Monday, June 29, 2009

Ricci Analysis Part 1

Scotus As a preliminary matter, I would welcome other people's thoughts on this case and the Court's decision. There's a lot there, and some of it, I confess, confuses me. There is so much to the opinion, in fact, that I've decided to break up the analysis. In this post, I'll analyze the majority's opinion alone, and try to tease out what it means for the parties and for employees and employers more generally. In future posts, I'll tackle Scalia's concurrence, suggesting that disparate impact legislation is unconstitutional. And in a third post, I'll tackle the Alito concurrence and Ginsburg dissent, although I may separate those out into separate posts.

The majority's legal analysis starts from this premise: The City chose not to certify the examination results because of the statistical disparity based on race, and that this was express race based decisionmaking which Title VII prohibits. Considering the race-based effects of the testing and rejecting the test on that ground was taking an adverse action because of an individual's race.

The second step in the analysis, which attempts to harmonize the conflict this premise sets up, is that good faith fear of a disparate impact lawsuit cannot be enough to justify acting because of an individual's race. That would allow employers to maintain some sort of racial quota or balance because it's too easy to claim and to difficult to disprove good faith belief.

In the third step, the majority looked to the affirmative action cases under the Equal Protection clause for an analogy, reasoning that affirmative action created the same kind of conflict in Equal Protection doctrine that this collision of disparate impact and disparate treatment created. Under the Equal Protection cases, a government employer can engage in race-based decisions where there is a strong basis in evidence that it is warranted to remedy past discrimination by that government employer.

So, the end result is a compromise: Once a hiring or promotional process has begun, an employer may not deviate from that process over concerns that the process discriminates unless there is a strong basis in evidence to believe that the practice would not survive a disparate impact lawsuit. Employers can act before there is a "provable, actual violation," but only if there is this strong basis in evidence to believe that there is a provable violation.

Importantly, there is no restriction on what employers can do to try to design a process for making employment decisions that are fair for all regardless of race before any process is put into effect. "But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race."

Applying the standard, the majority found that the City did not have a strong basis in evidence to believe that the test created an illegal disparate impact. The Court agreed that the results demonstrated a severe statistical disparate impact, which warranted the hearings the City held, but disagreed that there was any evidence:  1. that the test was not job related and consistent with a business necessity or 2. that there were other methods the city could have used that would have been just as legitimate without the disparate effect.

As a doctrinal matter, I think that the initial premise is troubling. To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs. It's also an implicit rejection of the basis for the Court's early decisions on Title VII, that discrimination in employment was common, that absent some other good explanation for an adverse action, discrimination was a reasonable explanation for it, and that without incentives, employers would not have to look critically at what was really required to perform a job and whether this individual could do that. Instead, they could rely on old proxies for fitness without examining them critically. Now it seems that the Court is concluding that discrimination is rare and assertions of discrimination are suspect, and that the continued lack of attainment by people of color (and women, likely) is because of limitations in those people, not obstacles in the system.

The result is also going to make it difficult for employers to navigate Title VII, although maybe not more than it was before this decision. Employers will likely do nothing to evaluate their hiring or promotional processes until those processes have run their courses. There is very little incentive for employers to try avoid disparate impact liability any more than they would have before this decision, and more incentive not to change anything, just in case that change is itself discrimination.

The majority insisted that this decision did not affect a decision by an employer to make changes to its hiring and promotional processes before beginning those processes, but if a desire to avoid discrimination is a discriminatory motive, then wouldn't creating a process designed to avoid racial effects also be intentional discrimination? That process is designed and implemented because of the races of applicants. Maybe the difference is that it doesn't consider any particular individual's race because there are no individual applicants until the process is begun.

