Sotomayor takes a body blow as SCOTUS overturns her discrimination ruling
June 29th, 2009 by Rightwing Czar at 11:58 amThe Supreme Court handed down a decision today that might impact Sotomayor’s confirmation hearings – which could start as soon as July 13th if the Democrats have their way. In a 5-4 ruling the Court overturned Sotomayor’s ruling that a New Haven fire department acted according to Title XII of the Civil Rights Act by throwing out a promotional exam that appeared to discriminate against minorities.
In other words – the alleged “discriminatory” test administered by the fire department wasn’t discriminatory at all. So there.
How exactly did the Court reach the decision, though?
Our analysis begins with this premise: 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 exami- nation 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.” 554 F. Supp. 2d, at 152; see also ibid. (respondents’ “own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decision-making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See §2000e–2(a)(1).
The Court essentially put the burden of proof on the City to prove that there was motivation to throw out the test results that wasn’t based purely on the fact that white firefighters led the pack on the exam’s results.
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.
Aka, the City failed to prove its case that, objectively, the tests were racially discriminatory, and therefore, not using the tests on the basis of a racial outcome is itself a racial discriminatory act:
On this basis, we conclude that petitioners have met their obligation to demonstrate that there is “no genuine issue as to any material fact” and that they are “entitled to judgment as a matter of law.”
And the money quote…
On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence — let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. 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. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.
This is a pretty strong point here to chew on. “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.” Fear of litigation is the driving force behind almost every human resource department in the country right now, thanks to the absurd level that affirmative action has permeated our culture.
In a concurring opinion today, Scalia makes this point pretty clearly:
I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely post- pones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. See generally Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493 (2003). …
As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is, as the Court explains, discriminatory. See ante, at 19; Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979).
When will we get beyond the days where affirmative action, racial quotas, and the fear of litigation is constantly in the back of the mind as employers hire, fire, and promote their employees? Surely racially-motivated behavior can be demonstrated in court without the assumption that any outcome that appears discriminatory in fact is.
But the burden of proof should always be on those charging racial discrimination – not vice versa. We’re beyond the point of assuming that a fire department – in New Haven, Connecticut of all places – would engage in racially discriminatory practices.
The Court, thankfully, came on the side of common sense today. And if Sotomayor’s backwards way of thinking about the government’s role in preventing discrimination ever makes it on the Court – at least she’s replacing someone as lost in the woods as she is on the issue.