Friday, September 26, 2014
Must a court read Ricci v. DeStefano, 557 U.S. 557 (2009), to apply to Title VII challenges to affirmative action plans? That’s part of the fight in Shea v. Kerry, a case—now on appeal before the D.C. Circuit (No. 13-5153)—involving a Title VII challenge to the US State Department Foreign Service’s Mid-Level Affirmative Action Plan. (The briefs are in. Oral argument hasn’t yet been scheduled.)
In Ricci itself, the (mostly white) plaintiffs hadn’t challenged an affirmative action plan. Rather, they’d argued that their employer—the City of New Haven— had violated Title VII, section 703(a), by refusing to certify the results of promotion tests. Their employer argued that it had feared that, given the race disparity in those test results, certifying them would subject it to Title VII disparate-impact liability. In ruling that the plaintiffs deserved summary judgment, the Ricci Court described its holding this way: “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”
In Shea, the plaintiff is now represented by lawyers from the Pacific Legal Foundation (PLF). They read Ricci to have overruled United Steelworkers of America v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987)—the Supreme Court precedent on when Title VII permits employers making training, promotion, or other employment decisions to consider race or sex pursuant to valid affirmative action plans---and to place the burden on the State Department to justify its affirmative action plan under Ricci’s strong-basis-in-evidence standard. For support, they point to, among other things, Justice Ginsburg’s dissent in Ricci, and their conclusion that “[n]early all scholarship on Ricci's applicability” supports their reading (citing, as examples, Corrada (2011) and Harris & West-Faulcon (2010)).
In response, the State Department’s lawyers read Ricci to apply only “after an employer invalidates the selection that resulted from a ‘fair opportunity process.’” Ricci doesn’t apply, they argue, because the State Department neither invalidated the results of “an established testing process” nor made any “mid-stream change” to the mid-level placement criteria. Affirmative action plans—including the State Department’s plan—are “governed by Johnson and Weber,” not Ricci, because in adopting such plans, “the employer acts ex ante and ‘in the light of past discrimination,’ and ‘establishes hiring or promotion procedures designed to promote equal opportunity and eradicate future discrimination.’”
Among other replies, Shea’s lawyers criticize this view as “not useful”: Ricci “could just as easily be described as a forward-looking (ex ante) case. The City of New Haven threw out the test results in order to avoid a future disparate impact.” Besides, Ricci’s strong-basis-in-evidence standard “applies irrespective of whether an employer is ‘avoiding or remedying’ illegal conduct . . . ‘avoiding’ would be forward-looking (ex ante) and ‘remedying’ would be backward looking (ex post). Ricci applies to both.”
Which reading of Ricci will prevail? Which reading should prevail? Which reading(s) of Ricci did both sides miss? (Discuss!) In theory, lower courts aren’t supposed to treat US Supreme Court precedents (here, Weber and Johnson) as implicitly overruled (for discussion, see Shannon 2009). Accordingly, Shea’s PLF lawyers have also asked that if the DC Circuit feels bound to apply Johnson and Weber, that court should “invite” the US Supreme Court to review Johnson and Weber and to “clarify its decision in Ricci.”