This Monday, in the New Haven, Conn., firefighters case Ricci v. DeStefano, the Supreme Court held that it's unlawful race discrimination for an employer to refuse to act on the results of a promotion exam because the test eliminated a disproportionate number of minority candidates (in the New Haven case, all the black firefighters up for promotion). I've written before that this argument threatens to burn down civil rights law. Now that the fuse has been lit, I'm writing to explain just how far the fire could spread. The plaintiffs in Ricci were undoubtedly sympathetic: hardworking public servants--17 of them white, one Hispanic--who expected that the exam they studied for and did well on would determine their eligibility for moving up the ranks. But their legal argument is the latest in a long-standing campaign to turn civil rights laws against themselves. There's a striking progression in the attacks on civil rights. In the early 1970s, affirmative action was widely considered to be a logical extension of civil rights principles: Even President Nixon--a man not known for his enlightened racial attitudes--supported it. But by the end of the decade, affirmative action was under attack as reverse discrimination. And now we see the next step in the march against civil rights with the part of federal civil rights law--Title VII--called "disparate impact" that prohibits employers from using promotional or hiring procedures that screen out minorities unless they can prove that the procedure is closely job-related. Until this Monday, lawyers and judges thought of disparate impact law as a logical extension of the law against intentional discrimination: The premise of the discriminatory impact prohibition is that an employment practice that unnecessarily screens underrepresented groups from the work force is, in effect, just as discriminatory as a "whites only" sign. As I've argued, plaintiff Frank Ricci's case was a loser under established law until this new Supreme Court ruling, which is why the district court was right to dismiss it on summary judgment and why the U.S. Court of Appeals for the 2nd Circuit Court was right to reject Ricci's appeal. Now the Supreme Court has changed the law, recasting disparate impact law as a kind of affirmative action--an unfair racial preference--rather than an equal-opportunity law.
The plaintiffs in Ricci were undoubtedly sympathetic: hardworking public servants--17 of them white, one Hispanic--who expected that the exam they studied for and did well on would determine their eligibility for moving up the ranks. But their legal argument is the latest in a long-standing campaign to turn civil rights laws against themselves. There's a striking progression in the attacks on civil rights. In the early 1970s, affirmative action was widely considered to be a logical extension of civil rights principles: Even President Nixon--a man not known for his enlightened racial attitudes--supported it. But by the end of the decade, affirmative action was under attack as reverse discrimination. And now we see the next step in the march against civil rights with the part of federal civil rights law--Title VII--called "disparate impact" that prohibits employers from using promotional or hiring procedures that screen out minorities unless they can prove that the procedure is closely job-related.
Until this Monday, lawyers and judges thought of disparate impact law as a logical extension of the law against intentional discrimination: The premise of the discriminatory impact prohibition is that an employment practice that unnecessarily screens underrepresented groups from the work force is, in effect, just as discriminatory as a "whites only" sign. As I've argued, plaintiff Frank Ricci's case was a loser under established law until this new Supreme Court ruling, which is why the district court was right to dismiss it on summary judgment and why the U.S. Court of Appeals for the 2nd Circuit Court was right to reject Ricci's appeal. Now the Supreme Court has changed the law, recasting disparate impact law as a kind of affirmative action--an unfair racial preference--rather than an equal-opportunity law.
