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Analysis: Ricci, without the rhetoric


The cases of Frank Ricci and his 17 New Haven, Conn., firefighter colleagues — all whites except one Hispanic — now return from the Supreme Court to lower courts, with only one thing settled: their rights under a federal civil rights law were violated.

The Court’s ruling in Ricci, et al., v. DeStefano, et al. (07-1428) and a companion case with the same name (08-328) says nothing at all about a remedy for that violation, and leaves a host of questions to be answered.

Although the Court decided that city officials in New Haven violated Title VII of the federal civil rights law by failing to promote any firefighters to seven slots for captain and eight slots for lieutenant, it is not clear how many slots are open now — whether more or fewer — and it is uncertain whether the lists of promotions that were to be made from the results of the test in the fall of 2003 remain intact.

The decision does not guarantee an individual firefighter, by name, that he will become a captain or a lieutenant in New Haven.  And, while the winners of this lawsuit may very well claim that the denial of promotions entitles them to back pay, or even to money damages, the Court did not address any such claim, leaving it for further exploration by other judges.

While the Court seems to have said that, if an employer — public or private — conducts hiring or promotion tests that are legally sound, those who score highest and meet other selection factors cannot be denied a job or a promotion because of race, the decision does not say that the employer has any duty to avoid closing off jobs or the promotions so that no one is chosen (so long as it does not do so for racial reasons).

No duty, whatsoever, to keep slots open is imposed, although it may be doubted whether many employers would alter their payrolls to eliminate job opportunities just to keep from losing a lawsuit.

The decision did make some things clear, and that will influence what can happen next in the New Haven case, in particular.  And there are conclusions in the ruling that definitely will apply to other cases, in court now or in the future, involving claims of racial bias in job placement.

First, the Court ruled that the tests used for firefighter promotions in New Haven were legally valid.  Second, it ruled that city officials there had failed to show that there were any alternative tests that could have had less of a negative impact on minority test-takers.  Third, it ruled that the city had not shown that it had a genuine fear of being sued by minority firefighters if it gave most of the promotions off the 2003 tests to whites.  And, fourth, it appeared to rule that, even if the city goes ahead and uses the test results to promote whites for most or all of any open slots, minority firefighters will have no legal complaint that they were victims of discrimination because the city can claim that it had to make promotions to avoid violating Title VII’s protection for the whites who scored best.

For other cases, the Court’s ruling applies to Title VII cases a concept borrowed from race cases under the Constitution — that is, that using a race-based selection criterion will be allowed only if it is shown, by “a strong basis in evidence,” to be clearly necessary to remedy past racial discrimination.

When applied in a case involving a job test that seems to favor whites over minorities, this standard will require the employer to accept the results and implement them unless it can offer “objective” and “strong” evidence that the test was illegal because it was skewed to work against minorities, and unless it can offer “objective” and “strong” evidence that implementing the results will almost certainly bring on a lawsuit by minorities and that is probably would lose that lawsuit.

It will not be enough, the Court made clear, that the employer had a “good faith” belief that the test was skewed against minorities, or a “good faith” fear that it will get sued if it implements the results.

The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean.  In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.

Among the large questions that did not get addressed at all, perhaps the most significant was whether government employers, even if they have a “strong basis in evidence” that they think will justify making a race-based job selection, will escape liability under the Constitution.

The Court said explicitly that it was not ruling on the question of whether compliance with that standard would satisfy the Constitution’s command of racial equality — in other words, whether a government employer genuinely worried that accepting test results would work against minorities can escape a constitutional violation if it casts aside the results and thus shuts out whites who scored better.

(The constitutional uncertainty only affects government, not private employers, because only government employers are bound by the Constitution.)