Jottings By An Employer's Lawyer

Monday, June 29, 2009

Supreme Court Gives Victory to New Have Firefighters

Appropriately enough given the venue, Daniel Schwartz at the Connecticut Employment Law Blog has one of the first substantive analyses of this morning's Supreme Court decision in Ricci v. DeStefano (S.Ct. 6/29/09) [pdf].

He also gives good counsel about not rushing to conclusions about the outcome until the 93 pages of the various opinions can be more than just skimmed.

Still, some basics are clear. The 5-4 opinion with Kennedy in the majority and writing the opinion is not a shocker. The 4-4 split is along the well known divide of Scalia, Thomas, Roberts and Alito vs. Stevens, Ginsburg, Souter and Breyer. And given the headline, it is clear that it was the conservative quartet that came out on top this time.

Justice Ginsburg took her role in providing the dissent (38 pages itself).

Among the points:
  • it is based on Title VII, not constitutional principles, so it is equally important to private sector employers as well as government employers.
  • Justice Kennedy saw the role of the majority to provide guidance to lower courts and parties when an employer is faced with a possible disparate impact case on one hand and a disparate treatment on the other;
  • The test is fairly easy to describe -- an employer can not rely on the threat of a disparate impact case as a defense to a disparate treatment case unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. "
  • Applying that test is not likely to be all that easy.
  • Sure to be much discussed is what Justice Ginsburg meant when she said, "The Court's order and opinion, I anticipate will not have staying power." Another veiled suggestion for legislative override?
Probably the biggest surprise is that given that New Haven had prevailed on summary judgment, the Supreme Court could easily have sent the case back to the trial court for it to apply its newly established standard. However, rather than doing so, it seems to have jumped a step and handed victory to the firefighters:
If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
I think that's Supreme Court talk for "this one is over," although I am not sure that will actually turn out to be the case.

This decision is going to get tons of scrutiny and comment, largely because Judge Sotomayor was on the panel of the 2nd Circuit which had a different outcome. To the extent that the commentary focuses on the case itself that's good, when it goes off on how it impacts on her abilities/views etc. I am less interested.

My first instinct is that it is an important case, but applies to a situation that does not come up all that often.

However, the reason that has not come up all that often in recent years is that the OFCCP has changed its direction, with much less emphasis on affirmative action via AAP's and much more attention to discrimination. To the extent that under the Obama administration, that emphasis switches back to what employers subject to EO 11246 faced in much earlier times, the case could be even more important.

Although there's that Ginsburg tease, 'not much staying power.'


By your title to this post, do you imply there are "have" firefighters and "have not" firefighters?
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