Court rules for white firefighters over promotions

WASHINGTON – The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.
New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.
The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.
"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."
Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.
Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.
But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.
"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.
Sen. Patrick Leahy, chairman of the Judiciary Committee, said Sotomayor should not be criticized for the unsigned appeals court decision, which he asserted she did not write. "Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent," said the Vermont Democrat who will preside over Sotomayor's confirmation hearings next month.
Leahy also called the high court decision "cramped" and wrong.
In New Haven, Nancy Ricci, whose son, Frank, was the lead plaintiff on the lawsuit, carried a large cake decorated with red, white and blue frosting into the law office where the firefighters were celebrating their victory.
Ricci's father, Jim Ricci said the ruling is a victory for firefighters across the country. "Now we're going to get the best managers as far as firefighters go. That's really important," Ricci said.
Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.
Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.
The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.
The white firefighters said the decision violated the same law's prohibition on intentional discrimination.
Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.
The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.
"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."
But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.
Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.
"Today's decision sets these paired directives at odds," she said.

Its about time. Always hire for ability and you will never go wrong.

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Dammit, you beat me to it. Heard it at 8:01 local time on the radio. A little over a half hour ago on my way home from work. Yes liberals, before Rush or Sean could tell me how to think.

I was going to find the Sodomyer thread, and add it there however.

Umm.. I don't think anybody was hoping for otherwise. It was pretty apparent that this was going to be reversed. Good.

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Originally Posted by sam1617

Its about time. Always hire for ability and you will never go wrong.

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Well, some people and judges seem to thing it's fair to ignore the most qualified when he or she not a black.

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Originally Posted by Wild Cobra

A little over a half hour ago on my way home from work. Yes liberals, before Rush or Sean could tell me how to think.

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:lol ok then... tell me how you think this will effect her bid for SC. Should it hold a lot of water?

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Originally Posted by jman3000

:lol ok then... tell me how you think this will effect her bid for SC. Should it hold a lot of water?

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People will bring it up, it will be relatively ignored. In the end, I suspect that this will prove some talking points, but unless people provide a pattern of poor decision making, which IMO she likely has (after all, its someone Obama likes, they've all been bad so far :lol), then it won't be enough to stop her appointment.

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Originally Posted by jman3000

:lol ok then... tell me how you think this will effect her bid for SC. Should it hold a lot of water?

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I think so, but not as much as I'd like. This was a very bad decision, but four of the SC agreed with her. I'm not going to take the time right now to explain why, except the decision of the Fire department was obviously race motivated, and factually shown as such. I'm like to say I'm surprised it wasn't a unanimous decision, but I'm not.

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The irony of using Ricci against Sotomayor has always been that the reason this case resonates for so many people is due to empathy for the white firefighters.

That irony is underscored by today's ruling, as Justice Kennedy devotes multiple paragraphs at the beginning of his opinion to highlighting all of the facts (as opposed to legal arguments) which make people sympathetic to Ricci. Conversely, Justice Ginsburg, writing for the dissenters, noted upfront that the white firefighters "understandably attract this Court's sympathy," but it must be the law -- i.e., long-standing legal precedent and the purpose of Title VII of the Civil Rights Act -- which determines the outcome.

From the start, those protesting Sotomayor's decision in Ricci did so by appealing not to law, but to emotion, non-legal precepts of "fairness" and empathy -- at the very same time that those very same people mocked the notion that those considerations should play any role in judicial decision-making

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http://www.salon.com/opinion/greenwa...cci/index.html

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Originally Posted by Winehole23

http://www.salon.com/opinion/greenwa...cci/index.html

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From the start, those protesting Sotomayor's decision in Ricci did so by appealing not to law, but to emotion, non-legal precepts of "fairness" and empathy -- at the very same time that those very same people mocked the notion that those considerations should play any role in judicial decision-making

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I like the way you verify information. How much do you rely on that liberal propaganda site?

There were clear reports otherwise. I'm sure the media hyped up the parts they wanted, but the case did revolve around the law. Sodomyer did like any responsible activist judge would, and found a way to rule with agenda based ideals.

She's going to be on the SC, so what's the big deal?

It's fairly clear Sotomayor relied on legal precedent in Ricci.

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Originally Posted by Wild Cobra

How much do you rely on that liberal propaganda site?

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I rely on Greenwald for his fearless criticism of Obama, for example. His concern about civil liberties in the USA didn't go into dormancy after election day.

At least Alex Koppelman make a more accurate article. In War Room, part of the 6/29 entry:

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The case stems from a test given to firefighters in New Haven, Conn., who were seeking promotion; the results of the test would have meant 13 out of 15 available promotions would go to whites, two to Hispanics and none to African Americans. Because of the lack of racial balance, the city elected to throw out the test and try to come up with some more equitable system.

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Such affirmative action cases everywhere in the past several years have clearly set the precedent that such actions are out right illegal.

Too bad the appeals courts aren't as smart as you.

