Supreme Court rules for white firefighters in bias case

McClatchy NewspapersJune 29, 2009 

WASHINGTON — A sharply divided Supreme Court ruled Monday that the city of New Haven, Conn., had discriminated against white firefighters, reversing a key decision by high court nominee Sonia Sotomayor.

The court's much-anticipated 5-4 decision is guaranteed to become prime fodder for Sotomayor's Senate confirmation hearings. It also will change how employers handle hiring decisions.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy wrote.

Kennedy and the court's four consistent conservatives concluded that New Haven violated Title VII of the landmark Civil Rights Act of 1964 when the city discarded promotion test results on which minorities had scored poorly. City officials claimed that minority applicants otherwise would have sued them.

"The city rejected the test results because too many whites and not enough minorities would be promoted," Kennedy wrote. "Without some other justification, this express, race-based decision-making violates Title VII's command that employers cannot take adverse employment actions because of an individual's race."

The decision puts New Haven firefighter Frank Ricci and his white colleagues back on track for potential promotions they were denied despite high test scores in 2003.

More broadly, the conservative Sacramento, Calif.-based Pacific Legal Foundation predicted that the ruling could shape the Memphis (Tenn.) Police Department, the California Department of Transportation and other agencies that are facing similar legal challenges over race-related hiring decisions.

"It says to employers, if you're concerned about the makeup of your fire lieutenants, or your supervisory ranks, then you need to think about what type of selection process you're going to use at the front end," Stanford University law professor Pam Karlan said.

In the future, the court ruled, employers must have a "strong basis in evidence" that they'll be sued before discarding test results solely on the grounds of race.

Justice Ruth Bader Ginsburg read aloud a stinging dissent, criticizing the "strong basis in evidence" standard as "enigmatic" and confusing to employers.

"By order of this court, New Haven . . . must today be served, as it was in the days of undisguised discrimination, by a fire department in which members of racial and ethnic minorities are rarely seen in command positions," Ginsburg wrote.

For Sotomayor, the high court's 34-page majority opinion will be at least a glancing blow. The court rejected the reasoning of Sotomayor and the two other judges on a panel of the 2nd U.S. Circuit Court of Appeals.

"The Supreme Court saw the case for what it is: a 'race-based decision' that violates federal law," declared Republican Sen. John Cornyn of Texas, a member of the Senate Judiciary Committee, who cast the high court decision as anti-Sotomayor.

Tom Goldstein, a Washington lawyer who practices regularly before the court, contended that the narrowly decided ruling split along the court's traditional ideological lines "doesn't call the confirmation into question," though it might offer Republicans more talking points. Kennedy's majority opinion doesn't directly criticize the 2nd Circuit's reasoning.

The case arose from New Haven's efforts to promote a new batch of officers. Written tests counted for 60 percent of the promotion decision, and an oral exam counted for 40 percent.

The African-American pass rate on the written exam was roughly half that of the white applicants'. The Hispanic pass rate was lower, and none of the top 19 scorers in the competition for captain and lieutenant positions was African-American. Under civil rights law, this is a "disparate impact" that can be considered evidence of discrimination.

New Haven officials had said they feared that the test results exposed them to a "disparate impact" lawsuit under Title VII of the Civil Rights Act. The white firefighters stressed their own efforts to pass the test. The 34-year-old Ricci, for instance, took additional measures including converting text to tape to overcome his dyslexia.

"There is no evidence that the tests were flawed," Kennedy wrote.

A trial judge initially rejected the firefighters' claims in a 48-page opinion whose reasoning later was adopted by Sotomayor and the two other appellate judges.

"We're quite disappointed in the decision," said John Payton, the head of the NAACP Legal Defense Fund. "It's a step back from the goal of equal employment opportunities."

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