In a recent 5-4 decision, the Supreme Court appears to have struck a blow against workplace equality through Ricci v. DeStefano. The Court found that the City of New Haven was wrong in its decision to throw out the results of a discriminatory test that saw the exclusive promotion of white firefighters to senior positions. The disappointing decision imposes a new standard on employers that makes it significantly more difficult to remedy policies that have a disparate impact on minority workers.
In Ricci, the Court was asked to consider whether New Haven was right to set aside its test results to pursue a fairer test, in order to avoid complications under Title VII of the Civil Rights Act of 1964. Title VII is a critical civil rights provision that, among other things, bans practices that have a disparate impact against minorities. The Court acknowledged that discrimination is very much a pervasive problem that still plagues the American workplace, and that all employers are still legally obligated to avoid discriminatory polices. However, the Court created a new, tougher legal standard to prove that policies have a discriminatory impact.
[The] majority did not rule out consideration of disparate impact altogether. Employers may consider potential racial impact “during the test-design stage,” Justice Kennedy wrote.
And, in “certain, narrow circumstances” after tests are given, he continued, employers may discard the results if they can demonstrate “a strong basis in evidence” that using the results would cause them to lose a disparate-impact suit.
Justice Kennedy provided the decisive vote and wrote the controlling decision, showing just what sort of impact a single justice can make: one vote in the other direction would have provided a powerful statement against discrimination in the workplace.
In a dissent read from the bench, Justice Ginsburg said that no American should be hired or promoted under a flawed selection process, especially when other non-discriminatory alternatives are available. New Haven, she wrote, had a legitimate fear of losing a disparate-impact suit.
The decision is widely expected to create confusion in employment law, since the Court did not indicate what standards should be used to meet the new "strong basis in evidence" test. Meanwhile, as discrimination remains an ongoing issue, aggrieved workers find themselves with one less tool to defend their rights in Court.
Supreme Court Finds Bias Against White Firefighters [The New York Times]
(Photo: Simon Welsh)
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