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Originally Posted by Justice Kennedy

Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below,because respondents have not met their burden underTitle VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.

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I've been reading the ruling also. I didn't read that point, but I'll bet it was referring to having to show cases that could not be shown. Here are some things I noted:

Here is the Supreme Court decision:

RICCI ET AL. v. DESTEFANO ET AL. Selected passages:

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Petitioners, white and Hispanic firefighters who passed the exams but were denied a chance at promotions by the City’s refusal to certify the test results, sued the City and respondent officials, alleging that discarding the test results discriminated against them based on their race in violation of, inter alia, Title VII of the Civil Rights Act of 1964. The defendants responded that had they certified the test results, they could have faced Title VII liability for adopting a practice having a disparate impact on minority firefighters. The District Court granted summary judgment for the defendants, and the Second Circuit affirmed.

Held: The City’s action in discarding the tests violated Title VII. Pp. 16–34.

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Contrary to the Salon article you didn't verify facts on, they did cite law. Title VII and the 14th amendment.

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(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 26–34.

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The above is where the exception of you quote doesn't work with this case.

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Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based onthe strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34.

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The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in violation of both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment.

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Scalia underlines the tension between "disparate impact" and "equal protection. (pp.39-41)

Alito accuses New Haven of bad faith; using Title VII as a fig leaf for racial quotas.(p 42)

Ginsberg, writing for the minority suggests the New Haven commissioners had good reason to think the first test was flawed. (She also slams the majority's equal protection precedents as *inapposite*, and suggests their strong basis in evidence standard is arbitrary.) (p. 55)

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In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination“because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.

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I read enough of the majority opinion, and skipped to the dissent long before finishing it. I cannot believe how laughable Ginsberg starts this. Here is one passage:

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The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local govern-ment employers in 1972, Congress took note of a U. S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92– 238, p. 17 (1971). According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles.

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My God. If she goes on like this, she is a more serious problem than I thought. She is justifying illegal means to rectify past wrongs. Apply the past to the present. I hope she starts to make sense at some point.

An interesting take on this:

http://www.slate.com/id/2220927/entry/2221759/

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Moreover, reading the opinions makes clear that the court's five-justice majority is adopting a new standard. Justice Kennedy's opinion for the court says, "For the foregoing reasons, we adopt the strong-basis-in-evidence-standard … to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII." Both the majority and dissenting opinions seem to agree that this represents the adoption of a new standard. (Justice Ginsburg, speaking in dissent from the bench, called it "novel.") As a court of appeals judge, Sotomayor was obligated to apply the law at the time of her decision. She did so.

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Originally Posted by Winehole23

Ginsberg, writing for the minority suggests the New Haven commissioners had good reason to think the first test was flawed. (She also slams the majority's equal protection precedents as *inapposite*, and suggests their strong basis in evidence standard is arbitrary.) (p. 55)

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Yes, but other cited law makes it clear that the test must be shown to be flawed rather than assumed before it can be thrown out. The facts outlined say that this was never done.

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Originally Posted by LnGrrrR

An interesting take on this:

http://www.slate.com/id/2220927/entry/2221759/

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Moreover, reading the opinions makes clear that the court's five-justice majority is adopting a new standard. Justice Kennedy's opinion for the court says, "For the foregoing reasons, we adopt the strong-basis-in-evidence-standard … to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII." Both the majority and dissenting opinions seem to agree that this represents the adoption of a new standard. (Justice Ginsburg, speaking in dissent from the bench, called it "novel.") As a court of appeals judge, Sotomayor was obligated to apply the law at the time of her decision. She did so.

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Please, search what your are reading before you quote someones propaganda. That passage goes on to say:

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As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.

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My personal feeling is there's a good faith legal dispute here, albeit one with real world, political consequences. There's highly plausible arguments on both sides IMO. That's part of why a case like this reaches the SC.

Even if one side or the other (or both) are *agenda driven* at heart, neither side's pleading strikes me as incompetent or even as obviously biased.

Ginzberg:

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Only one of the Department’s 21 fire captains is African-American. See App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter CA2 App.). It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed.

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Look at what this crazy libtard is saying. She is clearly dissenting for racial reasons, not reasons of merit.

Well, you seem to have made up your mind well before finishing.

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Originally Posted by Wild Cobra

Please, search what your are reading before you quote someones propaganda. That passage goes on to say:

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Hey, I'm not a lawyer. Most of this stuff goes way above my head. I just thought it was interesting, in the sense that they might adopted a 'new standard' as it were, to clear up confusion.

I'm not qualified enough to know who was in the wrong/right.

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Originally Posted by Winehole23

Well, you seem to have made up your mind well before finishing.

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I get tired of assumptions. I said I read enough of the majority opinion to see a solid reason for the case. I never said I stopped reading the dissent. I'm still reading it. I have pointed out two clearly wrong items in the dissent. I have countered the reasons people say the opinion was on. I am strongly set on the majority view, yes. Nothing the minority view has said makes sense in light of the facts stated so far.

