If only all trial and deposition transcripts happened this quickly….

The Supreme Court held oral argument in the Ricci v. DeStefano case earlier today. The transcript is now available here

The Workplace Prof has the snap judgment which seems pretty on point from my initial scans:

I’ve skimmed it enough to see that there’s a lot there to digest more fully. My initial impression is that the court seemed to divide along familiar lines with Ginsburg, Souter, Stevens, and Breyer questioning the petitioners fairly heavily, and Roberts, Scalia, and Alito questioning the respondents closely. Kennedy questioned both sides about equally, and Thomas was characteristically quiet. 

Most of the argument seemed to focus on whether the decision not to certify the test was race discrimination or simply racial consciousness and what kinds of evidence an employer would need to have before it could act in this manner.

There’s lots to be fascinated by in the transcript, but one exchange with Chief Justice Roberts stood up on my first glance. He asks the U.S. Government whether the promotion of diversity can be a compelling state interest in employment decisions.  While he asks for a yes or no answer, the following exchange happened:

MR. KNEEDLER: We think — we think it probably is a compelling state interest, but it is not one that — that can be advanced by race — by racial classifications. And that — and that is our basic submission here. …
CHIEF JUSTICE ROBERTS: Can it be advanced by taking actions to avoid what is perceived as a disparate impact?

But whether the public employer can take action on that seems to be where the court is struggling with in the exchange that follows:

CHIEF JUSTICE ROBERTS: In other words, the disparate impact is regarded as something you can intentionally respond to by drawing racial distinctions solely because you would like a more diverse workforce?
MR. KNEEDLER: No, not drawing racial distinctions. That’s our — this — the employer’s response here did not draw racial distinctions. It did not say so many black firefighters would be promoted —
MR. KNEEDLER: — and so many white —
CHIEF JUSTICE ROBERTS: It didn’t care — it had to draw racial distinctions because it looked at the test and said, we think there’s a problem because of the racial makeup of who’s going to get the promotions.

But whatever the result, the decision isn’t an easy one to resolve since it puts two competing interests "at war" with each other, as Justice Scalia stated at oral argument.  

The court will, however, resolve this one way or another.  A decision is expected before June.


  • Paul

    I do not believe the issues here have been well sorted out. The first issue is that HR professionals are, or should be, fully aware of the different types of selection tests and their potential to produce disparate impact on minority applicants. The time to consider these issues is before opening a competitive civil service exam…NOT after the candidates have competed in good faith. If an employer chooses to use a test and, based on experience or a knowledge of the relevant literature, has reason to believe that it will result in adverse impact a validation study must be conducted to support the job-relatedness of the test and its consistency with a business necessity. The decision to use a test and then not to refer the high scoring candidates because of their racial profile is the other issue, which has merit under the theory of disparate treatment.