Commentary Magazine


Don’t Break Out the Champagne Just Yet

Jonathan is right that we should pray for the continued health of Justice Kennedy, whose record on race cases is pretty good, but it is unfortunate that he and his fellow justices didn’t consider the Constitutional issues in the Ricci case, which would have made it far more difficult for Democrats in Congress to undo the results of the decision. I hope I’m wrong, but I fear that Harry Reid and Nancy Pelosi will try to reverse Ricci quickly by offering legislation to ensure that employers must use only employment tests that achieve equal results among different racial and ethnic groups.

It’s important to remember that the Ricci case grew out of an interpretation of 1991 amendments to the Civil Rights Act that tried to undo a previous court decision in Atonio v. Wards Cove. In that case, the court said that the burden of proof remained with the plaintiff in an employment discrimination case alleging disparate impact. Congress was so incensed with the decision that it passed the Civil Rights Act of 1991, which, among other provisions, shifted the burden of proof to the employer to justify a test that has a disparate impact. During the debate over the legislation, Republicans were able to include language prohibiting race-norming of tests (a practice used at the time, including by the federal government, which assigned percentile rankings within racial groups, so that the same raw score by a white, black, and Hispanic applicant would have different rankings depending on how each racial group fared overall on the test). But the impact of the 1991 Act was to make claims of discrimination easier for plaintiffs.

Justice Ginsburg hints that opponents to the Ricci case will take similar action (as they did recently in the Lilly Leadbetter equal pay case and in 1984 in the Grove City case), passing legislation that reverses the Court. If so, the Court may have to decide the issue on Constitutional grounds, but that will take a while, and who knows what impact Obama will have on the Court’s composition.