Please...

Show me a passage of Ginzburg's that isn't real well countered already in the majority opinion.

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Originally Posted by Wild Cobra

Please, search what your are reading before you quote someones propaganda. That passage goes on to say:

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Hey, I'm not a lawyer. Most of this stuff goes way above my head. I just thought it was interesting, in the sense that they might adopted a 'new standard' as it were, to clear up confusion.

I'm not qualified enough to know who was in the wrong/right.

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Originally Posted by Wild Cobra

I have pointed out two clearly wrong items in the dissent.

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How can you say Ginzberg's conclusions are wrong before you have read her argument for them?

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Originally Posted by Wild Cobra

Nothing the minority view has said makes sense in light of the facts stated so far.

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Odd that every previous court agreed with them.

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Originally Posted by Wild Cobra

Show me a passage of Ginzburg's that isn't real well countered already in the majority opinion.

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OK.

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The Court’s decision in this litigation underplays a dominant Title VII theme. This Court has repeatedly emphasized that the statute “should not be read to thwart” efforts at voluntary compliance. Johnson, 480
U. S., at 630. Such compliance, we have explained, is “the preferred means of achieving [Title VII’s] objectives.” Firefighters v. Cleveland, 478 U. S. 501, 515 (1986). See also Kolstad v. American Dental Assn., 527 U. S. 526, 545 (1999) (“Dissuading employers from [taking voluntaryaction] to prevent discrimination in the workplace is di-rectly contrary to the purposes underlying Title VII.”); C29FR §1608.1(c).

The strong-basis-in-evidence standard,however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture.

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—even for surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulate an employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or

(2) that it refused to adopt “an equally valid, less-discriminatory alternative.” Ante, at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself .

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The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strong-basis-in-evidence standard. When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance.See, e.g., Johnson v. California, 543 U. S. 499, 515 (2005); Pullman-Standard v. Swint, 456 U. S. 273, 291 (1982). I see no good reason why the Court fails to follow that course in this case. Indeed, the sole basis for the Court’s peremptory ruling is the demonstrably false pretension that respondents showed “nothing more” than “a significant statistical disparity.” Ante, at 27–28; see supra, at 24, n. 8. 9

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Originally Posted by LnGrrrR

I'm not qualified enough to know who was in the wrong/right.

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You're qualified enough to know that WC isn't a lawyer and just *might be* full of it.

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Originally Posted by LnGrrrR

I'm not qualified enough to know who was in the wrong/right.

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Sure you are, its easy to qualify whats morally wrong and right. Its much harder to qualify what is legal or illegal. IMO, the Supreme Court made the morally correct judgment, and thats good enough for me, especially since I think Title VII is outdated, and at the least needs to be seriously reworked...

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Originally Posted by Winehole23

You're qualified enough to know that WC isn't a lawyer and just *might be* full of it.

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Yes, but I'm not interested enough to do the research required to make that claim. Besides, after blasting Viva last week, he/she merely spouted the same inane nonsense. Not very satisfying.

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Originally Posted by Winehole23

How can you say Ginzberg's conclusions are wrong before you have read her argument for them?

Odd that every previous court agreed with them.

OK.

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I said I read far enough that two of her points were clearly wrong. The prior courts, I don't know why they ruled wrong. A layman like myself knew from the start the case should have never been this far, that the city was wrong. As for this sentence:

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Dissuading employers from [taking voluntary action] to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII

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Where the fuck does that come from? If you took the time to read the majority opinion, it clearly points out that the test was vetted real well to make sure it wasn't discriminatory. She makes an incorrect argument that I can only see as outcome based.

I'm done with this for today. Been up all night working, and I'm losing focus. I suggest you read the majority opinion. I finished Ginzburg's material, and none of it persuaded me.

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Originally Posted by sam1617

Sure you are, its easy to qualify whats morally wrong and right. Its much harder to qualify what is legal or illegal. IMO, the Supreme Court made the morally correct judgment, and thats good enough for me, especially since I think Title VII is outdated, and at the least needs to be seriously reworked...

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Yes, legal/illegal probably would have been more correct. Honestly, I haven't reviewed this case much to determine which way I think it should have gone.

Quote:

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Originally Posted by sam1617

Sure you are, its easy to qualify whats morally wrong and right. Its much harder to qualify what is legal or illegal. IMO, the Supreme Court made the morally correct judgment, and thats good enough for me, especially since I think Title VII is outdated, and at the least needs to be seriously reworked...

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It's nice to see some *empathy* on the bench, isn't it?

So regarding what WH23 posted...

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Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or

(2) that it refused to adopt “an equally valid, less-discriminatory alternative.” Ante, at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself .

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Does this ruling only apply to government hirings, or all hirings?

If all, isn't there some stress between what this court declares and 'right-to-work' type states?

