As Think Progress tells us here (and I know we know the result already), Hangin’ Judge JR and The Supremes ruled yesterday in favor of firefighter Frank Ricci in his case against the city of New Haven (Mayor John DiStefano was also named in the action) for throwing out the results of a management test where African American candidates did not score well, whereas 17 whites and one Hispanic candidate did.
We also learn the following…
(Yesterday’s) ruling creates a new standard which says that an employer’s decision to toss out a hiring test must have a “strong basis in evidence” showing that the test preferred one race over another.
(And by the way, kudos to Chuck Todd for this – h/t Atrios).
Think Progress also notes that Supreme Court Nominee Judge Sonia Sotomayor is thusly now under attack for having the decision of the Second Circuit Court of New York (of which she was a member) overturned. However, the Supremes, particularly under J.R., have the luxury of enabling new law (which they did by applying the new standard noted above), although all other courts, including the Second Circuit, were legally obliged to honor the existing standard under Title VII of the Civil Rights Act (as Sotomayor did).
It should be noted that both black and Hispanic firefighters recognized how racially divisive this case ultimately became; this New Haven Register story from earlier this month tells us…
NEW HAVEN — A group of black and Hispanic firefighters and community leaders, who say they face common challenges but sometimes follow divergent paths, stood together in a show of unity Wednesday at a symbolic location in a melting-pot neighborhood.
The announcement was what they called a newfound common ground between the two racial groups and an era of better collaboration, forged during a recent series of meetings mediated by the NAACP aimed at “healing,” said James Rawlings, president of New Haven’s NAACP branch.
“We face a lot of things together as minorities, and for us, being divided and separate is not a good thing,” said firefighter Terry Rountree, vice president of the New Haven Firebird Society, a fraternal organization of black firefighters. “And from this day forth, hopefully, we can work together and just serve the city better in certain issues that we both deal with as minorities on the Fire Department.”
That’s a positive development, particularly since Benjamin Vargas, the one Hispanic firefighter who took the test, had his results nullified also.
Also, Linda Greenhouse, former Supreme Court reporter for the New York Times, tells us the following from here (in the matter of prior rulings that have “chipped away” at Title VII)…
To understand the nature of the shift (represented by the Ricci ruling) requires a bit of history. Congress enacted Title VII of the Civil Rights Act of 1964, the statute at issue in the Ricci case, with a simple command to employers: thou shalt not discriminate on the basis of race or other protected characteristics, including sex and religion. But the simple proved to be complicated. An employer of blue-collar workers in North Carolina, Duke Power, required a high school diploma of all job applicants, a requirement that screened out 88 percent of black men in that region at that time.
In a 1971 decision, the Supreme Court ruled unanimously that a test that was “fair in form, but discriminatory in operation” could violate Title VII even without proof that the discrimination was intentional. Congress eventually amended Title VII to codify that decision, Griggs v. Duke Power. The rule was clear: if a job requirement produced a “disparate impact,” the employer had the burden of showing that the requirement was actually necessary.
Also, I would be remiss if I didn’t take note of this shockingly sensible editorial today by the Philadelphia Inquirer (commendable stuff, actually), which takes the Supremes to task for the ruling and notes the following…
…white firefighter Frank Ricci and 19 others cited (the ’64 Act) to allege reverse discrimination – and the court bought it. It did not matter to the court that Ricci and the other plaintiffs were not being denied promotions; they simply had to wait for New Haven to install a new examination that wasn’t biased.
In fact, the reverse-bias lawsuit, in its five-year journey to the Supreme Court, delayed replacing New Haven’s flawed multiple-choice test with an exam that can better determine who should be a fire captain or lieutenant. Better tests, which include simulated tactical firefighting drills, are used successfully in other cities.
The ruling casts a pall on all affirmative action, and confirms that judicial activist Chief Justice John Roberts is on a mission to end what he calls the “sordid business” of “divvying us up by race.”
This makes the ruling by the Supremes all the more “muddy” since it let Title VII stand (fortunately), though it also managed to “make it harder for employers to comply with anti-discrimination laws” as noted here.
Also, I thought Ron Walters of the Daytona Times made the following good points here…
A section of the 1964 Civil Rights Act prohibits the use of tests that would be used intentionally to discriminate, or tests that would be used without the intention to discriminate but would nevertheless have an exclusionary (disparate) impact. The continuing importance of this is that in 2007, the Equal Employment Opportunity Commission found that discrimination charges involving test screening of job applicants have significantly increased due in part to security concerns raised by 9/11 and the economy.
The Age Discrimination Act and Americans with Disabilities Act protects others from biased testing, in addition to African- Americans. So any change in the law that seeks to invalidate Title VII for Blacks would also affect others.
However, it remains to be seen whether the High Court of Hangin’ Judge JR is on the same “mission” to “divvy up” the legal rights of the elderly and those dealing with disabilities as it is against African Americans.