Wednesday, January 6, 2016
Since United Steelworkers of America v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987), judges have had Supreme Court precedent for reading Title VII’s section 703(a) (42 U.S.C. § 2000e-2(a)), to let employers, under certain circumstances, voluntarily consider race or sex pursuant to affirmative action plans when making training, promotion, or other employment decisions. These precedents are now a target of a recent cert. petition to the US Supreme Court. Shea v. Kerry involves a challenge under Title VII’s section 717 (42 U.S.C. § 2000e-16(a)) to the US State Department Foreign Service’s Mid-Level Affirmative Action Plan—and with that, whether Weber and Johnson survive Ricci v. Destefano, 557 U.S. 557 (2009).
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. The City 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 wrote: “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-—represented by lawyers from the Pacific Legal Foundation (PLF) —had argued for reading Ricci to overrule Weber and Johnson and to place the burden on the State Department to justify its affirmative action plan under Ricci’s strong-basis-in-evidence standard. (For details, see here). The D.C. Circuit disagreed. Unlike the employer in Ricci,
[t]he employers in Johnson and Weber did not modify the outcomes of personnel processes for the asserted purpose of avoiding disparate-impact liability under Title VII. Nor did the State Department here. The Department, like the employers in Johnson and Weber, instead acted to “expand[ ] job opportunities for minorities and women,” and to “eliminate traditional patterns of racial segregation.” Ricci does not purport to reach the Department's actions in pursuit of those purposes. Weber and Johnson therefore still control.
Shea v. Kelly, 796 F.3d 42, 55 (D.C. Cir. 2015) (citations omitted).
Now, in seeking cert., PLF offers, among other arguments, that the D.C. Circuit’s decision in Shea “renders Ricci toothless.” (p. 23) Ricci had teeth, PLF argues, because Ricci “clarified that race-based employment decisions are generally ‘impermissible’ by government under Title VII. 557 U.S. 557, 563 (2009),”—except where the employer “has a strong basis in evidence of a disparate impact violation,” or “if necessary to remedy the effects of past intentional discrimination.” (p. 22 & n.5). In describing Ricci’s scope that way, however, PLF plucked the word “impermissible” from this (arguably narrower) sentence in Ricci: “We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” Ricci, 557 U.S. at 563 (emphasis added).
Will PLF’s argument about Ricci persuade at least four Supreme Court Justices to vote for cert. in Shea? Even if the Court did strategically write Ricci with an eye to Weber and Johnson (for more, see here), the Court may not see Shea as a suitable vehicle for confirming or extending Ricci’s scope. Shea concerns Title VII’s section 717, not section 703(a). There’s no real circuit-split yet—the other appellate court to reach how Ricci affects Weber and Johnson ruled the same way as the D.C. Circuit. See United States v. Brennan, 650 F.3d 65, 102–04 (2d Cir. 2011). In general, the odds of cert. are low: During its October 2014 term, the US Supreme Court docketed 1,544 cases filed by non-in-forma-pauperis parties seeking appellate review, but granted only 60 cert. petitions in such cases—roughly a 4% grant rate. Sure, maybe the odds are much better for the subset of such cases that are about race-based affirmative-action, given cert. grants for those cases in recent years. What’s unclear is by how much, and thus whether, ultimately, a cert. grant in Shea is likely or a longshot.