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Originally Posted by Wild Cobra

If you took the time to read the majority opinion, it clearly points out that the test was vetted real well to make sure it wasn't discriminatory. She makes an incorrect argument that I can only see as outcome based.

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Whereas I think there can be a reasonable disagreement about this. If Ginzberg disagrees with the majority analysis does not mean she has not read or understood it. Believe it or not, all three are possible at the same time.

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Originally Posted by Wid Cobra

I finished Ginzburg's material, and none of it persuaded me.

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I wasn't persuaded by either side, frankly. The legal dispute is a little arcane for me.

But your unwillingness to grant any plausibility to the minority, and your quickness to give credibility to the majority in toto, does not do justice to the difficulty of the case IMO and raises questions about your fairmindedness.

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Originally Posted by LnGrrrR

Does this ruling only apply to government hirings, or all hirings?

If all, isn't there some stress between what this court declares and 'right-to-work' type states?

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You should PM FWD. I can't answer a question like this, LNGR. I'd just be making it up.

Ilya Somin @ Volokh.

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Originally Posted by LnGrrrR

Yes, legal/illegal probably would have been more correct. Honestly, I haven't reviewed this case much to determine which way I think it should have gone.

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Look at it this way if you wish not to read all the fine details.

1) The city spent money for a new testing procedure that was thoroughly tested before implemented. Just part of the process:

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IOS assembled a pool of 30 assessors who were superior in rank to the positions being tested. At the City’s insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials for approval. They were battalion chiefs, assistant chiefs, and chiefs from departments of similar sizes to New Haven’s throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members. IOS trained the panelists for several hours on the day before it administered the examinations, teaching them how to score the candidates’ responses consistently using checklists of desired criteria.

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2) The contract required an aftermath analysis which the city never allowed, but dropped the test results because of the outcome. The city could only have a case if the aftermath results could show a problem. They purposely remained ignorant to the aftermath results. In remaining ignorant to the reasons the results were as they were, they screwed their own case.

3) The tests result percentages were in line with past testing methods, that they were attempting to correct with the new test.

4) The numbers of minority blacks taking the test and not making the cut were statistically insignificant because of the sample size.

You like the conclusion, so you support the reasoning. Your haughty dismissiveness of the minority view only underscores your bias.

As you said, this case was intuitively clear to you from the outset. You stopped your ears to any contradictory view a long time ago.

You presume the premises laid out by the majority are correct, because they agree with your own prejudgment of the case.

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Originally Posted by Winehole23

You like the conclusion, so you support the reasoning. Your haughty dismissiveness of the minority view only underscores your bias.

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The minority view was outcome based, and they tried to cover it in law.

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Originally Posted by Winehole23

As you said, this case was intuitively clear to you from the outset. You stopped your ears to any contradictory view a long time ago.

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That's because I have seen several rulings on other cases surrounding the illegal use of affirmative action.

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Originally Posted by Winehole23

You presume the premises laid out by the majority are correct, because they agree with your own prejudgment of the case.

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No, because it is factually sound, by law.

Interesting (@11:43):

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Actually, since it was 9-0 to overrule the disposition of the Appeals Court, and only 5-4 on the final disposition, I think this very well might have an impact on the confirmation. The dissenters wanted to remand the case as they too thought that the district and appeals court decision to grant summary judgement to the city was wrong. And the 39 pages in the dissent was NOT to support the action taken either by the district court or the panel lead by Sotomayor, but rather to refute the majorities decision to grant final dispositon in the case in favor of the firefighters.

This was NOT a no brainer of a case, and all 9 justices fully aggreed that major issues deserving of significant treatment were raised by the court. It hard to see even the dissent in this case NOT be a significant repudiation of Sotomayor's handling of the case.

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Originally Posted by Wild Cobra

The minority view was outcome based, and they tried to cover it in law.

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By your bare assertion. And you are liable to the countervailing assertion. In fact, NPR's coverage lodges a claim of *judicial activism*. The novel rule proposed by the majority superficially gives color to the charge.

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Originally Posted by Wild Cobra

That's because I have seen several rulings on other cases surrounding the illegal use of affirmative action.

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You admit you stopped listening to one side early on? Well and good. I commend your honesty.

Another thing, are you sure all the other cases are legally germane?

Remember, WC, you're just a layman...don't pretend you know the answer any better than me.

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Originally Posted by Wild Cobra

No, because it is factually sound, by law.

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More fiat. Expecting something more than bald opinion from you wasn't realistic, I guess.

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Originally Posted by Winehole23

Ilya Somin @ Volokh.

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Thanks WH23, this article is right along what I was thinking.

As stated, it seems to be something conservatives should be AGAINST. Most conservatives seem to want to support the right for employers to fire an employee, even for unfair reasons.

This would seem to limit their ability to do so, but I'm not sure how strong that ability was beforehand anyways.

I wonder what 101A, or others who own businesses, would think about this possible outcome:

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If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities. But if the business adopts race-conscious measures to try to shield itself from liability (e.g. - by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to "disparate treatment" lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.

