Tuesday, October 6, 2009
The 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.