Wrong About Ricci

Yesterday the U.S. Supreme Court issued its much-anticipated decision in Ricci v. DeStefano, the New Haven firefighters case. While the Court’s decision was disappointing in many respects, it preserved employers’ ability, and obligation, to ensure freedom from discrimination in the workplace.

Ricci involved the city of New Haven’s attempts to ensure the fair and accurate selection of captains and lieutenants in its fire department. After administering a new promotions exam, the city found that the test was severely discriminatory in practice, excluding all African-American applicants from consideration. Contrary to most news reports about this case, that was the beginning of the city’s careful inquiry, not the end.

Because what race you are is no predictor of your firefighting skills, the city took that lopsided outcome as a sign that the test might be flawed, triggering an extensive research and hearings process. In four days of hearings, the city’s concerns were confirmed. They learned of multiple flaws in the existing selection process, that it did not reliably select the most qualified candidates, and that other Connecticut cities like Bridgeport had effective selection systems that, unlike New Haven’s, were not discriminatory in practice.

Based on that evidence, the city set aside the results of the flawed test. They were then sued by several white, and one Latino, firefighter, who had done well on the test and argued that cancelling it discriminated against them based on their race.

The district court and court of appeals ruled for the city, finding that it had the power under our civil rights laws to set aside a flawed and discriminatory selection process in order to seek a better one. The US Supreme Court took up the case and, yesterday, by a 5-4 margin, the high court disagreed.

The Supreme Court’s decision is disappointing because it makes it harder for employers voluntarily to ensure a workplace free of discrimination. The Court adopted a new standard in such cases, holding for the first time that employers must have a “strong basis in evidence” that an existing process is discriminatory in order to set it aside.

That’s overly burdensome, because it requires employers to begin documenting a case against themselves in order to alter a business practice that they believe to be flawed. And it ignores the significant efforts that New Haven actually took in this case—days of hearings, expert testimony, research on alternative practices—before deciding that it’s existing selection process was inaccurate and unfair.

As Justice Ginsburg noted in her dissenting opinion for four members of the Court, the firefighters who did well on the original test warrant our empathy, but no one has a right to be hired pursuant to a flawed or discriminatory selection process.

At the same time, yesterday’s decision did have some encouraging elements. A majority of the Justices clearly understand that employment discrimination remains a serious problem in our society, and that employers and government have a responsibility to take proactive measures to address it. Justice Kennedy’s opinion for the Court, for example, noted that “employers’ voluntary compliance efforts…are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination.”

There’s no question that we’ve made a lot of progress in our country when it comes to race relations. But research and experience make clear that discrimination continues in different forms. For example, research has found that identical resumes with African-American-sounding names like “Jamal” receive fewer call-backs than white-sounding names like “Brad.” And researchers at Princeton University found that white job applicants with criminal records on their resume received more call-backs than identically-qualified African American applicants with no criminal record. A friend-of-the-court brief [1] filed by The Opportunity Agenda assembled much of this evidence.

As Justice Ginsburg noted in her dissent, fire departments around the country, including in New Haven, have a long history of excluding minorities and women. And that history is often perpetuated today, through old boy networks, word of mouth hiring, and, frequently, flawed and biased testing procedures. As Justice Ginsburg explained in her dissent, “while many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the over-whelming majority of minority applicants were ‘first-generation firefighters’ without such support networks.”

Despite yesterday’s disappointing ruling, the law still requires employers to avoid policies that are discriminatory in practice, and there is still a range of steps that employers can take voluntarily to make sure they are providing equal opportunity in the workplace. Specifically, for example, employers must scrutinize their selection procedures closely for fairness and accuracy before administering them to actual candidates. And when there appears to be discrimination in practice, they need to collect additional information about potential flaws and alternatives before acting either way.

Another important step is moving toward more accurate and comprehensive selection criteria, rather than written tests, especially for jobs like fire department captain, that focus on leadership and decisionmaking ability in the field. Bridgeport, Connecticut and many other departments use assessment centers that effectively measure leadership and communication skills, as well as applicants’ ability to handle emergencies. Bridgeport’s system promotes the most highly qualified candidates and, unlike New Haven, that city’s fire lieutenants and captains are largely proportionate to the city’s Latino and African-American populations. As Matthew Colangelo of the NAACP Legal Defense Fund told the New York Times [2] yesterday, “Most cities have long since realized that a pencil and paper test, which largely measures memorization, is not the best way to identify who will be the best leader.”

Now that the case has been decided, the Obama Administration has an important role to play by giving employers guidance on their equal opportunity obligations in light of the decision. The Equal Employment Opportunity Commission, the Department of Justice, and the Labor Department should work together to provide clear guidelines and practical recommendations.

That task has greater urgency today, because of federal economic stimulus investments that the White House says will create or save 3.5 million jobs. Ensuring an equal opportunity to access those jobs irrespective of race and gender is the responsibility, not only of enlightened employers, but also of our elected leaders.