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Any business owners willing to throw in 2 cents?

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Originally Posted by Winehole23

You admit you stopped listening to one side early on? Well and good. I commend your honesty.

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Go back and read what I said. I said I stopped reading the majority opinion because I already saw what they were clearly saying. I went on to say I read all of Ginzburg's material. I was looking for that possibility that my initial reactions to all this were wrong. I didn't find anything to pursued me. I did keep an open mind. What do you think of this:

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Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

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From the comments:

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There should be a safe harbor provision.

Perhaps businesses could submit their plans to an agency to approve them. (The agency would be appointed by the government, but would be paid for by businesses. The government would defend lawsuits).

Or, maybe, in cases like these, the parties with an interest (those promoted and those not promoted) can sue each other and the employer could just look on and take the result.

The current system is unfair to employers. Not having some system would likely lead to discriminatory conduct. A happy medium should be found.

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By seeking to avoid disparate impact, the employer risks disparate treatment. Moreover, this hazard is imposed on him as a matter of law. A very difficult situation.

Made apparently more difficult by the strong basis in evidence standard. In order to set aside a promotion related test because of prima facie disparate impact, the employer might have to establish "a provable, actual violation against itself."

Quote:

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Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

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I'm inclined to read this as a rebuke of the lower court holdings, that they ignored triable issues. Some members of the minority were in favor of vacatur and remand for rejudgment. But I'm no expert.

The minority's repudiation of sympathy in favor of legal analysis also stands out.

Quote:

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Originally Posted by Winehole23

From the comments:
By seeking to avoid disparate impact, the employer risks disparate treatment. Moreover, this hazard is imposed on him as a matter of law. A very difficult situation.

Made apparently more difficult by the strong basis in evidence standard. In order to set aside a promotion related test because of prima facie disparate impact, the employer might have to establish "a provable, actual violation against itself."

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If you read more on the subject, you find that there has to be a reasonable sample size to have the proper statistics for such a claim. This ruling may have been different if the number of firefighters were large enough for a statistical significance, assuming the percentages were still similar.

Quote:

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Originally Posted by Wild Cobra

If you read more on the subject, you find that there has to be a reasonable sample size to have the proper statistics for such a claim. This ruling may have been different if the number of firefighters were large enough for a statistical significance, assuming the percentages were still similar.

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Legally speaking? Justice bows to statistical propriety? Interesting...

...

Quote:

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Originally Posted by Winehole23

Legally speaking? Justice bows to statistical propriety? Interesting...

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No, its simple statistics. Why would they have to point that out anyway. It was listed in one of the source materials I read. In the case of the promotion to captain's list, a change from 3 to 4 passing the test changes the results from 37.5% to 50% for blacks. If 5 had passed the test, the percentage would have been larger than the white percentage. When a change of 1 or 2 makes a significant difference, what good is it? Such small samples cannot qualify for the 80% rule, because statistically, they have a large error factor.

Says you.

My question is, how does a test get 'certified', as it were, to be race-neutral?

Quote:

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Originally Posted by LnGrrrR

My question is, how does a test get 'certified', as it were, to be race-neutral?

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I doubt neutrality can be established at all.

I'm beyond my depth here. I know fuck-all about civil service.



Maybe you should ask WC. He seems to know all about it.

:lol at all you trying to make a 5-4 SCOTUS decision look clear cut.

Quote:

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Originally Posted by LnGrrrR

My question is, how does a test get 'certified', as it were, to be race-neutral?

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It's really hard to tell.

Something as objective as tying a shoe lace can be found to have bias.

I read a study in which a researcher asked 100 black, white, and hispanic 6 year olds, all of which supposedly had normal IQ's, to tie their shoes. It turned out that most of the blacks could, some of the hispanics could and very few of the whites could.

Turns out the black kids grew up tying their own because a lot of times their parents weren't around to do it for them and the whites were used to having them tied for them.

There are all these weird quirks that make up our social beings. I would think that a fire man's test would be able to be race neutral.. because the things you have to know as a fireman are pretty much all taught... none of it is really things you pick up as you grow.

Quote:

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Originally Posted by spurster

:lol at all you trying to make a 5-4 SCOTUS decision look clear cut.

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Laughing at you, for not paying attention. :lol

The Activist Judiciary strikes again! Now the SCOTUS can step in and force certain hiring/promotion practices at a LOCAL fire department? Why can't we let states and cities hire and promote whoever and however they want?

:)

Quote:

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Originally Posted by spurster

:lol at all you trying to make a 5-4 SCOTUS decision look clear cut.

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Its clear cut because it is the morally correct decision. The city issued a neutral test that favors no ethnicity. Some men did well, and other men did poorly. The city then ignored the results of their test, and avoided promoting the men who did well. The Supreme Court fixed that.

Conservatives are worried about the disparate treatment of qualified whites. It's racist.

Quote:

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Originally Posted by Winehole23

Conservatives are worried about the disparate treatment of qualified whites. It's racist.

