Joan Ball is a business professor at St. John’s University in New York and the author of Flirting with Faith: My Spiritual Journey from Atheism to a Faith-Filled Life.
It’s hard for someone like me, with no legal background, to understand the intricacies of yesterday’s Supreme Court decision about the New Haven, Conn. firefighters’ discrimination (or so-called ‘reverse discrimination’) lawsuit.
Obviously, there’s more going on here than just a test result that was tossed out in fear of a lawsuit. (Or is there?) But on the surface of it, the court’s decision seems fair to me–how could the fire department develop a test to determine who gets promoted, and then throw out the results when they didn’t like them?
The argument in the case, I understand, has to do with Title VII of the Civil Rights Act and “disparate impacts,” meaning the department could be open to lawsuits because it might be argued that non-whites were unfairly left behind. The court, as far as I can puzzle out, basically ruled that it’s illegal to avoid potential discrimination suits by committing actual discrimination. Somehow, this just makes a lot of sense to me.
Yet I’m uneasy, not least because I tend to be one of those liberals who side staunchly with the Bader Ginsburg’s of the world. And I’ve been reading that the ruling could make it harder for other types of discrimination lawsuits to go forward in future, which is troubling. Am I missing the point? (I probably am.)
Can someone please explain this situation to me? Share an opposing opinion? I’d love to hear some thoughts on this controversial issue, not least because it’s sure to affect Sonia Sotomayor’s upcoming Supreme Court nomination hearings.
posted July 1, 2009 at 1:45 pm
In the original case, it was concluded that the decision not to hire the firefighters was race-motivated but NOT “intentional discrimination.” That alone is contrary to every decision the court has ever issued concerning the meaning of that phrase. Specifically, the Second Circuit followed a rule declaring that any effort to avoid the disparate impact of a selection device, in this case the exam, that does not use explicit racial classifications is never intentional discrimination. Thus, under this rule, even where the employer has no real fear of any liability – because, for example, its selection
criteria is obviously job-related (such as language fluency for a translator) – it may engage in flagrantly race-motivated conduct to “remedy” any disparate impact, provided it does not use explicit racial classifications. This interpretation of both Title VII and the Equal Protection Clause is just plain wrong. Besides that, the primary purpose of both Title VII and the Equal Protection Clause is to prevent intentional discrimination, i.e., the consideration of a prohibited factor in an employment or other decision. There can be no doubt that is what happened in this case. It was intentional. And the idea that any–I repeat ANY–race-motivated refusal to hire is not intentional discrimination is incoherent.
posted July 2, 2009 at 8:51 am
From what I’ve read on several sites, this case was decided in Appellate Court, following laws and precedent set over the last few decades. Then, the Appellate Court was overturned by a group of activist judges who just happen to be conservative, who made new law from the bench.
At least, that’s the opinion of numerous lawyers.
This decision really shouldn’t affect Judge Sotomayor’s nomination – she was following decided law in this ruling. The fact that an activist Supreme Court is changing the law of the land shouldn’t derail her nomination, Republican hopes to the contrary.