Why Sotomayor rejected the New Haven firefighters' claim.

The law, lawyers, and the court.
May 27 2009 10:49 AM

Bad Test

Sonia Sotomayor rejected the New Haven firefighters' claim because it threatened to burn down civil rights law.

Attorney Karen Torre and firefighter Frank Ricci. Click image to expand.
Attorney Karen Torre and plaintiff Frank Ricci

In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination. His case is now before the Supreme Court in Ricci v. DeStefano. The case is getting extra play because 2nd Circuit Judge Sonia Sotomayor, President Obama's choice to take Justice David Souter's place on the Supreme Court, joined a brief opinion rejecting Ricci's appeal and then voted to deny rehearing of his case. Many commentators have championed Ricci's cause and disparaged Sotomayor for voting against him.

New Haven's decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that's inadvertent as well as intentional. Ricci's claim is that the city's effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).

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This argument would undermine an important part of modern civil rights law. Some of Sotomayor's critics argue that, in the era of Obama, we no longer need such proactive policies to promote racial equality. But racism isn't a thing of the past yet. In fact, we haven't corrected the lingering effects of racism that is in the past. It's precisely because overt racism is no longer the main impediment to racial equality that the law against inadvertent discrimination is arguably now the most important part of civil rights law.

There are two ways an employer can discriminate according to Title VII. He can intentionally discriminate by making race a factor in employment decisions—choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact—in other words, that screens out a particular group for no good reason. New Haven claims that the test it tossed out had a disparate impact. Eight black, 25 white, and eight Hispanic firefighters took New Haven's test for promotion to captain; three black, 16 white, and three Hispanic candidates passed. Nineteen black, 43 white, and 15 Hispanic firefighters took the test to become lieutenant; six black, 25 white, and three Hispanic candidates passed. This result counts as discriminatory under the rules of the Equal Employment Opportunity Commission. New Haven was right to worry about the possibility of a lawsuit from black firefighters if it accepted the results of the tests.

The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam—no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test. More reason for the city to worry about a lawsuit by the African-Americans who were to be passed over.

Conservatives think the law against disparate impact discrimination does more harm than good. For instance, John McWhorter, writing for the New Republic, portrays New Haven's position in Ricci as the latest iteration of the tired argument that standardized tests are "culturally biased" against racial minorities. McWhorter decries the "rhetorical contortions that excuse black people from challenging examinations." And Abigail and Stephan Thernstrom insist in the Wall Street Journal that even "sharp racial disparities" in testing results "are not an argument for racial quotas." Both McWhorter and the Thernstroms worry that a law that is premised on lower performance by racial minorities has become self-fulfilling: Such racial disparities, the Thernstroms admonish, "should not be regarded as a permanent fact of life."

But, properly applied, disparate impact law doesn't excuse poor performance, nor does it require quotas. Instead it smokes out hidden bigotry and requires employers to avoid unnecessary segregation of the work force. Suppose an employer wants to keep women out. Knowing that he can't just put a "women need not apply" sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias. Now, suppose an employer has no desire to discriminate against women but uses a weightlifting test simply because he thinks, all other things equal, stronger employees are better than weaker ones. Disparate impact law also prohibits this: It requires the employer to reconsider job qualifications that favor one race or sex, unjustifiably.

Of course, there might be a good reason to prefer people who are physically stronger—or who score higher on a written exam. The law gives employers a chance to prove that the discriminatory criteria are job-related. The idea, then, isn't to make an employer hire less qualified women or minorities over more qualified men or whites. It's to make sure the employer is testing for job qualifications, not unrelated ones.

Race discrimination has locked minorities into poor neighborhoods with failing schools for generations: As a result, blacks, as a group, continue to perform less well on written exams than other races. Perhaps New Haven's black candidates could overcome these disadvantages by studying harder, like Frank Ricci did. But Ricci took extraordinary steps to ace the test—six months off work to prepare and $1,000 on tutoring. An equal-opportunity law that's premised on everyone taking such steps isn't likely to do much good in the real world of scarce time and money. And would encouraging the equivalent of intense cramming for the final really help employers select the best firefighter for the job?

Prohibiting tests that needlessly screen out underrepresented groups is a sensible way to ensure that employers have both qualified and integrated work forces. That's why Sotomayor and the 2nd Circuit rejected Ricci's claim. The timing of New Haven's decision is what makes it look so bad: It was a cruel bait-and-switch to reject the results after Ricci and others had studied for the exam and done well. But Ricci isn't attacking the timing of New Haven's decision; he's attacking the city for considering the racial impact of the exam. And that's exactly what disparate impact requires an employer to consider. Ricci's position threatens to burn down one of the nation's most important civil rights laws. Even in the improved racial climate of the Obama era, that should set off alarms.

Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.

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