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Frank Ricci Gets His Day In Court

Despite the best efforts of Sonia Sotomayor and her Second Circuit panel to bury his claim in a cursory opinion, Frank Ricci made it to the Supreme Court and today received justice. In a 5-4 decision the Court ruled that under Title VII,  the results of Ricci’s promotional test could not be thrown out simply because the city of New Haven feared a lawsuit. Because the issue was easily resolved on this basis, there was no need to proceed to the 14th Amendment issue. There was no remand to the Second Circuit.

Much more will be written about the case. But Justice Kennedy’s opinion is blunt and rather devastating to those who defended Sotomayor and the Second Circuits’ back-of-the-hand treatment of the white firefighters’ case:

The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.”

Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See §2000e–2(a)(1).

As for the fear of getting sued, the Court held:

If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.

[. . .]

The City argues that, even under the strong-basis-in-evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect. Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.

Those of us who made this identical argument are cheered. Those who saw a great injustice in dismissing Ricci’s claim are heartened that he received a clear and definitive win. The proponents of identity politics and defenders of Sotomayor have their work cut out explaining how Ricci couldn’t manage to find a full resolution of his claim in the Second Circuit and why we should have confidence in Sotomayor’s ability to spot, let alone resolve correctly, important discrimination issues.



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