In closing out its 2008-09 term today  the U.S. Supreme Court ruled 5-4, along ideological lines that the city of New Haven violated Title VII in refusing to promote a group of white firefighters and refusing to apply the results of a test that it claimed would have had a disparate impact on minorities.

The decision in Ricci v. DeStefano (download here) is bound to be heavily reviewed, scrutinized and analyzed.  Indeed, because Judge Sotomayor (who was involved in the original decision at the Second Circuit) has now been nominated for the Supreme Court, the decision has been highly anticipated.

But despite the hyperbole about this case beforehand, the case has pitted two competing issues against each other – the city’s alleged fear that the test, if applied, would have had a disparate impact on minorities (opening itself up to a lawsuit) and the firefighter’s right to be promoted based on doing well on the test.  The Court said that the city’s fear was not sufficient to not use the test and that not using the test was a violation of Title VII.  

Indeed, in its decision, the Supreme Court goes one big step further; it provides the city with a defense to a possible disparate impact lawsuit:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I’ve previously discussed the case extensively in a variety of posts which can be found here and here.

Justice Ginsburg provides the dissent here and predicts that the case will be difficult to apply in practice and further suggests that employers may have a difficult time fiting within its parameters:

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—evenfor surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulatean employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.”

I’ll refrain from any big snap judgments until I review the decision at length (93 pages and all) but suffice to say that this decision will be the new starting point for employers who worry about disparate impact claims.  It’s application to private employers will no doubt be scrutinized as well, but I’m going to review the whole decision before drawing too many conclusions.

What’s interesting is that the court decided the case on Title VII grounds instead of the "Equal Protection Clause" questions that it also faced. What this means is that private employers need to pay much closer attention to this case than had it been decided on the other grounds. After all, Title VII applies just as much to private employers as it does to the government.  

My firm will be presenting a free webinar on this case and its impact on employers on July 8th at noon. Details will be forthcoming in a post later today. 

In the meantime, if you’re looking for other instant analysis, check out the SCOTUSBlog for their posts.

Those waiting for a decision in the hotly-anticipated Ricci v. DeStefano case will have to wait a few more days (likely Monday). The U.S. Supreme Court released the decisions for the day this morning and Ricci was not among them. It is now expected to be released early next week. It is one of just three cases remaining on the court’s docket.

In the meantime, Slate has published a lengthy piece today about the story "behind" the case.  It appears to be well-sourced and detailed and provides the type of insight you would expect from Slate. As the article states: 

The story behind Ricci is just one example of an entrenched conflict over municipal hiring that extends back in time and across the country. For at least two generations, competition for jobs in many cities has been framed as a battle between one ethnic or racial group and another over who is an insider and who is an outsider. Black firefighters first brought a suit over discrimination in New Haven in 1973. They won. So did minority firefighters who sued Cleveland, Birmingham, St. Louis, New York City, Newark, Bridgeport, Buffalo, Philadelphia, Massachusetts (statewide), San Francisco, Baltimore, and Minneapolis, according to the NAACP Legal Defense Fund. 

But those victories all came in the 1970s. More recently, white firefighters have begun to fight back in court. Frank Ricci’s case isn’t the first reverse discrimination suit in a fire department. In 2001, four white men sued the Boston Fire Department for hiring minority candidates who had scored lower than the plaintiffs on a civil-service exam. They were the first to challenge the Boston department’s affirmative-action policy since it had been upheld by the U.S. Supreme Court in 1989. In 2004, they won. Last year, a Los Angeles jury awarded two white fire captains $1.6 million in damages in a suit claiming that they had been punished more severely than a minority officer for participating in the same prank. The New Haven suit, meanwhile, has spurred a similar one by white firefighters, also over promotional exams and test scores, in nearby Bridgeport, Conn.


The Supreme Court is expected to rule later this month on the controversial case of Ricci v. DeStefano, the case out of New Haven, Connecticut involving a group of white firefighters who have alleged discrimination by the city.

But what will happen after the court rules on the case?

That’s the subject of an interesting post by the New Haven Independent today who talked with Linda Greenhouse, a former reporter for The New York Times who covered the U.S. Supreme Court for many years:

When the U.S. Supreme Court finally decides city firefighters’ fate this month, the wait for promotions probably won’t be over. It will likely return to Judge Janet Bond Arterton’s New Haven courtroom.

And it could take a while.

That’s the most likely scenario of several sketched out by a leading Supreme Court expert, Linda Greenhouse, when asked about Ricci v. DeStefano. The court is to issue a decision before its term ends in late June.

Greenhouse predicts that those expecting a quick outcome are going to be disappointed:

“Folks in New Haven who are expecting a clear ruling out of this, may be quite surprised,” said Greenhouse. Greenhouse covered the former Supreme Court for The New York Times for 30 years; she won a Pulitzer Prize doing it. She is now a faculty member at the Yale Law School.

“It may leave them as confused as they’ve been all along,” Greenhouse predicted.

Because the case has also been a lightning rod for criticism for Supreme Court nominee Sonia Sotomayor, expect to hear lots more about it in the weeks to come.

