By the time you read this article, Supreme Court nominee Sonia Sotomayor will be Justice Sonia Sotomayor of the United States Supreme Court. As with most political appointments, her life and her work were put under intense scrutiny as political leaders and regular citizens tried to determine if they felt that she would speak for them. Other than the infamous “wise Latina” comment, perhaps no part of her judicial work received more attention than her opinion in Ricci v. DeStefano. In addition to being fodder for conversation at dinner parties, this case is an excellent illustration of the problems employers face every day in trying to make basic employment decisions without running afoul of Title VII - the law prohibiting employment discrimination.

TITLE VII – WHERE DID THIS ALL COME FROM ANYWAY?

The first thing to understand about Title VII is that it is a law written by human beings. Not just human beings, but politicians in Washington, D.C. That pretty much guarantees that it is poorly written, which is a shame because you would think that if at least one thing should be well-written, it is the law. Well, you’d think that anyway.

The term “Title VII” refers to Title VII of the Civil Rights Act of 1964 - the law that outlawed racial segregation and invalidated the Jim Crow laws. The Act itself is very long and has a huge number of sub-parts that outlaw discrimination in a wide variety of contexts. Title VII outlaws discrimination by employers on the basis of race, color, religion, gender, and national origin. Over time, the law has come to recognize two different types of discrimination in the workplace.

DISPARATE TREATMENT – I MEANT TO DO THAT!

Disparate treatment is the easier of the two to explain. It refers to when an employer makes a harmful employment decision (to fire an employee, demote them, fail to promote, take away scheduled hours, etc.) because of an employee’s race or gender. For example, suppose Tom - the supervisor - calls Nick into his office and says “Nick, I’m firing you because you are black.”

First, Tom is probably not going to be a supervisor for very much longer. Second, Nick has been the victim of disparate treatment. Nick has been fired and that is a harmful employment decision. The 10-dollar legal term for it is “adverse employment action.” Although Tom is well within his rights to fire Nick, he can’t fire Nick because he is black. By doing so, he has virtually guaranteed a lawsuit.

DISPARATE IMPACT – LIES, DAMN LIES & STATISTICS

Very quickly, people began to realize that it wasn’t a good idea to tell someone they were being fired because they were black, or female, or a member of some other protected class. So most people pretty much quit doing it. Several Supreme Court decisions (Ward Cove Packing v. Atonio in particular if you really want to know) also made it harder for employees to show disparate treatment discrimination was occurring.

In response, the federal government decided the solution was more laws. It passed the Civil Rights Act of 1991. This Act - among other things - amended Title VII to provide employees with the right to show discrimination using a theory called “disparate impact.”

Disparate impact is the idea that employers could create policies that are look non-discriminatory on their face but in practice have a disproportionate affect on a particular race, religion, or gender.

The perfect example of disparate impact is the infamous poll tax. After the Civil War, the federal government ordered the Southern states to stop prohibiting blacks from voting. In response, the South said, “Fine, but we’re making everyone who wants to vote pay a fee - the poll tax.”  On paper, the tax affects everyone equally so it doesn’t appear discriminatory. In practice, the tax was created because everyone knew that all of the blacks - who were recently freed slaves - couldn’t afford to pay the tax. Therefore, the effect of the poll tax was to prevent blacks from voting. This was a very early example of a disparate impact policy, albeit not in the employment setting.

Disparate impact is proven using statistics. An employee must hire a statistician to come in - and using the magic of statistics - “prove” that a policy appearing non-discriminatory on its face is actually discriminating against a particular race, religion, or gender.

RICCI – WHEN WORLDS COLLIDE

Ricci was a unique case because, in a sense, disparate treatment and disparate impact collided head on and no one quite knew what to do. The facts of Ricci are pretty well-known. The employer - the city of New Haven, Conn., fire department - decided to base future promotions for captain and lieutenant primarily on a written test designed by an outside consulting firm. Forty-one applicants took the captain exam; eight were black. Seventy-seven applicants took the lieutenant exam; 19 were black. None of the African-American applicants scored high enough to be promoted. Only two out of 29 Hispanics who took the tests qualified for promotion for either position.

It would not have been hard for a statistician to show disparate impact with these statistics. Realizing this, the city threw out the test results to avoid being sued for disparate impact by the black and Latino applicants that were not selected. Unfortunately, they forgot about the white applicants that actually passed. The white applicants pointed out that the city was making a harmful employment decision about them (not promoting them after they passed the tests) because of their race (white). In so doing, the city was committing disparate treatment discrimination against the white applicants.

Worlds collided because the city of New Haven committed disparate treatment discrimination against the white applicants in order to avoid committing disparate impact discrimination against the black and Hispanic applicants. How’s that for a head scratcher?

ON THE COUNT OF THREE: READY, SET, SUE

The procedural history of the case arguably became bigger than the case itself. The white firefighters sued the city of New Haven but the case was dismissed on summary judgment by a federal district court. Judge Sotomayor entered the fray as a member of a three judge appellate panel that reviewed the decision. The most pointed criticism of Judge Sotomayor was not that she ruled for the city - although many may disagree with her on that point. Rather, she did so with an incredibly brief - by legal standards anyway - and terse decision. She issued a five-sentence order upholding the district court’s decision. It’s tough to compose a grocery list in only five sentences, so you can imagine that many in the legal community felt she did not adequately address the weighty matters at issue.

WARNING: LEGALESE PARAGRAPH!

Fortunately, the Supreme Court recognized the gravity of the issues in play - namely a direct conflict between disparate treatment and disparate impact discrimination. Faced with that framework, the Court sought to carve out a middle ground.

First, the Court concluded what was plainly undeniable. The city of New Haven had discriminated against the white firefighters by denying them the promotions they were otherwise entitled to because of their race. The Court then addressed the issue of what an employer should do if it fears the results of an employment test suggest a disparate impact on a particular group - as the New Haven test did.

Although the city of New Haven technically lost, the Supreme Court acknowledged that what they were trying to do was legitimate. An employer may throw out employee exam results to avoid the risk of a disparate impact lawsuit. But, the Court created a standard. An employer must be able to show “a strong basis of evidence” that disparate impact exists before it can throw out the exam results - and in effect disparately treat the applicants who did well on the exam.

MY HEAD HURTS – JUST TELL ME WHAT IT MEANS FOR ME

Unfortunately, it’s pretty unclear at this point. There isn’t any guidance yet on what exactly “a strong basis of evidence” is. Someone is going to get sued over that and soon. For most employers, Ricci is just another reminder to review and standardize hiring, promotion, and discipline policies.

Sound policies that limit the discretion of individual supervisors and managers are still the best defense to discrimination claims. A strong paper trail documenting every step of the process in making employment decisions goes a long way toward scaring off plaintiff’s attorneys.

If you haven’t already done it, contact your labor or employment attorney and ask them to look over your policies for making employment decisions. It might only take a few tweaks here and there to make it a lot less vulnerable to a lawsuit. As anyone who has ever been sued can tell you, if they had just spent a more little time trying to get it right the first time, they would have saved themselves untold headaches and expense later. That was probably the same thing Judge Sotomayor was thinking right about the time she walked into those Senate confirmation hearings.

Publication date: 08/24/2009