Monday, June 29, 2009

Ricci Firefighters Race Discrimination Case: Preliminary Analysis

In a 5-4 decision, with the Court's opinion authored by Kennedy, the majority concludes that the city of New Haven violated Title VII, reversing the Second Circuit. 

Weighing in at 93 pages, the opinion is available as pdf here.

Here is the split amongst the Justices:

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.  ALITO, 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 Court's majority opinion avoided the equal protection challenge, but the Court does seem to look to equal protection doctrine for guidance.  The Court's syllabus explains:

The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause.  Such cases can provide helpful guidance in this statutory context.  See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993.  In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary.  Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other.  476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid.  The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions.

Ginsburg, dissenting, views the importance of the Equal Protection Clause differently:

In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Equal Protection Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact component. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 272 (1979); Washington v. Davis, 426 U. S. 229, 239 (1976). Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today, cf. ante, at 25; ante, p. 1 (SCALIA, J., concurring), this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason.

Dissenting Opinion at 21.

The Court's opinion was eagerly anticipated, not only because of the important issue of the intersection between Title VII and the Equal Protection Clause, especially when race discrimination is raised by white plaintiffs, but because Sonia Sotomayor is one of the authors of the opinion below.

As a reminder, the Second Circuit opinion was a per curiam opinion signed by Rosemary S. Pooler, Robert D. Sack and Sonia Sotomayor, and is typically (for per curiam opinions) succinct:

Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 554 F.Supp.2d 142, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn. Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.


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