Ricci v. DeStefano

The Supreme Court decision is online.

It appears that the white firefighters won, reversing the 2nd Circuit panel which Sonia Sotomayor sat on. I will read the opinion and have more to say later.

* * *

I will start by pointing out that Ricci is a 5-4 decision. On one side are Kennedy, Roberts, Scalia, Thomas, and Alito. On the other side are Ginsburg, Stevens, Souter and Breyer. If Sotomayor were on the Court, she obviously would have sided with the dissenters, but because she is replacing Souter she won’t change the balance of the Court.

Souter was the second-worst Supreme Court nomination by a Republican President in the last 30 years. Harriet Meyers was the worst, but luckily she was forced to withdraw and was replaced by Alito.

* * *

In comments to my blog, I frequently read comments from people who misunderstand the law of disparate impact and who think that it’s always illegal to use tests to make hiring and promotion decisions. This is wrong.

The majority opinion explains the law of disparate treatment and disparate impact in Section II-A of the decision, pp 17-19. This is by definition the correct explanation of the law because it’s the explanation endorsed by a majority of the Supreme Court, but it was also the generally accepted law before this opinion. Here’s my summary (which paraphrases the Supreme Court decision, but also includes my own additional clarifications):

(1) The Civil Rights Act of 1964 makes disparate treatment illegal. It’s unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). You will note that the statute doesn’t make a distinction between minority or majority races. Under a textual reading of the statute, it’s equally illegal to discriminate against whites as it is against blacks.

(2) The concept of disparate impact is a judicially created doctrine which first appeared in the Supreme Court decision of Griggs v. Duke Power Co., 401 U. S. 424 (1971).

(3) The exact wording of Griggs is no longer entirely relevant because disparate impact law was codified by Congress in the Civil Rights Act of 1991, and new Congressional statutes override any case law interpreting old Congressional statutes. But the 1991 Act did specifically state that its purpose was to codify the result in Griggs, and the Court is still citing it, so it's still a very important case.

(4) An explanation of the current law of disparate impact:

(4)(a) A plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(k)(1)(A)(i). Once again, note that, under a textual reading of the statute, there is no distinction between minority or majority races.

(4)(b) An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Ibid. This clause is extremely important to understanding the law. Not all disparate impact is illegal, but only disparate impact that’s not job related or is not consistent with “business necessity.”

(4)(b)(i) What exactly is a “business necessity”? The majority applies a loose definition, citing language from Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975), and implying that a business necessity means “a manifest relationship to the employment in question.” Obviously, there’s a manifest relationship between a test of firefighting knowledge and a leadership position in a fire department, isn't there? The majority view is that business necessity isn't much different than job relatedness. Ginsburg, in her dissent, would be a lot stricter.

(4)(b)(ii) If I recall the facts of Griggs correctly (too lazy right now to look it up), the power company used a generic IQ test to hire entry level electricity technicians, which are the guys who drive around in vans and fix problems with electrical wires. The Court held that the generic IQ test was not “related to job performance.” Of course, if you are familiar with research into IQ tests, you would be aware that IQ tests are indeed pretty strongly correlated with job performance, and in fact are the best way to hire people for entry level jobs. However, most research about intelligence is largely disbelieved by the liberal elite because the truth invalidates the liberal worldview.

(4)(b)(iii) An employer can demonstrate job relatedness and business necessity by using the exact methods used by the New Haven fire department. They hired a testing firm to create a test that was related to firefighting, and the testing firm interviewed a bunch of people, did some research, and thus created a documentary record of job relatedness which held up in court. Why do so few private firms use this method to create employment tests? The answer is that the liberals have managed to convince everyone that tests don’t measure anything useful, despite the solid statistical evidence to the contrary, and that the business culture buys into the myth that you can learn more about a person by talking to them at a job interview than you can by giving them an objective test.

(4)(c) Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). My comment here is that it’s rather difficult for a plaintiff to prove this. In section II-C-2 of the decision, pp 30-33, the Court explains why there was no good alternative to using the existing test.

(4)(d) The Civil Rights Act of 1991 prohibits employers from correcting a disparate impact by race-norming the test scores. The text of this is found at 42 USC § 2000e–2(l)

(l) Prohibition of discriminatory use of test scores

It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.

On the one hand, this prohibition prevents outright test-based affirmative action, but on the other hand it makes it more difficult for employers to use tests and avoid disparate impact, because as we know, blacks usually score about one standard deviation lower than whites on g-loaded tests.

Comments

[Joe]

Sigma

This is very bad news for Obama. Now the Republicans have the opportunity to paint Obama as the filthy diversity pimp, antiwhite bastard hr really is.

I only hope some Rs show some balls at the confirmation hearing. You never know.

[Turambar]

Why does Harriet Meyers keep coming up? This probably gives more insight to your personality than Katherine Heigl.

