Tuesday, June 30, 2009
THE SUPREME COURT yesterday preserved -- for the moment -- an important provision of civil rights law, made it more difficult for employers to uphold that provision and concocted a standard never before applied in such cases. Most disappointing, the court took all these steps even though it did not have before it a fully developed record of the facts.
The court split 5 to 4 in Ricci v. DeStefano, a closely watched racial discrimination case that arose in 2003 in New Haven when no African American firefighters qualified for promotion on the basis of written and oral exams. After seeing such a lopsided result, the city -- as it was obligated to do by Title VII of the Civil Rights Act of 1964 -- reassessed the fairness of the test under the act's "disparate impact" provision, which prohibits even neutral employer acts if they have a discriminatory effect minorities that cannot be justified by a legitimate business purpose. The city held public hearings in which it heard from white and minority firefighters, testing experts and community members; a city board ultimately declined to certify the test, in part because of questions about whether it was irrevocably and discriminatorily flawed.
White firefighters who would have been promoted sued the city, saying it had engaged in reverse discrimination. They lost in the federal trial court, which concluded that the city properly followed civil rights law. The court, however, ruled at such an early stage in the proceedings that neither side was allowed to gather more evidence to bolster its claims. Judge Sonia Sotomayor, President Obama's nominee to the Supreme Court, sat on a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit that affirmed the lower court ruling.
We had urged the justices to send the case back to the trial court to determine, once and for all, whether New Haven was right in concluding the test was discriminatory and unusable. Instead, the conservative majority, led by Justice Anthony M. Kennedy, slapped down New Haven's actions and created a new legal standard for Title VII cases that makes it harder for other employers to justify throwing out suspicious test results. The court also concluded that New Haven had not met this tougher standard -- even though the standard did not exist at the time the city was making its determinations. The court declined to allow the city to return to the trial court to see whether it could justify its actions under the new legal regime. A small consolation: The majority did not invalidate Title VII's "disparate impact" provision altogether.
Racial discrimination is wrong whether the victims are white, black or of any other race. But the justices acted too soon and assumed too much, and in the process unjustifiably chipped away at a law meant to protect against unfairness.