For a case out of little Connecticut, the Ricci v. DeStefano case today sure has drawn big interest. Seems like everyone has an opinion on the matter.
There are plenty of wrapups of the case out today. Many of them are, predictably, saying much of the same thing: Interesting case; probably applies to private employers; still waiting to see the impact.
For the mainstream local media approach, the Connecticut Law Tribune has two pieces here and here (I’m quoted in the latter). The Hartford Courant’s piece is here. For a slightly less-mainstream approach, the New Haven Independent’s report has some good local feedback here and here. And Slate magazine has some great "breakfast table" discussion pieces about the case in easy-to-understand language as well.
But there are a few analytical pieces I’ve reviewed today that stand out and I thought I would highlight a few that break through the clutter.
I’ve been reviewing the decision today as well and will have some additional thoughts (with action steps for employers) in an upcoming post.
- Walter Olson, whose Overlawyered blog is celebrating TEN years this week (amazing, eh?) has a piece in Forbes.com entitled, appropriately, "Sued If You Do, Sued If You Don’t". Walter seems to have gotten to the bottom of things — the court was troubled by the prospect of an employer who basically says "trust me" when it provides its rationale for its decision, when the truth behind the decision is far less clear:
Monday’s crucial ruling is on the question: how serious does the prospect of litigation over an employment practice have to be before an employer is allowed to lean over in the opposite (discriminatory) direction to avoid liability? Justice Kennedy’s majority rejected New Haven’s contention that a "good faith" fear of liability should be enough, but also rejected the firefighters’ contention that reverse discrimination could be justified only to avoid an outright collision between the two legal requirements. Instead, Justice Kennedy selected a middle ground: to discriminate against majority applicants, employers will need a "strong basis in evidence" that they otherwise "would have been liable."
Even now, The New York Times is no doubt preparing an editorial grimly portending the return of white supremacy at the hands of a callous Court. But the moral is probably a narrower one: If you’re going to shaft white applicants, don’t be as blatant about it as New Haven was. Kennedy was clearly angered by the after-the-fact disavowals and excuses by the city that, in his words, were "blatantly contradicted by the record." The Court is traditionally unsympathetic to employers that invent "pretextual" reasons for biased decision making; this time that principle happened to cut in an unexpected direction.
- The World of Work blog has its take on the decision and predicts something else — a bill from Congress. In addition, the blog suggests that employers need not worry about the case (something that I disagree on, to a degree, as I’ll discuss in an upcoming post):
Ultimately, the Ricci decision will have little to no impact on most employers, but represents a small victory for employers (despite the positioning here that held against the city/employer). Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists. The Ricci decision may not last for long, however. Political condemnation by Democrats has been swift, with Senator Patrick Leahy (D-VT) saying that "it is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces." Don’t be surprised if Congress passes legislation down the road aimed at upending the Ricci decision.
- Michael Fox, at the always reliable, Jottings by an Employer’s Lawyer, also highlights a little-discussed topic that I have also been thinking about today — affirmative action plans. He predicts that the decision could impact the way employers think about their affirmative action plans.
- The professors at the Workplace Prof blog are, not surprisingly, hard at work trying to make sense of the decision as well. While some of the analysis is geared towards academics, they make a good point for employers: Title VII is going to be a mess to navigate.
The result is also going to make it difficult for employers to navigate Title VII, although maybe not more than it was before this decision. Employers will likely do nothing to evaluate their hiring or promotional processes until those processes have run their courses. There is very little incentive for employers to try avoid disparate impact liability any more than they would have before this decision, and more incentive not to change anything, just in case that change is itself discrimination.
I’m not necessarily sure I agree with this because it presumes that employers don’t care about their employees or care about ensuring that their workplace is free from discrimination. Many employers already have systems in place to review their hiring and promotional practices; it’s difficult to see why employers would simply dismantle these programs in light of Ricci.
- And lastly, I would be remiss if I didn’t mention the excellent coverage by the SCOTUSBlog, which provides this analysis (with the rhetoric) today. The likely result from Ricci? More litigation:
The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean. In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.