The Supreme Court ruled Monday in favor of the white fire fighters who claimed their New Haven, Conn. Fire Department discriminated against them while trying to avoid a possible lawsuit from African-Americans.
When the promotion exams were given and the results tabulated, it was determined by the Department that the test resulted in a “disparate impact”, and should be tossed out. Disparate impact is the term for (often inadvertent) unfair results of some action: for instance if a business is laying off all their highest paid employees, that action may have a disparate impact on older workers.
Since so few people of color passed the test, it was felt that the test was somehow discriminatory, and left the Department vulnerable to a discrimination claim.
Low & behold, by tossing out the results, the Department set itself up for a claim, but filed by the white Firefighters who had passed the test. I can hear the department scream: “Damned if we do, damned if we don’t!”
In a 5-4 decision, the Justices decided that "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."
In the dissenting opinion, Justice Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.
Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.
"Today's decision sets these paired directives at odds," she said.
In a year when we expect to see legislation that looks out for the underdog and places workers rights ahead of those of the employer, it seems we can expect some interesting judicial decisions, too.
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