Interestingly Red Sonja tried to duck the whole discussion but the case got dealt with at length here. And it was actually decided, not a wimp out.

[The Undiscovered Jew]

Over at Volokh Conspiracy, there's some disagreement over whether or not this decision throws a significant wrench into disparate impact:

http://www.volokh.com/posts/1246284294.shtml

Blue:

The claim of the City, upheld by Sotomayor, was that the very existence of a statistical discrepancy, was sufficent to prove illegal disparate impact. That's the most offensive part of disparate impact doctrine, and the part that leads most directly to de facto quotas. This opinion removes that plank.
6.29.2009 10:59am

[sabril]

What really lept out at me was this line from the dissent:

"The Court's order and opinion, I anticipate, will not have staying power"

Because if this opinion does have staying power, we're in fat city. The Court basically rejected the fundamental argument of HBD-denialists, which is that all groups are equal and therefore if a test produces disparate results, there must have been discrimination at work.

[Joe]

re "disparate impact"

If I were a lawyer arguing on behalf of Ricci, I'd call Charles Murray to document the results in "Human Accomplishment."

Barry, it's not "disparate" impact, it's "scientific" impact, you AA-snatching embarrassment!

[Turambar]

What sabril said. That line of Ginsberg's and her whole reasoning really are repugnant.

She grasps for the thinest of straws. The test was made by a professional company and review by an outside professional source in a different. State. No one in the Department saw the exam before it was given. That should be a good thing because it removes the possibility of department favoritism (which is she is Super Worried about since in 1972 the department was unbalanced).

But she sees it as bad.

Also there is this twisted logic:
"As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—even for surviving a summary-judgment motion—are highly problematic."

Heh? She just went through all the logic why an employer can be sued for disparate impact even though they take every possible step to construct their exam fairly. And that was apparently ok.

Now she is worried about people be sued?

[Joe]

From Power Line:

http://www.powerlineblog.com/

[Joe]

T, you have a point, but this is the most devastating part of the case: ALL the Supremes thought Sotomayor fucked up:

But this much is clear: the Court devoted 93 pages to a matter that Judge Sotomayor tried to dispose of in a summary order. Moreover, according to Ed Whelan, not a single Justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven.

[Joe]

Even Sailer agrees with my assessment:

Swing Justice Anthony Kennedy's majority opinion is fairly narrow, yet broader and braver than my prediction that he'd merely send it back down for retrial on the facts. It's a sizable defeat for the Obama Administration and their Supreme Court nominee.

[sabril]

HS, I agree with your analysis about disparate impact, but the unwritten rule seems to be that an employer who uses an objective test for hiring and promotion is asking for a lot of trouble if the results are discriminatory.

The Ricci decision seems to be undermining this rule and giving employers a safe harbor from discrimination lawsuits.

[HS: Clearly the liberals WANT employers to be so scared of written tests they abandon them entirely. This is evident in Ginsburg's dissent which I have yet to fully absorb and write about.]

[DaveinHackensack]

I made a similar point already on the relevant thread on Ta-Nehisi Coates's blog (here: http://ta-nehisicoates.theatlantic.com/archives/2009/06/scotus_rules_for_ricci.php ), but the four-fifths rule raises this question for me: Why are different average results by group considered implicit evidence of bias on a firefighter test and not on, say, the military's vocational test (the ASVAB) or on standardized academic tests such as the SAT, LSAT, MCAT, etc.? It seems logically inconsistent for unequal outcomes to be implicit evidence of bias on (non-military) job-related tests and not on other standardized tests.

[Me Like 'em Long]

So if IQ tests (masquerading as job competency tests - just make sure all the questions use job-related lingo*) are an allowable way to get around the awful Civil Rights legislation, isn't this a huge ruling? At least if HBD is correct...

* - if all firemen are yooknows and some yooknows are doobahs, some firemen are doobahs (Yes/No/Not Enough Info)

[We're Fucked]

"It seems logically inconsistent for unequal outcomes to be implicit evidence of bias on (non-military) job-related tests and not on other standardized tests."

Of course it is logically inconsistent. Never forget who you are dealing with. Go read what Sailer wrote:

http://vdare.com/sailer/090628_bazelon.htm

Yeah, we're fucked...

[Joe]

No, we're not fucked. This is an opportune time to bitch slap Barry's pimpin' agenda. Sotomayor will be confirmed like a dirty dog.

[We're Fucked]

Posted by: Joe | June 29, 2009 at 03:16 PM

The recent case was a holding action. Nothing more. If anyone thinks that a measly Supreme Court ruling is going to stop the anti-HBD, anti-white leftist agenda, they need to think again. I'm overjoyed at this ruling, but nobody should fool themselves into thinking that people like Bazelon, Obama, Sotomayor, Krugman, Ginsburg, Gore, etc...are ever going to stop. They'll only quit when they're dead.