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I would argue that it shouldn't be just conservatives who should be worried about stuff like this. When a man, any color of man, is refused a promotion based off of race, it is wrong. And thats what it comes down too isn't it?

The city was gonna get sued by either party in this case. Either the whites (and hispanic dude) for disparate treatment or the minorities for disparate impact.

There was a lot more people who failed the test than there were people who passed it. The city simply went with the side they felt was going to result in the least amount of lawsuits.

DI and DT were seen fairly equally. Now it looks like DT is going to be a lot easier to prove than DI.

Quote:

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Originally Posted by Spurminator

The Activist Judiciary strikes again! Now the SCOTUS can step in and force certain hiring/promotion practices at a LOCAL fire department? Why can't we let states and cities hire and promote whoever and however they want?

:)

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Because white people are the real victims here. They were entitled to the promotions but got shouldered aside in favor of unqualified minorities.

Quote:

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Originally Posted by jman3000

Umm.. I don't think anybody was hoping for otherwise. It was pretty apparent that this was going to be reversed. Good.

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I concur.

She will still be confirmed.

Quote:

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Originally Posted by sam1617

I would argue that it shouldn't be just conservatives who should be worried about stuff like this. When a man, any color of man, is refused a promotion based off of race, it is wrong. And thats what it comes down too isn't it?

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:tu

Quote:

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Originally Posted by jman3000

Umm.. I don't think anybody was hoping for otherwise. It was pretty apparent that this was going to be reversed. Good.

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With all due respect the law would have stood with two more Sotomayor's on the bench. It was a 5-4 decision. 4 were hoping for otherwise.

Quote:

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Originally Posted by Spurminator

The Activist Judiciary strikes again! Now the SCOTUS can step in and force certain hiring/promotion practices at a LOCAL fire department? Why can't we let states and cities hire and promote whoever and however they want?

:)

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They did leave it to the city, until the city decided to throw out measures and tests it previously approved because those tests and measures gave them results they didn't like. Then they decided to throw those measures out an unconsitutionally discriminate against hispanics and whites.

Quote:

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Originally Posted by Wild Cobra

Ginzberg:Look at what this crazy libtard is saying. She is clearly dissenting for racial reasons, not reasons of merit.

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Reductionist. She's dissenting because of what she sees as an entrenched prejudicial environment in municipalities like firefighting, combined with a test that has a starkly disparate impact on minorities. It's a closer call than you're making it out to be.

I still want to know how a test gets certified as "race-neutral". :) I mean, the loca FD seemed to accept it, so it's bad on them.

In a larger sense of the question, should private companies have the right to hire whoever they want, even if thier hiring practices are unfair due to things like racism?

For instance, what if I own a company, and I hate seeing handicapped people. Should I have the right not to hire them?

Quote:

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Originally Posted by LnGrrrR

I still want to know how a test gets certified as "race-neutral". :) I mean, the loca FD seemed to accept it, so it's bad on them.

In a larger sense of the question, should private companies have the right to hire whoever they want, even if thier hiring practices are unfair due to things like racism?

For instance, what if I own a company, and I hate seeing handicapped people. Should I have the right not to hire them?

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I read that they had several outside individuals come in to help them build the exam. They had several minorities on the panel that created and signed off on the exam as being racially fair.

That's what I don't get. They basically had an overabundance of minorities consult on the test, got the test results, and then said they couldn't promote because it was racist. WTF...

Quote:

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Originally Posted by Aggie Hoopsfan

That's what I don't get. They basically had an overabundance of minorities consult on the test, got the test results, and then said they couldn't promote because it was racist. WTF...

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The way the law is written, employers are responsible even for disparate impact that is unintentional.

Quote:

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Originally Posted by Winehole23

The way the law is written, employers are responsible even for disparate impact that is unintentional.

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No, it's not written that cut and dry. I remember reading up on that. It recognizes differences, and it's a case of presuming all other things are equal. In the case of the fire fighters, promotion to lieutenant test, you likely had a larger percentage of whites with more years of experience, from past hiring. The captains test had a better percentage of blacks passing, but to be lieutenant, they already had good experience under their belt. Still, maybe not as many years of experience. Consider the likelihood that there are similar numbers to my example for the lieutenants test:

43 Whites, 19 Blacks, and 15 Hispanics took the test. Let's assume that if we break it down at the 10 year point, there 15 Whites, and 12 Blacks, and 10 Hispanics with less than 10 years of experience. You would therefore have 28 Whites, 4 Blacks, and 3 Hispanics with 10 years or more. When you consider how you are naturally better qualified with longer experience, you cannot use something like the 80% rule. You would have to look at that from a year by year perspective. Again, the sample size is too small to have any statistical relevance. If we assume that an average of 75% of the 10 yr+ people pass and 15% of the <10 year pass, you end up with 23 Whites, 7 Blacks, and 5 Hispanics passing.

