Read more from Slate's coverage of Sonia Sotomayor’s nomination.
The most curious aspect of Judge Sonia Sotomayor's record on the bench is the brief, unsatisfying, and unsigned opinion she joined in Ricci v. DeStefano, the fight between the city of New Haven, Conn., and some of its white firefighters that is this year's major Supreme Court battle over racial discrimination and civil rights law. Sotomayor was one of three judges on the panel that ruled in favor of New Haven, which threw out a test designed to determine 15 firefighter promotions to captain and lieutenant. The city discarded the test and froze the promotions after no African-American candidates, and only two Hispanics, scored high enough to get the captain and lieutenant positions. (The city says it scrapped the test to avoid a potential lawsuit from black and Hispanic firefighters.) The ruling has attracted much scrutiny because it rejected white firefighters' claims of reverse discrimination and also because its scant single paragraph did not grapple with the big constitutional questions the case raises.
Why did the panel fail to explain itself? The more I learn about the 2nd Circuit, the more I wonder whether the differing views of the three judges led to the odd-seeming opinion in Ricci. Another appeal Sotomayor participated in, also about a discrimination claim, illustrates how a meaty case can be relegated to the secondary status of a summary, unsigned opinion. This case, like one about police power I wrote about last week, shows Sotomayor exercising her powers of persuasion with two of her colleagues who are more conservative than she is.
In Miller v. New York, Gregory Miller sued the city of New York, which he worked for, in the Department of Transportation. After he was disabled in an accident on the job, Miller was transferred to a desk job; then later he was transferred back into the field. At that point, Miller says, his supervisor discriminated against him on the basis of sex by calling him not a "real man" or a "manly man" and, to "toughen him up," by coming up with work assignments Miller shouldn't have been asked to do because of his disability. According to Miller, whom the court describes as "a small, non-muscular man," his supervisor made him do heavy lifting and truck work, even though his disability prevented him from doing either. Miller argued that his supervisor's unfair treatment made him reinjure himself and forced him out of his job.
The essence of Miller's sex discrimination claim, based on the federal civil rights law Title VII, is that "he was verbally harassed and made to perform 'active duty' work because he deviated from 'normal gender stereotypes' according to which men are expected to be muscular and macho." A co-worker testified that Miller's supervisor did indeed "assign different tasks to male and female employees, sending the female employees on errands and yelling at the men."
It's clear from the court documents that Miller is gay. This initially hurt him in court. Title VII doesn't cover discrimination on the basis of sexual orientation, which means that mistreating an employee because he is gay generally doesn't violate federal civil rights law (though some states have their own protections for gay workers). The district judge who presided over Miller's case saw it through the lens of his homosexuality and dismissed his complaint.
When the case came up to the U.S. Court of Appeals for the 2nd Circuit in 2006, the three judges on the panel were Sotomayor; Jose Cabranes, a Carter appointee; and Reena Raggi, appointed by George W. Bush. Sotomayor, according to the court observers I talked to, saw the appeal as a clear win for Miller. In her view, a jury could find that Miller had been discriminated against not merely because he was gay but also because, given his physique and frailty, he wasn't the "manly man" his supervisor was looking for.
The other two members of the panel were less sure of the outcome, with Raggi seeming more troubled by Miller's legal theory. Of particular concern was whether a ruling in his favor might go too far in expanding the idea that a Title VII discrimination case can be rooted in sex stereotyping. That theory comes from the well-known Supreme Court ruling in Price Waterhouse v. Hopkins. The case was about a woman who didn't get promoted at the accounting firm after male partners said she was too "macho" and should go to "charm school" and act more feminine. The Supreme Court said that in a discrimination case, "stereotyped remarks can certainly be evidence that gender played a part" when an employee is treated unfairly at work.