Over the last 24 hours, much virtual ink has been spilled on a case pending before the U.S. Supreme Court, Ricci v. DeStefano, because Judge Sonia Sotomayor — one of the judges handling the case at the Court of Appeals — has been nominated to the Court. (I’ve covered the case in various posts here.)  From a Connecticut perspective, the Hartford Courant does its own recap here.

The question, frankly, is why such a fuss? 

Back in September 2006, U.S. District Court Judge Janet Arterton issued a lengthy opinion in which she dismissed the firefighters reverse discrimination claims and found for the city of New Haven.  Judge Arterton is no stranger to employment law cases, having represented mainly employees in private practice before getting appointed to the bench.  The decision is well worth the read.  Reasonable people can disagree with the outcome, but Judge Arterton’s decision hardly lacks logic or thorough reasoning. 

The firefighters appealed and the case went up to the Second Circuit.  Judge Sotomayor was one of three Second Circuit judges selected to serve on a panel to hear the case.  In the summer of 2008, she and two other judges decided to affirm the district court’s decision

The two other judges, Judges Pooler and Sack, and Judge Sotomayor all agreed that they did not have anything to add to Judge Arternon’s decision so they issued a "per curiam" opinion which, in essence, adopted the lower court’s reasoning.  (I should note that they original issued a summary order on the case, later turning it into a "per curiam" decision.  Summary orders are quite commonly used in the Second Circuit).  While not an everyday occurrence, it’s not uncommon for courts to use "per curiam" decisions either.  (Of course, perhaps the most famous "per curiam" decision was in Bush v. Gore, but that’s an argument for another day.)   

Here was the essence of the the Second Circuit’s decision:

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

The firefighters appealed to the Second Circuit again, asking the entire court to hear the case en banc (meaning that all 13 judges would hear the case). That request was rejected by a 7-6 margin and featured a spirited dissent by Judge Cabranes

The case now is pending before the U.S. Supreme Court where another split decision is expected.

The attack on Judge Sotomayor from some on the Ricci case seems to focus on the fact that she and two other judges decided to dismiss the claim in a "per curiam" decision, rather than in a lengthy one. However, there are many reasons why a case might be decided in that fashion and to attribute and speculate as to the reasons it was used in the Ricci case seems to be reaching for an argument that might not otherwise exist.  And regardless, there were many other judges in the Second Circuit who did not believe the case warranted any further decision either as determined by the en banc vote.  Are all of them disqualifed from serving on the Second Circuit too?

Some critics have gone even further, claiming that her decision in the Ricci case showed that she "reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety." 

All of these critcisms of Judge Sotomayor seem to be a reach for an argument that doesn’t really seem to exist based on her handling of the Ricci case. And it certainly doesn’t suggest that she is unqualifed to serve on the U.S. Supreme Court. After all, if the Supreme Court rules in favor of the city, does that mean that the justices are also "reading racial preferences and quotas into the Constitution"? The answer is obvious: No.

So, what are we ultimately to make of the Ricci case? In my view, not much.  It is, quite simply, a difficult decision in which very bright people can disagree.  And judges don’t get to pick and choose the cases they are asked to judge. 

As the Workplace Prof succienctly said last month, "One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly."

In the next month or so, the U.S. Supreme Court is expected to issue its decision (or multiple decisions) in the Ricci v. DeStefano matter (for background, see my prior posts here).

In the meantime, other bloggers and writers have been adding their views to fill out the spectrum. 

On the Talking Points Memo site, one thoughtful post suggests that the lower courts got it right in finding that there was no discrimination.

On the Connecticut Employee Rights blog, Rick Hayber hopes the Supreme Court "gets it right":

I do not believe that New Haven refused to promote Mr. Ricci because he is white. I believe that it simply concluded that the test must have been biased. If true, this is simply not discrimination. Lets hope the Supreme Court gets it right!

The Connecticut Law Tribune also has this recap of the case so far.

Lastly, the SCOTUSblog has this thorough recap of oral argument.

Stay tuned. This one promises to be interesting.


There’s lots of coverage this morning on the Ricci v. DeStefano (otherwise known as the New Haven firefighter reverse discrimination claim) oral argument at the Supreme Court yesterday — among the most significant discrimination cases arising in Connecticut in years.  Here’s a wrap-up:

  • Ellen Simon, of the Employee Rights Post, rightly points out the dilemma facing New Haven in this situation. She suggests that Justice Kennedy may be the swing vote; the question is whether he tries to stake out a middle ground by sending the case back down to the lower courts for more analysis without declaring either side a winner or loser right now.
  • The Hartford Courant provides some comments from the parties about the oral argument. 
  • shares the view that all eyes are going to be on Justice Kennedy to see how he shapes the analysis.  According to the article, for what it’s worth, the reporter observed: "Kennedy, the object of all the attention, did not explicitly tip his hand, but overall seemed sympathetic to the white firefighters who claim they were discriminated against on the basis of race, in violation of Title VII of the Civil Rights Act, when the city did not give them the promotions."
  • Carole Bass, of the New Haven Independent, provides some additional on-scene coverage of the argument and framed the issue that the court seemed to focus on as "Was it a ‘race-based’ decision? Or simply ‘race-conscious’?"
  • For a more scholarly discussion of the case, the Workplace Prof blog does an excellent job at summarizing the many different sides to the case.  As he states, the case is not an easy call, either to analyze or predict: "One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly."

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.