Remember, this is a made up example to illustrate a point that is recognized. That there used to be little or no minorities hired. This means that Whites have the bulk of experience.

WC, two questions, one procedural, one philosophical:

1) Can private companies legally discriminate when hiring, aka the handicapped scenario above?

2) Should private companies be able to discriminate when hiring?

what a load of crap:

Quote:

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BY JESSE JACKSON
New Haven, Conn., is a city in which African Americans and Hispanics account for nearly 60 percent of the population; yet, by order of the U.S. Supreme Court, the city must be served --"as it was in the days of undisguised discrimination -- by a fire department in which members of racial and ethnic minorities are rarely seen in command positions."
Today's ruling is deeply flawed and should not be the law of the land.

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If my house is on fire, I want the best firemen coming to help, not a bunch of underperforming quota-fillers and affirmative action firefighters. And no, I don't care if they are green, yellow, black or white. The best ones regardless is what I want.

link to load of crap

Quote:

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Originally Posted by LnGrrrR

WC, two questions, one procedural, one philosophical:

1) Can private companies legally discriminate when hiring, aka the handicapped scenario above?

2) Should private companies be able to discriminate when hiring?

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I'm not WC, and I'm not going to answer the 1st point, because I don't know about the legality other than to say that hire the best man available for the job, regardless of race or physical attributes.

As for the second point, I absolutely think that private companies should be able to discriminate when hiring. I don't agree that it is morally right, but they are private companies, and should be able to do what they want like that. If they prove to be racist, then the people that offends (which should be everyone) shouldn't purchase from them. But it shouldn't be illegal, the government should stay out of private organizations.

Quote:

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Originally Posted by LnGrrrR

WC, two questions, one procedural, one philosophical:

1) Can private companies legally discriminate when hiring, aka the handicapped scenario above?

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I don't know the nuances for the handicapped hiring. I know there are practical limits involved.

Quote:

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Originally Posted by LnGrrrR

2) Should private companies be able to discriminate when hiring?

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In short, yes. But you left the question wide open. The hiring process is nothing but discrimination. The question becomes what you can and cannot discriminate against.

Quote:

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Originally Posted by TheProfessor

Reductionist. She's dissenting because of what she sees as an entrenched prejudicial environment in municipalities like firefighting, combined with a test that has a starkly disparate impact on minorities. It's a closer call than you're making it out to be.

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No, she's dissenting because of her ACLU membership. She is an activist judge and should have never been considered for any federal or state bench.

Quote:

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Originally Posted by LnGrrrR

WC, two questions, one procedural, one philosophical:

1) Can private companies legally discriminate when hiring, aka the handicapped scenario above?

2) Should private companies be able to discriminate when hiring?

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Sure you can. Lets say you own a gym and you need to hire a kick boxing instructor. Lets say Bob, the paralyzed applicant applies for the job. It would be physically impossible for him to instruct the class so the employer rejects his application. Perfectly legal.

God forbid that companies are just allowed to hire the most qualified applicants... without worrying about being sued.

Quote:

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Originally Posted by Bender

what a load of crap:

Quote:

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BY JESSE JACKSON
New Haven, Conn., is a city in which African Americans and Hispanics account for nearly 60 percent of the population; yet, by order of the U.S. Supreme Court, the city must be served --"as it was in the days of undisguised discrimination -- by a fire department in which members of racial and ethnic minorities are rarely seen in command positions."
Today's ruling is deeply flawed and should not be the law of the land.

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If my house is on fire, I want the best firemen coming to help, not a bunch of underperforming quota-fillers and affirmative action firefighters. And no, I don't care if they are green, yellow, black or white. The best ones regardless is what I want.

link to load of crap

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Wow. I just got around to reading that link. I hope people realize just how wrong Jesse Jackson is.

Quote:

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Originally Posted by LnGrrrR

For instance, what if I own a company, and I hate seeing handicapped people. Should I have the right not to hire them?

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I would say you should have that right. At the same time, if one of them turned out to be the best candidate for the position, wouldn't you want to hire him or her?

Quote:

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Originally Posted by Wild Cobra

I would say you should have that right. At the same time, if one of them turned out to be the best candidate for the position, wouldn't you want to hire him or her?

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Well, if I was racist, I doubt I would come to that conclusion, n'est-ce pas? :lol

Quote:

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Originally Posted by elbamba

Sure you can. Lets say you own a gym and you need to hire a kick boxing instructor. Lets say Bob, the paralyzed applicant applies for the job. It would be physically impossible for him to instruct the class so the employer rejects his application. Perfectly legal.

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No, I meant, if the handicapped person could otherwise perform the job the same a regular person could.

(I know there are laws allowing people who cast TV to keep attractiveness in mind, etc etc. There was also a case where a bar was allowed to discriminate when hiring on basis of attractiveness, due to a real effect on profits.)

Quote:

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Originally Posted by Wild Cobra

In short, yes. But you left the question wide open. The hiring process is nothing but discrimination. The question becomes what you can and cannot discriminate against.

