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.
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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.
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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.