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Sued If You Do, Sued If You Don't

June 29, 2009

By Walter Olson

Does “reverse” discrimination, the kind that New Haven, Conn., practiced so blatantly against its white firefighters, violate the equal protection guarantee of the Constitution? We may never find out, because in Monday’s 5-4 decision in Ricci v. DiStefano, Justice Anthony Kennedy dodged the high constitutional issues entirely to decide the case on a narrower but not uninteresting statutory question: How are employers supposed to behave when they face a possible discrimination lawsuit no matter which way they turn?

It’s a question HR managers and company lawyers are used to facing every day. Would you rather field the legal claims that result from targeted layoffs, or the ones that result from sacking people regardless of performance? Would you rather face a defamation lawsuit for mentioning the reasons for a problem employee’s departure, or a failure-to-warn lawsuit for not mentioning them? Will your policy on religious proselytizing in the workplace get you sued by the believers, or by the atheists? But the courts have no general theory of sued-if-you-do, sued-if-you-don’t scenarios, and often they seem unwilling to give the matter much thought at all. Monday, for a change, these issues took center stage.

As everyone by now knows, New Haven gave its firefighters an officer test that it regarded as fair to minority applicants. But black applicants still did not score as well as whites (though many of both races passed and many others failed). Faced with a civil service requirement to pick from among only the top rankers--and a political outcry from some local minority voices--the city threw out the test results. White applicants proceeded to sue, just as black applicants might well have sued had the city not thrown the results out. Federal judge Janet Arterton, a prominent liberal, dismissed the case on a summary judgment despite a small mountain of evidence attesting the city’s discriminatory intent, and a Second Circuit majority that included Sonia Sotomayor gave the complainants even shorter shrift, merely affirming Arterton’s opinion.

Reverse discrimination suits produce a “Through the Looking Glass” effect, in which some liberal legal thinkers suddenly discover (and, to be fair, some conservatives suddenly forget) that job-bias suits are protracted, expensive things that carry a high social cost. Thus, in Monday’s dissent, Justice Ruth Bader Ginsburg, the Court’s leading advocate of broad employer liability, expresses touching concern for the plight of employers who “can anticipate costly disparate treatment litigation” after the firefighters’ victory. Despite a valiant effort to put the best interpretation on New Haven’s handling of the affair, Ginsburg’s dissent failed to convince Kennedy’s majority even to send the case back to the lower courts, as the Obama administration had urged; instead, the city lost the case outright.

Monday’s crucial ruling is on the question: how serious does the prospect of litigation over an employment practice have to be before an employer is allowed to lean over in the opposite (discriminatory) direction to avoid liability? Justice Kennedy’s majority rejected New Haven’s contention that a “good faith” fear of liability should be enough, but also rejected the firefighters’ contention that reverse discrimination could be justified only to avoid an outright collision between the two legal requirements. Instead, Justice Kennedy selected a middle ground: to discriminate against majority applicants, employers will need a “strong basis in evidence” that they otherwise “would have been liable.”

Even now, The New York Times is no doubt preparing an editorial grimly portending the return of white supremacy at the hands of a callous Court. But the moral is probably a narrower one: If you’re going to shaft white applicants, don’t be as blatant about it as New Haven was. Kennedy was clearly angered by the after-the-fact disavowals and excuses by the city that, in his words, were “blatantly contradicted by the record.” The Court is traditionally unsympathetic to employers that invent “pretextual” reasons for biased decision making; this time that principle happened to cut in an unexpected direction.

Oh, and what about Sonia Sotomayor? Conservative pundits may crow that her position has been repudiated, but it would be more accurate to say that on this issue--with minor, inside-baseball differences--her likely stance, if confirmed, will fit comfortably into the Court’s four-member liberal bloc, a bloc that includes (and included on this issue Monday) the departing David Souter.

Original Source: http://www.forbes.com/2009/06/29/affirmative-action-firefighters-opinions-contributors-walter-olson.html

 

 
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