dissents with the 134-word summary judgment from Sotomayor and the other judges on the panel. Sen. John Cornyn (R-Tex.), a member of the Senate Judiciary Committee, called the Supreme Court's decision a "victory for evenhanded application of the law" and said that "all nine justices were critical of the trial court opinion that Judge Sotomayor endorsed," an assertion the White House rejected.

Although both sides searched for references that might be used for and against Sotomayor, the ruling was more revealing for what it said about a court still closely divided about government policies involving race and diversity.

The decision tried to find the spot between what can be seen as competing provisions of Title VII -- which says that individuals may not be treated differently because of their race, religion or sex, but also that seemingly neutral testing requirements can be discriminatory if they have a disparate impact on members of one group.

New Haven officials said they found themselves in a difficult position when the test results showed that no African Americans and only two Hispanics would have been eligible for promotion to the ranks of lieutenant and captain. City officials said they feared a lawsuit.

Kennedy said that was not a good enough reason to dismiss the test results. "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," he wrote.

Kennedy said that New Haven's test -- 60 percent of the firefighters' scores were based on a written test and 40 percent on interviews -- properly evaluated what candidates would need to know to perform their jobs, and that it was equally applied to candidates of all races and ethnic backgrounds.

"The process was open and fair," he said. "The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the city's refusal to certify the results."

Kennedy wrote for Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

Justice Ruth Bader Ginsburg, reading her dissent from the bench for emphasis, said the firefighters who brought the suit "understandably attract the court's empathy." But she said the majority decision undermines Title VII.

"Congress and, until the decision just announced, this court regarded Title VII's dual prescriptions on intentional discrimination and disparate impact as complementary," Ginsburg said. "Standing on equal footing, both provisions aim to end workplace discrimination and promote genuinely equal opportunity."

Both sides delved deep into the record of New Haven's decision and found contradictory lessons. Ginsburg said the city's decision must be seen in context: "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow," she said.

Writing for liberals John Paul Stevens, Stephen G. Breyer and, on his last day on the bench, retiring Justice David H. Souter, Ginsburg said New Haven had "ample cause to believe its selection process was flawed and not justified by business necessity."

But Alito, in a concurring opinion with the majority, said the city's decision was driven more by racial politics than any legitimate concerns about the test. He said the plaintiffs do not demand "sympathy" but "evenhanded enforcement of the law -- of Title VII's prohibition against discrimination based on race."

Yesterday's opinion does not forbid employers from factoring in disparate impact or considering race in the makeup of their workforces, and it avoided questions about whether parts of the Civil Rights Act violate constitutional protections of equal protection.

But Scalia wrote: "The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how -- and on what terms -- to make peace between them."

The case is Ricci v. DeStefano.

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