When Life Just Isn't Fair

So is it discriminatory to prohibit discrimination? That’s the question.

Or maybe you don’t think about such things. But if you’d worked for a few decades in corporate human relations – on the systems side, where you have to come up with the comprehensive historic data regarding pay, performance and promotions for the lawyers each time someone filed a discrimination or wrongful discharge suit – you tend to think of such things. There were the demographic tables by job title and by department that you were asked to sort six ways from Sunday – by race, by age, by sex, by disability, by all sorts of things, over precise timeframes and in all sorts of combinations. Someone was always claiming they’d been wronged, and they’d hired an attorney, who demanded data. The corporation’s law firm would then tell you what they’d like to see, so they could decide what they had to release to the courts. Such things can keep a whole crew of programmers busy running increasingly complex queries against the personnel data in the mainframes. It’s a living.

But in idle moments you came to wonder about reverse discrimination – making sure someone was promoted on merit alone, or someone else was discharged for cause, was always a bit of a zero-sum game. For every winner there seemed to be a loser. Sure, someone was claiming all that stuff about cause and merit was a shame, that there was an underlying pattern of bias at play, and an analysis of the actual data would reveal that pattern. But those who, after the analysis and adjustments, didn’t get the promotion after all might easily claim you were unfairly favoring a woman or minority or whatever, giving them a break and ignoring their merits – damn it – and that was just as discriminatory. There was only one job slot, and they were pissed that they’d been cut out by you trying so hard to be fair, which was unfair to them.

Such claims have been made since the late seventies – you don’t stop screwing over black folks and women by telling white men to go pound sand. That’s reverse discrimination as they say:

A term referring to the practice of excluding a classification or race of people who have not been historically discriminated against, usually whites, from positions that are made available exclusively to persons or groups that have traditionally been the subject of discrimination, or who otherwise benefit from affirmative action programs. The term has been applied to the practice of reserving positions for minorities in school admissions programs, corporate promotions, and rehiring of blacks with less job seniority than whites. The contention that affirmative action violates the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act, 42 U.S.C. § § 2000d et seq., has been the cause of differing opinions by members of the Supreme Court.

If affirmative action violates the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act, doesn’t any attempt to make things fair run the risk of being unfair, as someone will win and someone will lose? And of course what’s really fair is always rather subjective. If you’re a parent you know the endless hours you spent dealing with the whining kid saying it’s just not fair – difficult homework, or how Sally got a pony and they didn’t, or whatever it is. You can fix the situation (usually impossible), or very patiently explain that, yes, it really is fair when you think about it (almost always impossible, as kids don’t want to hear that), or tell your kid that life isn’t fair and they’d better get used to it (which sort of settles the matter). If you’re a politician, or a pundit, or a federal judge, you end up doing the same thing.

That seems to be what the Ricci case was about:

In a closely watched case, the U.S. Supreme Court ruled 5-4 on Monday in favor of white firefighters in New Haven, Connecticut who filed a racial discrimination suit against the city that denied them promotions.

The firefighters alleged that the city of New Haven unlawfully threw out a test that was used to determine promotions for the local fire department after black and Latino applicants failed to score high enough on the exam.

The city argued that they were obliged under the law to examine the racial impact of the test after minority firefighters failed to score high enough, but the white firefighters argued that the initial test results should have been accepted.

“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,” Justice Anthony Kennedy wrote for the majority. He was joined by Justices John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas, who is the only African member of the Court. …

The case was Ricci v. DeStefano – and you’ll find a complete discussion of the test itself here. It was questionable, maybe. But in short, the Supreme Court held that it’s unlawful race discrimination for an employer to refuse to act on the results of a promotion exam when they realized that the test eliminated a disproportionate number of minority candidates – in this New Haven case, all the black firefighters up for promotion. The City of New Haven felt that result made the test itself look biased, and they wanted to avoid lawsuits about it. The white guys who studied hard and did well were pissed off. They sued.

The controversy was that the woman Obama has nominated for the Supreme Court – Sonia Sotomayor – was part of the three judge appellate panel that upheld the city, and she was reversed by the Supreme Court, who sided, five to four, with the white firefighter guys. So you got the usual raving rants – now everyone knows she’s a racist, an angry Hispanic woman who hates white men, she was rebuked by smart people and is clearly out of her league and knows nothing, and empathy is crap, and so on and so forth. It was a bit tiresome and not worth much discussion. There were bigger issues at play.