The last piece of the opinion that I am continuing to puzzle over is the second to last paragraph, where the Court makes this cryptic (to me) statement, providing the City with a defense to the disparate impact lawsuit it was afraid of:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I'm not sure what to make of that statement, frankly. The City will be in a very different position defending a disparate impact lawsuit. For one thing, the job-relatedness and alternative process issues will be subject to a full evidentiary battle, and so as a factual matter the plaintiffs might succeed. Secondly, in some ways, disparate impact is harder to defend against because motive is irrelevant. The questions will simply boil down to whether there are equally valid less discriminatory alternatives. I don't understand how the City's inability to throw out the test will be a defense. And if it is, then when will there ever be disparate impact liability? There's no adverse action until the process has run its course (or at least begun). I understand that the African American firefighters are thinking seriously of filing their lawsuit now, so maybe this will wind its way back up and we can get an answer.

One thing is likely, this case is not over (unless there's some sort of miraculous settlement), and it won't be over for a long time.


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Seems to me that Title VII(2)(m) is important here: "Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."

If the City wanted to claim "potential discrimination" and use that as its reason to refuse to certify the results, then they needed to announce that BEFORE the results came in. Instead the City looked at the results of the promotion test and refused to certify them because they didn't like the racial mix. VII(2)(m) says you can't do that, even if your motivation is to avoid being sued!


Incidentally, I was wrong in an earlier comment; (2)(n)(1) protects New Haven from being sued when it certifies the test results and promotes the firefighters.


I would actually argue, though, that there's neither "disparate treatment" nor "disparate impact" in this case; there's a "racially-motivated unlawful employment practice", but it affects all employees equally (i.e. NOBODY got promoted.)

Posted by: DensityDuck | Jun 29, 2009 12:45:35 PM

I'm an engineer not a lawyer, but my gestalt on that second paragraph that I didn't understand either is saying: "if they get the strong evidence required to throw out the test and they get sued, then they will have the strong evidence needed to avoid liability."

Regarding the initial premise that you find troubling, I am not reading your excerpts or analysis (and nor has my reading of the opinion) in a way that meets your reading that "To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive".

I think it's more narrow. They are saying this particular *adverse action* was race based and wrong *without* further justification. But going from one hiring/promotion process to another hiring/promotion process at the beginning of the hiring/promotion cycle is not an adverse action. And presumably any company making such a change will have its consultants write up a memo as to why that change will provide a better, more qualified, group of candidates, and that's all the company needs to justify their actions.

What I get from the opinion is that the Court said, "You cannot change the rules in the middle of the game without good reason." And I thought that was trivially understood by all, especially in law, and especially dealing with contracts. I am puzzled that so many people seem to completely gloss over the part where New Haven did all this AFTER the fact and make it seem as though this will have a dramatic impact on how companies and government organizations develop rules and procedures for new hiring cycles.

The court said: No Calvin Ball

Posted by: jerry | Jun 29, 2009 7:04:04 PM

Here is a letter that I sent the NY Times: To the Editor: The world does not always see America as we see ourselves. At a professional conference in Amsterdam in Fall 2001, I was asked, by those who had watched television after 9/11, why the New York City Fire Department is still overwhelmingly white and male.

To the explanation I gave in 2001, I would now have to add: a Supreme Court that thinks its role is to preserve white privilege.

The Court pulled this precise stunt twenty years ago. It held that employers could use personnel devices with a disparate impact among races so long as these served some business function. This ruling lasted two years. Congress amended the Civil Rights Act to its present form, denying employers the privilege to use devices with discriminatory impact unless the employers can show, with evidence, that the device is a business necessity and that there exist no alternatives without the disparate impact. This was the statute that the Court ignored, as it conceded that the test had a disparate impact, and New Haven surely did not prove that there will no alternatives.

Congress, just as it did eighteen years ago, will amend the statute to disapprove the Court. Meanwhile, any black firefighter passed over for promotion should sue New Haven for discrimination. The black fire fighters were not a party to the case before the Court. At a trial with evidence, not just the facts assumed by the Court, it will be easy to show that the New Haven test violated the statute. The result may be chaotic, but it will be chaos created by a Court that prefers its fantasies to the statutes enacted by Congress.

Posted by: Alan Hyde | Jun 30, 2009 5:40:19 AM

Alan Hyde is correct, and I have no doubt a balanced crew of females on the NYFD would have been able to pull everyone out of the building.

Posted by: anon | Jun 30, 2009 8:49:10 PM

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