Tuesday, October 6, 2009

Ricci Discussion on the Empdiscr Listserv

361px-BigRedSmile_A_new_Computer.svgThe Employment Discrimination Listserv has been buzzing lately with lots of debate on what the state of the law is now, after the Court's decision in Ricci v. DeStefano earlier this summer. Much of the debate centered around what is required now to prove discrimination, and really what the definition of discrimination is.

Whither intent? A large part of the debate focused on the intent requirement of disparate treatment. On the one hand, it seems, as Mike Zimmer noted here earlier, as if knowledge alone of the racial distribution of the test was enough for the Court to label the city's action discrimination. Knowledge alone has never before been enough to for an adverse action to constitute discrimination. In the words of the Supreme Court, the defendant must act "because of" the plaintiff's status, "not despite" it. The problem here seems to be the logical leap that the majority opinion makes between the City's knowledge of the racial results--poorer scores than chance would predict for the African American and Hispanic firefighters--and the conclusion that the sole reason the City did not certify the results was because the successful candidates were primarily white. The majority seems to have done this calculation: knowledge of racial results + decision to throw out test = explicit racial motive for throwing out the test. There does seem to be something missing there.

At the same time, the City's decision not to use the test was caused by the racial outcome of the test. Had each group received passing scores at the same rate, the City would not have (presumably) thrown out the test. So race played a role here. So another line of analysis follows the thoughts of Kerri Stone, noted here, on transferred intent. The City wanted to spare the African American and Hispanic firefighters the consequences of the test results, and so to the extent that the City was motivated by race, the race that was considered was not the race of the plaintiffs. So does this mean that any time an employee is injured by an employer decision motivated by someone else's protected status (even where this employee doesn't share that status), will this employee have a cause of action? There are probably situations we could posit where we would say yes to that. For example, if a person is hired only because he or she is white, normally we would say that equally qualified people of color passed over were discriminated against. We could also posit situations in which we would be more likely to say no. For example, if a person subject to quid pro quo sexual harassment by a supervisor who has sexual relationships with only one sex (sleep with me for that promotion) gets a benefit (the promotion), can someone of the opposite sex sue because they didn't have the opportunity to provide the sexual favor and get the benefit? We're probably less comfortable with that scenario. And in Ricci, it's all the more complicated by the fact that if you consider winners and losers of the City's decision to throw out the test, you have white and Hispanic firefighters on both sides. Usually, if some members of the group are both winners and losers (think women in the pregnancy context--pregnant women v. non-pregnant persons), usually the courts find no discrimination on the basis of that group status.

Whither the African American firefighters? Another line of debate focused on what happens with the African American firefighters now, particularly their potential disparate impact claim. As a matter of preclusion law, they should not be barred by the Court's decision from bringing their claim. They weren't parties, and they never got the chance to prove that the process as a whole had a disparate impact and to make the City prove that the process was sufficiently job-related or to themselves prove that there was an alternative that wouldn't have the same impact. But the Civil Rights Act of 1991 provided that parties not represented but whose legal interests might be affected by a court decision or consent decree may not challenge the decision or decree if another party with substantially similar interests on the same facts used essentially the same arguments these parties would have. In other words, the City's defense of its actions may be close enough to what the African American firefighters would have argued had they been parties to the case that they may be barred from bringing a subsequent action to challenge the use of this test.

Another concern was whether by focusing almost exclusively on job relatedness the Court has discarded a disparate impact plaintiff's opportunity to prove that there are less discriminatory alternatives.

Broad or narrow? The last main point of discussion was what impact this case is really going to have. The majority at least attempted to cabin its decision by focusing on the expectation interests of these firefighters. In other words, the majority said that the decision only applies where an employer has announced criteria for hiring or promotion, but then changes mid-stream. If that is true, then an employer deciding on a process still has substantial leeway to choose among options and may choose a process that does as little harm as possible to any particular racial group as long as that process does not itself focus on race but even if that process is not perfectly job-related.