Those have been covered by Richard Thompson Ford, who teaches at Stanford Law School and is author of The Race Card: How Bluffing About Bias Makes Race Relations Worse – “Ford, a professor of law at Stanford, argues that ubiquitous accusations of discrimination in the United States frequently distract from serious racial injustices, which, in the ambivalent aftermath of the civil-rights era, ‘stem from isolation, poverty, and lack of socialization as much as from intentional discrimination or racism.’”

He thought about these things, and, in Slate, has argued that Sonia Sotomayor rejected the New Haven firefighters’ claim because it threatened to burn down civil rights law:

New Haven’s decision may sound like blatant racial favoritism, but in fact the city rejected the firefighter exam because the test violated Title VII, the federal civil rights law that prevents discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that’s inadvertent as well as intentional. Ricci’s claim is that the city’s effort to comply with Title VII is itself race discrimination (under the 14th Amendment to the Constitution and under Title VII itself).

But Ford argues that Ricci’s claim would undermine an important part of modern civil rights law:

There are two ways an employer can discriminate according to Title VII. He can intentionally discriminate by making race a factor in employment decisions – choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact – in other words, that screens out a particular group for no good reason. New Haven claims that the test it tossed out had a disparate impact. Eight black, twenty-five white, and eight Hispanic firefighters took New Haven’s test for promotion to captain; three black, sixteen white, and three Hispanic candidates passed. Nineteen black, forty-three white, and fifteen Hispanic firefighters took the test to become lieutenant; six black, twenty-five white, and three Hispanic candidates passed. This result counts as discriminatory under the rules of the Equal Employment Opportunity Commission. New Haven was right to worry about the possibility of a lawsuit from black firefighters if it accepted the results of the tests.

So there was no good out, either way. Be accused of intentionally discriminating against white folks, or be accused of using a trick test to cut out the black folks, as the statistics implied. They chose the former, and Ricci sued.

Ford noted there was another factor:

The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam – no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test. More reason for the city to worry about a lawsuit by the African-Americans who were to be passed over.

And of course there was the fallout:

Conservatives think the law against disparate impact discrimination does more harm than good. For instance, John McWhorter, writing for the New Republic, portrays New Haven’s position in Ricci as the latest iteration of the tired argument that standardized tests are “culturally biased” against racial minorities. McWhorter decries the “rhetorical contortions that excuse black people from challenging examinations.” And Abigail and Stephan Thernstrom insist in the Wall Street Journal that even “sharp racial disparities” in testing results “are not an argument for racial quotas.” Both McWhorter and the Thernstroms worry that a law that is premised on lower performance by racial minorities has become self-fulfilling: Such racial disparities, the Thernstroms admonish, “should not be regarded as a permanent fact of life.”

It was all variations on the same theme all parents know all too well. It’s just not fair – and yeah, well, get over it. But Ford argues what New Haven did actually was fair, which is what no kid wants to hear:

…properly applied, disparate impact law doesn’t excuse poor performance, nor does it require quotas. Instead it smokes out hidden bigotry and requires employers to avoid unnecessary segregation of the work force. Suppose an employer wants to keep women out. Knowing that he can’t just put a “women need not apply” sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias. Now, suppose an employer has no desire to discriminate against women but uses a weightlifting test simply because he thinks, all other things equal, stronger employees are better than weaker ones. Disparate impact law also prohibits this: It requires the employer to reconsider job qualifications that favor one race or sex, unjustifiably.

Of course, there might be a good reason to prefer people who are physically stronger – or who score higher on a written exam. The law gives employers a chance to prove that the discriminatory criteria are job-related. The idea, then, isn’t to make an employer hire less qualified women or minorities over more qualified men or whites. It’s to make sure the employer is testing for job qualifications, not unrelated ones.

That is what New Haven was up to here – they weren’t sure they could prove that they were actually testing for job qualifications. They played it safe, and lost.

But note how Ford describes the dynamics at play:

Race discrimination has locked minorities into poor neighborhoods with failing schools for generations: As a result, blacks, as a group, continue to perform less well on written exams than other races. Perhaps New Haven’s black candidates could overcome these disadvantages by studying harder, like Frank Ricci did. But Ricci took extraordinary steps to ace the test – six months off work to prepare and $1,000 on tutoring. An equal-opportunity law that’s premised on everyone taking such steps isn’t likely to do much good in the real world of scarce time and money. And would encouraging the equivalent of intense cramming for the final really help employers select the best firefighter for the job?

