Supreme Court Slams Equal Employment Opportunity

AFRO.com, News Report, James Wright, Posted: Jul 01, 2009

Leaders of civil rights organizations said they were disappointed that the U.S. Supreme Court, in the case of Ricci v. DeStefano. In a 5-4 decision, the Court sided with White firefighters who sued the city of New Haven, Conn., because of alleged reverse discrimination in promotions in the city’s Fire Department. The White firefighters scored better than their Black and Latino colleagues on a written exam but were denied the promotions by the city because none of the African American and a few of the Latinos passed the test.

The White firefighters lost in U.S. District Court and in the U.S. Court of Appeals for the Second Circuit. Writing for the majority was Associate Justice Anthony Kennedy, who was joined by Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas.

In his opinion, Kennedy wrote:

"Fear of litigation alone cannot justify the city's reliance [New Haven] on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII [of the Civil Rights Act of 1964], and summary judgment is appropriate for petitioners on their disparate-treatment claim."

The majority said that the White firefighters were unfairly penalized because they had passed the test and had met the requirements first set by the city of New Haven.

Writing for the dissenters, Justice Ruth Bader Ginsburg said that the "White firefighters understandably attract this court's sympathy."

"But they have no vested right to promotion," she wrote. "Nor have other persons received promotions in preference to them. It is indeed regrettable that the city's non-certification decision would have required all candidates to go through another selection process.

"But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers. Yet that is the choice the court makes today."

Ginsburg also chided her colleagues on ignoring the history of racism in firefighting, saying that "firefighting is a profession in which the history of racial discrimination casts a long shadow." She said that ultimately that the decision "will not stand."

Joining in Ginsburg's dissent were Justices John Paul Stevens, David Souter and Stephen Breyer.

John Payton, the president and director-counsel of the NAACP Legal Defense Fund said that the Ricci decision is "a step backward from the goal of equal employment opportunity."

"The Supreme Court's interpretation imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace," said Payton. "Faced with the reality of continuing racial exclusion, an employer has a responsibility to abandon unfair employment practices and adopt those that are fair and effective."

Sarah Crawford, senior counsel with the Lawyers' Committee for Civil Rights under Law's Employment Discrimination Project, agreed with Payton, said that the decision was a "giant leap backward."

"Today's decision ignores the plain language of the Title VII, congressional intent and established precedent," said Crawford. "We still have far to go to fulfill Title VII's promise of equal employment opportunity."

Barbara Arnwine, executive director of the Lawyers’ Committee, said that the civil rights community will be more vigilant in fighting employment discrimination based on tests. "The court said that lawsuits can still be brought on the basis of proving tests to be discriminatory but the standard to prove that they are racially biased just got higher," said Arnwine. "This creates a new standard of employment testing which may prove to be expensive and time consuming. We in the civil rights community will make jurisdictions prove that their tests are not discriminatory toward minorities."

D.C. Del. Eleanor Holmes Norton (D), a former chairwoman of the Equal Employment Opportunity Commission, said that she will introduce a bill to overturn the Ricci decision. "An activist majority, once again, has gone out of its way to thwart yet another mandate that Congress and the courts have insisted was necessary to break the hold of generations of discrimination against minorities and women," said Norton in a statement. "The Supreme Court rewrote this express mandate of the Congress that the courts have long honored. Instead, this court invites employers to stare discrimination in the face and keep walking to their peril.

"Consequently, Congress has no recourse except to do as we did in the Ledbetter case [the court questioned equal pay for women] and return the statute to its intended meaning. I will begin this process by introducing a bill to accomplish this end when Congress returns."