If Frank Ricci loses his discrimination claim, blame the Supreme Court's conservatives.

The law, lawyers, and the court.
June 16 2009 1:57 PM

If Frank Ricci Loses, Blame Scalia

Conservative judges are the ones who have made discrimination suits hard to win.

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What if the city rejected the exam results to comply with civil rights law and to cater to political activists who were pressing for more black promotions? A plaintiff can win such a "mixed motives" case—but that is a distinct legal claim, and Ricci didn't argue it at trial. As a result, Sotomayor and her colleagues on the appeals court couldn't consider what might have been Ricci's best argument. The Supreme Court shouldn't really, either, though in the end the justices can do pretty much whatever they want.

Even if Ricci could make a "mixed motives" argument, he probably wouldn't win with it. When an employer may have both legitimate and discriminatory reasons for a firing or a decision not to promote, the plaintiff must prove that it was the discriminatory rationale that actually caused the decision. In the case that established this rule, Price Waterhouse v. Hopkins, the plaintiff, Ann Hopkins, who was passed over for promotion, easily established that sexism was a problem in her large accounting firm and for her in particular. But according to Justice Sandra Day O'Connor, Hopkins won only because she could prove that thepartners who made the decision to deny her a promotion were motivated by sexism. Ricci, for his part, would have to show that the New Haven officials who rejected the exam result did so, at least in part, because of political pressure.

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Ricci also sued the city for violating his right to equal protection of the laws under the 14th Amendment to the Constitution. As in an employment discrimination claim, to prove a violation of equal protection the plaintiff must show that discriminatory motives caused the employer's decision. For instance, in the 1977 Supreme Court case Arlington Heights v. Metro Housing Development Corp., the city rejected a low-income housing development in a politically charged atmosphere where some opponents voiced concern about racial integration. But because there were also legitimate reasons for the city to reject the development and no hard proof that the city officials who rejected it did so because of race, the plaintiffs lost.

Of course, the Supreme Court may hold that New Haven's attempt to comply with civil rights law is itself race discrimination under federal law or under the Constitution. As I've argued, such a holding would threaten to burn down civil rights law by punishing employers for trying to avoid discrimination. But if the court does adopt this position, Ricci's case would be much stronger. The court would in effect treat New Haven's decision to throw out the test results as an affirmative-action policy, which New Haven would have to defend. Affirmative action is legal under employment discrimination law only if the employer can prove that it is designed to correct a "manifest imbalance" in the racial composition of its workforce. And race-based affirmative action is legal under the Constitution only if it is narrowly tailored to serve a compelling governmental interest. While there is detailed precedent for applying this standard in the context of government contracting and school admissions, it is not clear what it would require in the context of employment.

So far, however, no court has held that an employer's good-faith attempt to avert discrimination against one group constitutes discrimination against another. Under existing law, Frank Ricci is simply one of many of frustrated plaintiffs with plausible claims of discrimination that they can't prove. Judge Sonia Sotomayor, for her part, wasn't hostile to Ricci's claim in particular: In fact, she voted against the plaintiffs in 78 out of 96 other discrimination cases she heard as an appellate judge. That's a margin of 8-to-1. So if you're angry that Frank Ricci has had such a hard time in court so far, don't blame the judges like Sotomayor who applied the law. Blame the Supreme Court justices who made it.

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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