Court rules for white firefighters over promotions

[LnGrrrR]

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

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.

[Wild Cobra]

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

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.

[LnGrrrR]

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

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.

[Winehole23]

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

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

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

Odd that every previous court agreed with them.

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

OK.

The Court’s decision in this litigation underplays a dominant le 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 [ le 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 le 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 .

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

[Winehole23]

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

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

[sam1617]

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

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 le VII is outdated, and at the least needs to be seriously reworked...

[LnGrrrR]

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

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.

[Wild Cobra]

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.

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:

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

Where the 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.

[LnGrrrR]

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 le VII is outdated, and at the least needs to be seriously reworked...

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.

[Winehole23]

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 le VII is outdated, and at the least needs to be seriously reworked...

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

[LnGrrrR]

So regarding what WH23 posted...

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 .

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?

[Winehole23]

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.

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.

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

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.

[Winehole23]

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?

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

[Winehole23]

Ilya Somin @ Volokh.

[Wild Cobra]

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.

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:

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.

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.

[Winehole23]

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.

[Wild Cobra]

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

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

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.

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

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

No, because it is factually sound, by law.

[Winehole23]

Interesting (@11:43):

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.

[Winehole23]

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

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.

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

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.

No, because it is factually sound, by law.

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

[LnGrrrR]

Ilya Somin @ Volokh.

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.

[LnGrrrR]

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

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.

Any business owners willing to throw in 2 cents?

[Wild Cobra]

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

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:

Pe ioners 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 pe ioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what pe ioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of le VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

[Winehole23]

From the comments:

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.

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."

[Winehole23]

Pe ioners 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 pe ioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what pe ioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of le VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

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.

[Wild Cobra]

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."

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.