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That was kinda the point. If I own a business, why can't I discriminate however I want? Should I have the right as an owner to discriminate however I wish to discriminate?

After all, if I am racist, and will only hire whites, should we let the free market settle the issue, or should we write a law to prevent me from doing so?

Quote:

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Originally Posted by LnGrrrR

That was kinda the point. If I own a business, why can't I discriminate however I want? Should I have the right as an owner to discriminate however I wish to discriminate?

After all, if I am racist, and will only hire whites, should we let the free market settle the issue, or should we write a law to prevent me from doing so?

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As much as I would disagree with your personal feeling, I would agree you should be able to. The law says otherwise, that if race can be shown to be the discriminating factor, there are grounds for a lawsuit. Would you cast a White or Hispanic to play the role of MLK in a movie? Would you cast a Black or Hispanic to play the roll of Hitler?

It depends on the necessity of the discrimination I think. Then again, when you try to run a quota system, or the 80% rule, all other things must be equal. If an employer has a good reason other than skin color, then numbers should be thrown out the window.

Quote:

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Originally Posted by LnGrrrR

No, I meant, if the handicapped person could otherwise perform the job the same a regular person could.

(I know there are laws allowing people who cast TV to keep attractiveness in mind, etc etc. There was also a case where a bar was allowed to discriminate when hiring on basis of attractiveness, due to a real effect on profits.)

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Yes, there is no right to employment at any private or public institution. Now will someone actually say, I am not hiring you because you are black, white, handicapped or muslim...probably not so it is really a moot point.

You rarely see cases that are so cut and dry. Usually employment discrimination cases are wrongful termination cases as oppossed to actual failing to hire cases.

The other issue to examine is what the hiring polciy is of a private company. Lets say I own a small business of 200 employees in Omaha Nebraska, (I do not know Nebraska equal employment opportunity laws) and I issue a policy that my company will not discriminate in our hiring through race, sex, religion, sexual orientation, etc... Then I deny a gay applicant a job based on his sexual orientation, the applicant now has a cause of action against me. Now if I deny him the job and do not give him an explanation, he really doesn't have a case, not that people don't still try and sue.

Ironic.

Indeed

Quote:

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Originally Posted by Winehole23

Ironic.

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Quote:

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Originally Posted by jack sommerset

Indeed

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Why?

It's a non-story to me unless there are enough facts to make an assessment over. Besides, the Disabilities Act does not make race based decisions, or use quota's. Without knowing if he was the most qualified applicant or not, how can we decide? Let's say he scored in the top 5 for a dozen positions, but was not considered because of dyslexia. Now there has to be an honest question as to if dyslexia affects the job or not.

Because he was discriminated against twice. First, by the results of an unfair test that didn't break his way. If Ricci hadn't sued he not have been hired as a fireman to begin with.

And in the eponymous case, he wouldn't have gotten a promotion without suing when the retesting didn't go his way.

*Without civil rights law, Mr. Ricci can't get anywhere in the New Haven fire department.*

If hypocracy were capable of baring law suits, there would be a lot of empty dockets.

Quote:

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Originally Posted by Winehole23

Ironic.

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Ironic? Maybe. Hypocritical? Definitely not.

Equivalent circumstances? No.

Ricci's original suit claimed the test unfairly discriminated because, in order to pass it, it required him to possess skills not required to do the job of firefighter.

Ricci's second suit claimed he and the other firefighters, not promoted, were discriminated against, by the city of New Haven, because of their race.

This case was about whether or not the court had the right to step in and tell a city government how to conduct its hiring decisions. To claim her upholding the lower court ruling makes her activist is ridiculous.

Quote:

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Originally Posted by ploto

This case was about whether or not the court had the right to step in and tell a city government how to conduct its hiring decisions. To claim her upholding the lower court ruling makes her activist is ridiculous.

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The city violated its own promotional standards, that is what the case was about. This case does not make her an activist. She had legitimate law to support her claim and anyone who says otherwise would be mistaken.

What makes her an activist, are the comments that she has made in several different speeches to law students throughout the nation. The Supreme Court is not the place to make policy, it is the venue to decide on whether policy is constitutional or not, and a smart judge would be wise to be more judicial in the words she uses to describe her role.

For the record, I do not like the term activist when it comes to judges. Most judges have been activists since Marshall took over as cheif judge.

Wow. What an absolute circle jerk session that occurred today.

Quote:

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Originally Posted by Viva Las Espuelas

Wow. What an absolute circle jerk session that occurred today.

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I caught part of it on C-Span, and I was so sickened, I turned it off.

Quote:

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Originally Posted by Viva Las Espuelas

Wow. What an absolute circle jerk session that occurred today.

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It's typical of the first day of any confirmation process. Go back and read the transcripts of the Roberts confirmation hearing or the Alito hearing and you'll find exactly the same thing. Lots of talk and speechmaking, almost all of it partisan.