[Bill]

HS,

I don't understand how you rationalize these two parts of your post. You say the following:

people [falsely] think that it’s always illegal to use tests to make hiring and promotion decisions

And then defend it by pointing to what the text of the law says, as if you believe that the text of what the law actually says is a good guide to how courts will find in actual cases. Then, in the same post, you say that:

The Court held that the generic IQ test was not “related to job performance.” [even though] IQ tests are . . . the best way to hire people for entry level jobs

So, if judges don't like what would happen if they apply the law as written, they make stuff up or selectively ignore stuff until they get the result which would follow if the law said what they wished it said.

You're not alone in this, obviously. Most lawyers seem to talk this way. But what does it mean to talk this way?

In the pre-Ricci world, if one were advising an actual client as to the actual likely outcome were they to institute an IQ test in hiring or promotion, what would a competent lawyer do? If the answer is tell their client not to use the test because of the extreme risk of losing a lawsuit, then the law actually is that IQ tests are forbidden, even if the pretty ink patterns on the pretty paper in the pretty lawbook look remarkably like they say the opposite.

Forbidden means "you get severely punished if you do it" not "some writing on some paper somewhere says no! no!"

If everything in your post is true, I think it is perfectly correct to say "IQ tests are forbidden in hiring and promotion."

[HS: The law is that a test needs to be job related in a way that's more concrete than all tests are g-loaded and g is correlated with job performance. The New Haven test was job related because it tested firefighting knowledge. This makes it more expensive to develop tests because you can't just buy an off-the-shelf IQ test, but any big corporation has the ability to develop tests if it believed in the benefits of testing. It only cost New Haven $100,000 to create it's test.]

[BrunoBrazil]

Actually, this is more a problem of business culture than legal. Look at HR magazines: they always mention modern numerology (group dynamics, Meyer-Briggs, "competence interview", "fit
interview" and far other futilities).

The most stupid selection I ever did was a group test where I was asked to bring thrre objects and talk about them. It was for a teaching job. Probably, I did not bring the right objects, as I never heard of them again.

Even outside the USA and the political correctness, the HR personnel still thinks that endless interviews are far better than a job-related objective test.

In Europe, some governments, like France, hire through written tests. Why can´t the private sector do the same?

[Joe]

Bill

We have to make it very clear to the diversity pimps that we are fed up with their pimpin' ways. We need to have the cojones to ask Sotomayor the following questions:

1. Why do we need a wise Latina on the Supreme Court with 2d-rate writing skills who is obviously not intellectually exceptional?

2. Why is it important to have a diverse court if diversity requires vastly lowering standards?

3. Why do you think the test Ricci took was biased?

4. Do you think it is anti-American to deny an American citizen the right to advance himself?

5. Do you believe in the meritocracy?

6. What were your LSAT scores?

[sabril]

"It only cost New Haven $100,000 to create it's test."

Steve Sailer had a blog post a few weeks back talking about how custom tests are a growth industry.

[BrunoBrazil]

"The answer is that the liberals have managed to convince everyone that tests don’t measure anything useful, despite the solid statistical evidence to the contrary, and that the business culture buys into the myth that you can learn more about a person by talking to them at a job interview than you can by giving them an objective test".

Actually, the problem is that HR doesn´t believe in written tests. When did you see a HR person defending them? Even outside America, who does written tests? Only the French government.

The worst of all was some years ago, when I was at a job fair and I heard lectures about two very stupid hiring
practices:

1- Astrology. Sigma, in order to be hired as a tax attorney, must be of the right sign and have the right astrological map. Where does Saturn meet Mercury? This question is fundamental to know if Siggy will have a good job performance or not.

2-Grafology: evaluating your handwriting. Where does you handwriting lean? Do you write, in a blank sheet of paper, oriented to the top or the bottom of the sheet? In order for Siggy to get the tax lawyer job, it is better that his handwriting is up to the standard (which is not necessarily the neatest handwriting). If you are a job seeker and you get grafology tests, better to buy a book on such tests and change your handwriting to be perfect according to the test standard.

3-Rohrschach test: lots of stains in some cards. Hope you get the right answers for the stains and not to show any interesty in violence or sex. Remember, however, that the use of the test is subjective. If both shrink A amd shrink B test Sigma and the latest gives the same responses to both tests, A and B will come to different conclusions about Siggy´s competence to be a tax lawyer.

[sabril]

Forbidden means 'you get severely punished if you do it' not 'some writing on some paper somewhere says no! no!'

I agree. If nothing else, Ricci is a big splashy example of the courts endorsing the concept that whites can dramatically outperform blacks on tests even in the absence of bias or discrimination.

[Joe]

Remember, the diversity pimp in chief's next selection will seal it for the pimpin' agenda. Let's be clear on this point. Sotomayor and Obama need to be thoroughly humiliated--NOW.

[Joe]

From Pajamas Media:

http://pajamasmedia.com/blog/high-court-overturns-ricci-bad-news-for-sotomayor/