My takeaway, for what it's worth. While we're all trying to figure out what this case means going forward, I don't think that the majority of the Court thought about these issues with anywhere near as much nuance. It seems that Justice Kennedy worked fairly hard to write the opinion as if the effect of this case was limited to a situation in which the process had been announced and then changed midstream after all of the applicants performed. And, honestly, I think the majority had a very simple view of human motivation and the state of the average workplace, particularly a political workplace, in this country. This is the scenario (a fictional oversimplification) that I think the Court had in mind in deciding this case:

1. Written tests are good and objectively and accurately measure merit--to the point that a person who scores a 93.02 will clearly be more qualified than a person who scores a 93.01.
2. This test was carefully designed by experts.
2. The people who passed worked really hard to pass.
3. The city's attorney saw the results and essentially this dialogue happened:
City Attorney: Oh Crap! Too many white people and not enough people of color passed this exam. We can't promote this many white people. We'll get sued.
Mayor: I agree. We can't promote this many white people. We'll get sued.
City Activist: You can't promote all of these white people.
Two Board members: The test was fine. Let them sue us. The testing company has to foot the bill: certify.
Two Board members: We can't promote this many white people: don't certify.

Given this simplified view, it was easy to say that the city's action was discrimination.Those of us who think about this all the time see the underlying record as much more complicated. And where things are complicated, we naturally want to create coherence.

I apologize to the participants in the discussion if I've overlooked or mischaracterized contributions to the debate. I'd welcome corrections, additional thoughts, and more discussion in the comments. And if you feel left out because you're not on the listserv but you teach courses in the area and want to be, contact our own Paul Secunda--he's the manager.



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Thanks for summarizing this very interesting discussion.

Posted by: Joseph Slater | Oct 7, 2009 7:44:10 AM

The problem with MM's analysis is that she is ignorant of the claims, litigations and judgments against New Haven in civil actions by whites that preceded the Ricci dispute. An example is MM's somewhat sarcastic account of the view that one who scores 93.02 is, under the testing regime, considered more qualified than someone who scored 93.01. First, fractional distinctions are not that close. Second, the very reason for strick rank ordered selection is the city's (and all cities') history of graft, corruption, bribery and blatant discrimination when selection discretion is increased. Before it was permanently enjoined from its lawbreaking by the CT Supreme Court, New Haven was in fact "banding" together candidates with close scores, and using that s a means to pass over (i.e, discriminate against) whites in favor of otherwise lower ranked blacks. Then of course by allowing city officials to dispense with rank ordered selection means the inevitable "payments" to city officials - that is, the buying of jobs and promotions. Strict compliance with race-neutral rank ordered selection means that if a black person is a top ranked candidate, a racist city official cannot skip him over to select his white friend or relative, and vice versa. But unfortunately, the ignorance of many professors and academics to the realities of the civil service leads them to the wrong analyses and conclusions.

Posted by: Cas | Oct 7, 2009 12:02:05 PM

Actually, I'm familiar with many of the other suits against the city and the litigation in other cities related to civil service (as a former civil servant myself), but the point that these civil service rules serve as a valuable check against discrimination, favoritism, and corruption is a valuable one. The opportunity to discriminate exists wherever discretion exists, and civil service rules like this are usually designed to remove that opportunity, at least in part. In that way, many more people have opportunities to serve than would if the rules didn't exist. But even where the motive for creating civil service rules is to prevent discrimination, those rules can still be discriminatory in effect, and that also violates Title VII. Essentially what this case comes down to seems to be a disbelief on the part of the majority, one I sense that you share, that the City was really concerned that the civil service rules had a discriminatory effect on the firefighters of color and that instead the CSB, Ude (the city's attorney), and Mayor Stefano just came up with that excuse to avoid the political heat they would face if they certified the test.

