Thursday, July 16, 2009

Frank Ricci gets him some empathy

The case of Ricci v. DeStefano is getting some play today in the hearings on the nomination of Sonia Sotomayor to sit on the Supreme Court. It beggars the imagination to watch the Republican senators, who have been wailing all week about Sotomayor’s empathy and her “wise Latina” remark then complain about the decision in the Ricci case because it discriminated in favor of blacks. But in addition to Frank Ricci, who were the plaintiffs in the case? According to the linked New York Times article:

The New Haven case, in which a group of white and Hispanic firefighters sued the city after the results of a promotional exam were thrown out because black firefighters did not fare well, has emerged as one of the most contentious issues in the hearings.

If she was such a Hispanic homer, wouldn’t she have voted the other way? Let’s see if any of the bright lights on the Democratic side of the committee figure this out.

In the meantime, let Spot quote from Stanford Law Professor Richard Thompson Ford in Slate, commenting on the case before the decision was accounted by the current Supreme Court reversing the 2nd Circuit panel that Judge Sotomayor was on:

New Haven's decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that's inadvertent as well as intentional. Ricci's claim is that the city's effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).

This argument would undermine an important part of modern civil rights law. Some of Sotomayor's critics argue that, in the era of Obama, we no longer need such proactive policies to promote racial equality. But racism isn't a thing of the past yet. In fact, we haven't corrected the lingering effects of racism that is in the past. It's precisely because overt racism is no longer the main impediment to racial equality that the law against inadvertent discrimination is arguably now the most important part of civil rights law.

The professor tells about the two ways to violate Title VII:

There are two ways an employer can discriminate according to Title VII. He can intentionally discriminate by making race a factor in employment decisions—choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact—in other words, that screens out a particular group for no good reason. New Haven claims that the test it tossed out had a disparate impact. Eight black, 25 white, and eight Hispanic firefighters took New Haven's test for promotion to captain; three black, 16 white, and three Hispanic candidates passed. Nineteen black, 43 white, and 15 Hispanic firefighters took the test to become lieutenant; six black, 25 white, and three Hispanic candidates passed. This result counts as discriminatory under the rules of the Equal Employment Opportunity Commission. New Haven was right to worry about the possibility of a lawsuit from black firefighters if it accepted the results of the tests.

But not only that:

The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam—no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test. More reason for the city to worry about a lawsuit by the African-Americans who were to be passed over.

As Spot has written before — but won’t bother to link to, because this is a better explanation — the city of New Haven was damned if it did, and damned if it didn’t. But conservatives want to portray the decision as a hideous mistreatment of white people by Sonia Sotomayor. But come on, people, even the sitting Justices in Ricci were split:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined.  SCALIA, J., filed a concurring opinion.  A LITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined.  GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

The decision in Ricci does take a big chunk our of disparate impact jurisprudence under Title VII:

But, properly applied, disparate impact law doesn't excuse poor performance, nor does it require quotas. Instead it smokes out hidden bigotry and requires employers to avoid unnecessary segregation of the work force. Suppose an employer wants to keep women out. Knowing that he can't just put a "women need not apply" sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias. Now, suppose an employer has no desire to discriminate against women but uses a weightlifting test simply because he thinks, all other things equal, stronger employees are better than weaker ones. Disparate impact law also prohibits this: It requires the employer to reconsider job qualifications that favor one race or sex, unjustifiably.

Of course, there might be a good reason to prefer people who are physically stronger—or who score higher on a written exam. The law gives employers a chance to prove that the discriminatory criteria are job-related. The idea, then, isn't to make an employer hire less qualified women or minorities over more qualified men or whites. It's to make sure the employer is testing for job qualifications, not unrelated ones.

That’s why the city of New Haven threw out the test; it was not clear that is actually picked the best people for promotion, and it had a disparate effect on minorities. And very importantly, it didn’t mean that Frank Ricci was passed over for promotion; he could still be considered under new, presumably fairer, criteria. What’s so bad about that?

No comments: