Monday, December 15, 2008
I've blogged a couple of times about Ricci v. DeStefano, a Second Circuit case involving promotions in the New Haven, Connecticut fire department (see here and here). The Department had instituted a new procedure for promotions involving a written test, which would count for 60% and an oral test, which would count for 40% of the score. After the test was administered, nearly all of the top scorers, those who would be likely to get promoted, among those who passed were white. This result was different from the results in prior promotion processes. The City's General Counsel notified the City's Civil Service Board that the use of the scores (at least at the weights each piece was given) might have a disparate impact on applicants of color. He asked the CSB to hold hearings on the test's validity and job relatedness and determine whether there were other methods of promotion that could find the best people but not have a disparate impact on groups of color.
The CSB decided not to certify the results after several days of hearing, and the plaintiffs brought this suit alleging that the decision to not certify the results was race discrimination (disparate treatment). The Second Circuit affirmed per curiam, and that court voted sua sponte on whether to rehear the case. The denial of rehearing was a close vote, with several interesting dissents and a couple of concurrences.
The plaintiffs filed a petition for cert this summer, and the defendants filed their opposition to cert in mid-November. The case was scheduled for conference this last Friday, but the Court did not act on it, which suggests to me that at least a few of the justices are considering granting cert. The Court's next conference is scheduled for January 9.
This case is a very important one, but a really difficult one, too, that goes to the heart of our notions of discrimination and the meaning of Title VII. Essentially, this brings up the usual debate about whether affirmative action is race discrimination, and if so, whether it should be illegal. But this case adds a wrinkle that brings the whole system of Title VII into doubt. Here, the City argues that it believed in good faith that the promotion process would violate Title VII by creating a disparate impact. The plaintiffs dispute that, saying that the City was motivated by politics and race, but they further argue that even if the City did in good faith believe that it was avoiding a disparate impact claim, that should be no defense to a disparate treatment claim.
So, is a decision not to create a disparate impact really race discrimination in disguise? I think the answer to that is complicated. Every decision not to use a particular criteria because it has an impact on a particular group is necessarily considering that group's status. So in one sense, yes, there is a consideration of status in there somewhere. On the other hand, does that mean that employers must continue to use criteria that they know have a disparate impact unless that use is challenged and a court validates some other criterion? That seems an odd result.
The City is in a very difficult position here if these two doctrines really do clash in this way. How can an employer ever be sure that it is not running afoul of Title VII? This clash has even greater potential for difficulties in the public sector. It's not entirely clear whether Title VII embodies the same limitations on race classifications for affirmative action as does the Equal Protection clause, nor is it clear that all distinctions on the basis of race (think so-called reverse discrimination) should be treated like classifications of persons traditionally underrepresented in the workplace. Public employers are bound both by the strict limitations of the Equal Protection clause and by Title VII. If disparate treatment and disparate impact theories really clash in this way, public employers are particularly at risk.
Stuart Taylor at the National Journal Magazine has an essay (hat tip Randy Enochs and Paul Secunda) on why the Court should grant cert, essentially arguing that the decision, and subsequent results in court, have been politically motivated, and that the Supreme Court should make clear that racial politics cannot be used "to violate the civil rights of working-class and middle-class white, Asian, and (at least in this case) Hispanic Americans."
I don't know that the Court is very likely to follow that advice, however. For one thing, I think the case is simply too complex and the issues too controversial. The Court may want some further percolation in the circuits to define the issues more clearly. For another thing, I'm not sure that this case really sets up the issue the way that those supporting these plaintiffs really want. This isn't a situation in which the pass rate is alleged to have a disparate impact--rather several applicants of color passed. So there were a number of qualified minority candidates. They just had lower scores, which meant that the system of how the test results would be interpreted and the limited number of available slots would keep them from being promoted to positions they were qualified for. Finally, I doubt the Court is going to feel strongly about putting public employers in this awkward position of having to decide between committing disparate impact discrimination or disparate treatment discrimination. We'll see next month.