And the fractional distinctions between scores for the ranking may not have come down to a single hundredth of a point, but they did come down to tenths of a point. That's part of the record in this case. So the court that issued the banding decision was essentially saying that someone who scores a 93.0 is clearly better than someone who scores a 92.9. If you can't round, those tenths of a percentage must matter. And I do take issue with that assumption (although I hadn't intended to be sarcastic)--that we can accurately measure merit at the margins that way.

Posted by: Marcia | Oct 7, 2009 1:03:33 PM

The CT Supreme Court, in striking down as illegal New Haven's banding of scores, did NOT find or opine that a candidate who is a fraction of a score point above another is a better or more qualified candidate. What the Court held is that the law requiring rank order system within the "Rule of Three" was designed to stem the ills and corruption of the spoils system and prevent the very type of race discrimination those plaintiffs had complained of. New Haven wanted to evade the Rule of Three so it could continue, intentionally (as it had in the past) to engage in racially discriminatory promotions and hiring. Thus New Haven's all-of-a-sudden resort to Title VII and its disparate impact doctrine was in fact a farce, designed to try to use federal law to override the CT Supreme Court's ruling which put an end to that corruption and racial favoritism. New Haven was rejecting or passsing over highly qualified, degreed and experienced white officers in favor of undeducated, inexperienced and blatantly unqualified blacks, in some cases passing over medal and award winners in favor of low-scoring blacks with arrest records. It was a sewer of race politics and Ricci put an end to it. Arm chair academics have no clue what was going on in New Haven or how the public has suffered for it.

Posted by: Cas | Oct 7, 2009 7:45:03 PM

MM says: "... I do take issue with that assumption ...that we can accurately measure merit at the margins that way." In response, I say that this is exactly what we do in society and in schools at all levels, from elementary all the way to law school, in determining class rank. The class valedictorian may be a fraction of a grade point above the #2 student. The "Number One" in his law school class might also be just a hair of a GPA above the #2. States admit to the bar one who achieves the bare minimum bar exam score and refuse admission to another who scored but one point below him. Hell, we give the prize to the runner who edges out the others in a race and the roses to the horse who wins by a nose. That is competition MM - that is America. We don't take away the trophy to the winner because those who lost are people we wanted to see win. Indeed, the Rule of Three in New Haven (a rule used by many other cities) compromises that principle a bit to allow for some limited appointing discretion. Thus, for one vacancy, the appointing authority can choose from among the top three scorers, and, in making the selection, can look at things other than test score, including seniority, job performance, attendance, awards and medals, educational degrees, and character - that is, the extent to which the candidate is respected and held in high regard in the workplace. The rules of the game are strictly race-neutral and it is not "discriminatory" to enforce those rules. You discriminate when you don't enforce those rules. That's what Ricci stood for. It is sheer nonsense to suggest that if a failing or barely passing black candidate (with no diplomas and no credentials) loses a promotion to a white guy who expectedly scores #1 on the Captain's exam (because he has multiple degrees, certificates, is a paramedic, fire instructor, and a serious student of fire science and first response tactical protocols) that "race" discrimination has occurred. In academe, you folks may think it is okay to hire a marginal candidate for a faculty position over a more highly credentialed and smarter person for the sake of "diversity," - you can't kill anyone by your negligence - but it is outrageous and the height of elitist arrogance to impose that PC on firefighters whose safety and lives liberals continue to play with.

Posted by: Cas | Oct 8, 2009 6:27:05 AM

Cas articulates exceedingly well the unsustainable short view.

Posted by: Michael Duff | Oct 8, 2009 7:18:06 AM

Actually, Mr. Duff, it is MM who articulates the short (or should one say, sanitized) view, presenting the case in the most sterile terms, and casting the employer for the most part as an innocent victim of a catch-22, when in fact the ugly, dirty, corrupt backstory to that sterilized version is what Ricci is really about, and what Justice Alito ably understood.

Posted by: Cas | Oct 9, 2009 2:27:13 PM

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