If Frank Ricci Loses, Blame Scalia
Conservative judges are the ones who have made discrimination suits hard to win.
Many conservatives have taken up the cause of Frank Ricci, a New Haven, Conn., firefighter who sued the city, claiming that officials discriminated against him when they rejected the results of a promotion exam, on which he did well, because all but one of the top scoring candidates were white. Ricci's claim is now before the Supreme Court. I've written about it once to explain why Ricci's argument is a threat to an important part of modern civil rights law, and I'm writing again now because a lot of people have suggested that Ricci has been treated unusually and unfairly in the courts. In fact, he's been treated just like any other plaintiff suing for employment discrimination. The anger and frustration of the top-scoring firefighters who expected promotions is understandable. But the outrage on the right is also ironic, because the reason that people who sue for employment discrimination—like Frank Ricci—rarely win their cases is that conservative judges have spent decades making sure they usually lose.
A reverse-discrimination lawsuit like Ricci's is, legally speaking, no different from a conventional discrimination lawsuit. The plaintiff bears the burden of proof on every factual issue. This was firmly established by Justice Antonin Scalia's 1993 majority opinion in a case called St. Mary's Honor Center v. Hicks, in which a black correctional officer, Melvin Hicks, sued for race discrimination after he was demoted and later fired from his job at a halfway house. The plaintiff must first establish some basic evidence that makes it plausible that he was a victim of discrimination—he was fired or turned down for promotion, for example, for reasons that weren't obviously due to his own lack of performance or across-the-board staff reductions. Once a plaintiff makes this showing (as Ricci did), then the typical case proceeds by a process of elimination. If the plaintiff can prove that there was no good reason for his firing or nonpromotion, the law will conclude that the decision must have been discriminatory.
But, as Justice Scalia made clear in Hicks, the employer doesn't have to prove that there was a good reason for its decision; it needs only to claim that there was one. New Haven claimed that it rejected the results of the promotion exam because to eliminate all black and all but one Hispanic firefighter from a chance at promotion, based on their scores, would have violated civil rights law, subjecting the city to a lawsuit by disappointed minority firefighters. (The city's argument is that the exam violated the part of the law that prohibits disparate impact discrimination, which in this context would prohibit the use of a test that screens out black firefighters and isn't more closely job-related than less discriminatory alternatives.) As the district court in Ricci pointed out, it's well-established that the desire to avoid such a disparate impact counts as a nondiscriminatory reason for an employer.
At this point, to keep his case alive, the plaintiff has to prove that the employer's reason is just a pretext: In other words, it wasn't really the reason. It's not enough for the plaintiff to show that the employer was unwise, was unfair, or didn't have its facts straight. Basically, he has to prove that the employer just made up an alibi to hide a discriminatory motive. Accordingly, Ricci can't just show that the exam that New Haven threw out was written by top-notch experts in the field or even that it was the best possible exam to select firefighters for promotion. Ricci would have to show that the city officials didn't really believe—even mistakenly—that promotions based on the test results might violate the law.
Moreover, even if the plaintiff does disprove the employer's proffered alibi, the plaintiff will still lose if the judge or jury decides that the employer acted for a different nondiscriminatory reason from the one that was given. This, too, was established by—you guessed it—Justice Scalia in Hicks. And the employer doesn't even have to have a good reason: As long as the decision didn't involve discriminatory bias, the plaintiff loses. Melvin Hicks' supervisor claimed that Hicks was demoted for poor job performance. Hicks proved that this wasn't true and that the supervisor had a grudge against him. But he still lost because he couldn't prove that the grudge was race-related.
Frank Ricci argued that New Haven refused to certify the exam results because of political pressure to promote blacks from the city's large black community. There is some evidence to support this claim: The exam results led to some political protest. But during its deliberations, the city heard from experts who testified that the exam probably violated the law. So there is evidence to support New Haven's version of the story, too.
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.
Photograph of Justice Antonin Scalia by Alex Wong/Getty Images.