Monday, June 29, 2009

Ricci v. New Haven: Supreme Court Puts the Rabbit Back in the Hat

The U.S. Supreme Court, in one of its final, eagerly awaited decisions of the term, issued its Opinion in Ricci v. New Haven today. The Court was faced with an in-your-face set of facts which can only lead to judicial gymnastics. The City of New Haven administered an examination for promotions among its firefighters, as required by a collective bargaining agreement, and test scores, if certified, would have resulted in all whites except for one Hispanic being promoted. Although a few black test-takers did qualify for promotion, because of the paucity of openings, none would have been promoted.

Apprehensive about being sued for race discrimination on the theory of ‘adverse impact,’ the City of New Haven refused to certify the test results, and the successful candidates then sued alleging discrimination under a theory of ‘disparate treatment.’ Thus, the decision offered a high noon showdown for ‘disparate impact’ versus ‘disparate treatment’ claims. (Parenthetically, the case was touted as a ‘test’ of the jurisprudence of Obama nominee Sonia Sotomayor to the high court, however this is more sizzle than steak. The second circuit decision below was essentially a one paragraph affirmance of the district court’s decision, and offers precious little genuine insight into the nominee’s thinking on the matter.)

The High Court appeared to reconcile the struggle between disparate treatment and disparate impact by instructing employers to avoid disparate treatment first, and recognize that if doing so may create a disparate impact, it may only face liability where there is a “strong basis in evidence of disparate-impact liability.”

Which leads inexorably to the question: what is a "strong basis in evidence of disparate-impact liability?”

The Court invokes the decision of Richmond v. J. A. Croson Co., another disparate impact case, which resulted in a sharply divided plurality opinion consisting of …well, rather than my trying to explain, let me quote from the syllabus:

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, in which REHNQUIST, C. J., and WHITE, STEVENS, and KENNEDY, JJ., joined, an opinion with respect to Part II, in which REHNQUIST, C. J., and WHITE, J., joined, and an opinion with respect to Parts III-A and V, in which REHNQUIST, C. J., and WHITE and KENNEDY, JJ., joined. STEVENS, J., post, p. 511, and KENNEDY, J., post, p. 518, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, post, p. 520. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 528. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 561.

Justice Blackmun’s dissent in Richmond summarized the various approaches of each opinion in Richmond, and points to the ‘strong basis’ analysis introduced in Wygant v. Jackson Bd. of Education. Wygant itself was itself a plurality opinion in which Justice Powell, speaking for four justices simply wrote, “[T]he trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary.”

So what is a strong basis? Is it like the Supreme Court’s take on pornography, “I don’t know what it is but I’ll know it when I see it?” Have they really solved any problem here? Are employers’ consciences going to be eased by this decision now that the conflict has been resolved once and for all?

Doubtful. I would say the forecast is cloudy with a chance of lots more lawsuits. Justice Ginsburg’s fierce dissent, joined in by Breyer, Souter and Stevens, wryly observes, “The Court’s order and opinion, I anticipate, will not have staying power.” More importantly, this highly fact-specific case (the more salient facts being a function of which opinion you read) offers precious little to resolve any issues other than the very case before the Court.


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