July 13, 2009
What Ricci Says About Sotomayor - and ObamaBy David Gibberman
Ricci v. DeStefano, a lawsuit brought by New Haven, Connecticut firefighters after the city scrapped promotion exams they had passed, says disturbing things about Judge Sotomayor -- and President Obama.
Many people have been concerned about Judge Sotomayor since hearing her comment that a wise Latina woman would make better judicial decisions than a white male. They've wondered whether her willingness to judge people by the group to which they belong and her stereotypes about that group will affect her judicial decisions once she's on the U.S. Supreme Court and no longer subject to any oversight. Ricci indicates that it will.
The specific legal question in Ricci was: May an employer disregard the results of a promotion exam because too many individuals of one race had the best scores?
When New Haven firefighters took the lieutenant promotion test, only whites scored high enough to fill the eight current vacancies (for details about these exams, see Justice Kennedy's opinion). At least three African-American candidates would have been eligible for subsequent vacancies during the two years that the test results would have been valid. With respect to the captain promotion test, seven whites and two Hispanics did well enough to be eligible for promotion to current vacancies.
All nine Supreme Court justices tried to reconcile New Haven's legal obligation not to intentionally discriminate against firefighters on the basis of their race with its obligation not to unintentionally discriminate against them.
An employer can be liable for unintentionally discriminating when a job test adversely affects a disproportionate number of individuals of a particular race unless (1) the test measures the skills required to perform the job successfully and (2) those adversely affected can't point to an equally good alternative with less adverse impact (42 U.S.C. §2000e-2(k)(1)(A), (C), available, like other U.S. Code provisions).
New Haven made a conscientious effort not to unintentionally discriminate. It paid $100,000 to Industrial/Organizational Solutions, Inc. (IOS), a company specializing in designing entry-level and promotion tests for fire and police departments, to develop lieutenant and captain promotion exams. IOS interviewed and observed lieutenants and captains at work to identify the tasks, knowledge, skills, and abilities essential for them to perform their jobs successfully. Minority firefighters were oversampled so that white candidates would not be unintentionally favored.
IOS prepared for each position a multiple-choice test (each question written below the 10th-grade reading level) and an oral exam consisting of hypothetical situations testing skills identified as needed to successfully perform as a lieutenant or captain. Each panel grading a candidate's oral exam included one white, one African-American, and one Hispanic. Candidates were given three months to prepare for the exams and told which chapters in the source materials they should study.
All nine Supreme Court justices agreed that it wasn't okay for New Haven to discard the test results merely because there was a racial disparity in test scores. Five justices decided that an employer can intentionally discriminate against employees by disregarding test results only if the facts show that it has a "strong basis in evidence" to believe that it otherwise will be liable for unintentional discrimination (Justice Kennedy's opinion, p. 26).
The other four justices would have set a lower threshold. They argued that an employer should be able to disregard test results if the facts show that it has "good cause" to believe that it otherwise will be liable for unintentional discrimination (Justice Ginsburg's opinion, p. 19).
Did Judge Sotomayor agree with any of the Supreme Court justices? No. Instead, she decided that an employer can disregard test results whenever a test disproportionately favors members of one race over another, even though the employer has no "strong basis in evidence" or "good cause" to believe that it otherwise will be liable for unintentional discrimination (Ricci, 6-9-08, p. 2, where Judge Sotomayor adopted in toto District Judge Arterton's "thorough, thoughtful, and well-reasoned opinion," and District Judge Arterton's opinion, Ricci, 9-28-06, pp. 39, 40).
As pointed out by Justice Kennedy, such a rule could cause employers to discard the results of lawful and beneficial promotion exams whenever the results failed to yield a desired racial outcome and amount to a de facto quota system (Justice Kennedy's opinion, p. 22).
Just as troubling as the rule itself is its defense. New Haven's rejection of test results was acknowledged as "race conscious" but "decidedly less ‘race conscious'" than permitting employers to readjust test scores so that pass rates for members of each race would be equivalent (Ricci, 9-28-06, p. 35). The practice of re-scoring tests (referred to as "race norming") was approved by two cases cited in support of Judge Sotomayor's rule but prohibited by Congress after those cases were decided (42 U.S.C. §2000e-2(l)).
Even though New Haven scrapped the test results because too many whites did well, Judge Sotomayor actually defended New Haven's action as "race-neutral" because "all the test results were discarded" (p. 36 of Ricci, 9-28-06). This is reminiscent of the argument, ridiculed and eventually rejected by the Pregnancy Discrimination Act of 1978, that denying benefits to pregnant women was okay because it was gender-neutral (i.e., it affected only pregnant people, not women in general).
President Obama may have said that he wants his Supreme Court justices to have "empathy," but Judge Sotomayor certainly had none for the firefighters who passed their test. She actually rejected the argument that they had been "injured or disadvantaged"; to her, New Haven's action only created "uncertainty as to their performance in the City's next promotion selection process" (p. 38 of Ricci, 9-28-06).
Tell that to Frank Ricci, who had several learning disabilities, including dyslexia, studied eight to 13 hours a day to prepare for the test, and spent more than $1,000 to purchase the study materials and pay a neighbor to read the materials onto a tape (Justice Kennedy's opinion, p. 7). Or Benjamin Vargas' family. He gave up a part-time job to have more time to study, and his wife took leave from her job to care for their three young children so that her husband would have more time to study (Justice Alito's opinion, p. 13).
President Obama's selection of Judge Sotomayor should disappoint white supporters who saw his election as absolving them from the sin of racism. His selection of Judge Sotomayor shows that he still considers whites to have unfairly benefited from racism and that it's still okay to discriminate against whites to remedy past sins.
Considering that it's been more than 45 years since passage of the Civil Rights Act of 1964, it's sad that those in power still are looking for "quick fixes," like quotas and preferences, instead of tackling the hard work, like improving education, to overcome the lingering effects of racism.