The New Haven firefighter is no stranger to employment disputes.
Republicans on the Senate Judiciary Committee have announced that Frank Ricci, the firefighter who recently prevailed in his "reverse discrimination" lawsuit against the city of New Haven, Conn., will testify at Sonia Sotomayor's confirmation hearings. Ricci has become a sort of folk hero for white men everywhere, having dared to stand up against the evils of affirmative action and race-based employment preferences. Next week, he will be called on to make the point, as David Paul Kuhn put it, that Sotomayor, for all her talk of empathy and the real-world impact of judicial decisions, "demonstrated no empathy for the 'real-world consequences' of affirmative action on Ricci."
Ricci is invariably painted as a reluctant standard-bearer; a hardworking man driven to litigation only when his dreams of promotion were shattered by a system that persecutes white men. This is the narrative we will hear next week, but it somewhat oversimplifies Ricci's actual employment story. For instance, it's not precisely true, as this one account would have it, that Frank Ricci "never once [sought] special treatment for his dyslexia challenge." In point of fact, Ricci sued over it.
According to local newspapers, Ricci filed his first lawsuit against the city of New Haven in 1995, at the ripe old age of 20, for failing to hire him as a firefighter. That January, the Hartford Chronicle reported that Ricci sued, saying "he was not hired because he is dyslexic." The complaint in that suit, filed in federal court, alleged that the city's failure to hire Ricci because of his dyslexia violated the Americans with Disabilities Act. Frank Ricci was one of 795 candidates interviewed for 40 jobs. According to his complaint, the reason he was not hired was that he disclosed his dyslexia in an interview. That case was settled in 1997 with a confidential settlement in which Ricci withdrew his lawsuit in exchange for a job with the fire department and $11,143 in attorney's fees.
In 1998, Ricci was talking about filing lawsuits again, this time over a dispute with his new employer, Middletown's South Fire District—which had hired him in August of 1997. According to a Hartford Courant report of Aug. 11, 1998, Ricci was dismissed from the Middletown fire department after only eight months. He promptly appealed his dismissal, claiming that fire officials had retaliated against him for conducting an investigation into the department's response to a controversial fire. A story in the Hartford Courant dated Aug. 9, 1997, has Ricci vowing "to pursue this to the fullest extent of the law."
In August of 1998, a state Department of Labor investigation cleared Chief Wayne S. Bartolotta of any wrongdoing in the firing. The Aug. 3, 1998, letter from the state Department of Labor indicated that the case was closed with a finding of no violation. "After a thorough investigation, it was determined that the South Fire District did not discriminate against Mr. Ricci." Ricci's response? According to the Courant, Ricci contended "Their decision was political, it has nothing to do with who was right and who was wrong." He told the paper he would "pursue the matter in civil court."
Ricci also tried to discredit his former boss, Chief Bartolotta, by disparaging his professional credentials. His fight over access to Bartolotta's professional training records was resolved between the two of them a week before the matter was slated to be taken up with the state Freedom of Information Commission, according to a Jan. 13, 1998, report in the Hartford Courant.
Eventually, Ricci made his way back to the New Haven Fire Department, where he famously aced his promotions test, then sued, yet again, in 2004.
Ultimately, there are two ways to frame Frank Ricci's penchant for filing employment discrimination complaints: Perhaps he was repeatedly victimized by a cruel cadre of employers, first for his dyslexia, then again for his role as a whistle-blower, and then a third time for just being white. If that is so, we should all be deeply grateful for the robust civil rights laws that protect Americans from unfair discrimination in the workplace. I look forward to hearing Republican Sen. John Cornyn's version of that speech next week.
The other way to look at Frank Ricci is as a serial plaintiff—one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command. That's not the typical GOP heartthrob, but I look forward to hearing Sen. Cornyn's version of that speech next week as well.
When Frank Ricci testifies against Judge Sotomayor, it will be worth recalling that under any other set of facts he would have looked to his GOP sponsors like the kind of unscrupulous professional litigant Rush Limbaugh lives to savage. Is America's conservative movement really ready for an anti-affirmative action hero who has repeatedly relied on the government to intervene on his behalf to win him—and help him keep—a government job?
Dahlia Lithwick writes about the courts and the law for Slate.