So Ford’s thought is that prohibiting tests “that needlessly screen out underrepresented groups is a sensible way to ensure that employers have both qualified and integrated work forces.” Sotomayor and the Second Circuit thought so too, and rejected Ricci’s claim, unanimously.

Still, New Haven blew it in terms of public relations:

The timing of New Haven’s decision is what makes it look so bad: It was a cruel bait-and-switch to reject the results after Ricci and others had studied for the exam and done well.

But Ricci actually was not attacking the timing of New Haven’s decision. That never came up. He was saying they should not have been considering the racial impact of the exam at all, even if the law said they were required to do just that.

So Sotomayor and the Second Circuit followed the law – the City of New Haven did nothing wrong at all. And the conservative Supreme Court rewrote the law from the bench. Ford argues that Ricci’s position “threatens to burn down one of the nation’s most important civil rights laws.” And then it kind of did just that.

After the decision, Ford was quite worried:

The plaintiffs in Ricci were undoubtedly sympathetic: hardworking public servants – seventeen of them white, one Hispanic – who expected that the exam they studied for and did well on would determine their eligibility for moving up the ranks. But their legal argument is the latest in a long-standing campaign to turn civil rights laws against themselves. …

Until this Monday, lawyers and judges thought of disparate impact law as a logical extension of the law against intentional discrimination: The premise of the discriminatory impact prohibition is that an employment practice that unnecessarily screens underrepresented groups from the work force is, in effect, just as discriminatory as a “whites only” sign.

Ford had argued that Frank Ricci’s case was a loser under established law and the district court was right to dismiss it on summary judgment, and Sotomayor and the Second Circuit right to reject it on appeal, and why the U.S. Court of Appeals for the 2nd Circuit Court was right to reject Ricci’s appeal. Now all bets are off:

Now the Supreme Court has changed the law, recasting disparate impact law as a kind of affirmative action – an unfair racial preference – rather than an equal-opportunity law.

And it gets weird:

Why would it be discriminatory to discard the results of an employment exam in order to avoid a discriminatory racial impact but not discriminatory to choose one exam over another in order to avoid such a racial impact? If an employer chooses Exam A instead of Exam B because Exam A is more likely to increase the number of successful minority applicants, the members of the disfavored racial groups may well have a reverse discrimination case similar to Frank Ricci’s. Since choosing the exam with the smallest racial impact is exactly what disparate impact law requires of employers, it’s possible that any application of disparate impact law is discriminatory. Indeed, in his concurring opinion in Ricci, Justice Scalia looks forward to the day that the court will decide whether the disparate impact prohibition of Title VII is unconstitutional race discrimination under the equal protection clause of the 14th Amendment.

Ford walks through a whole slew of examples of where this could lead, but settles on this:

One could say that any effort to combat racial inequality is itself race conscious and therefore discriminatory. So far, no one has been bold enough to make this argument against laws prohibiting intentional discrimination on the basis of race or sex, but opponents of gay rights have made just such an argument, attacking laws that prohibit discrimination on the basis of sexual orientation as “special rights.”

He notes that has come to be Scalia’s position – no one gets special rights, with an odd definition of just what is special that is getting odder all the time:

Of course, for the gay person looking for a job or an apartment and facing bias at every turn, basic protection against discrimination doesn’t seem like favoritism. But taken out of their social and historical context, all civil rights can be made to look like special rights. Civil rights laws aren’t just derived from abstract principles of justice – they also reflect a policy decision about how to best direct the scarce resources that must be dedicated to the enforcement of the law and the litigation of disputes. Federal law doesn’t demand that employers treat all of their employees fairly in every respect; it prohibits only unfairness that’s based on race, color, sex, religion, national origin, age, and disability. (I hope we’ll add sexual orientation to this list soon.) …

So is it now discriminatory to prohibit discrimination? Ford hopes not:

This country has a long and ugly history of specific types of discrimination, such as discrimination on the basis of race. Although things have changed for the better, racism isn’t a thing of the past yet. And the continuing effects of past racism still limit opportunities for many racial minorities today. Addressing these injustices isn’t doing anyone a special favor – it’s simply doing justice.

And this one case, from one firefighter, seems to change everything:

The majority in Ricci ignored the social and historical context that defines civil rights law, just as it ignored more than three decades of judicial precedent and the explicit endorsement of Congress, which wrote disparate impact law into Title VII in 1991. By means of shameless judicial activism, it turned the civil rights tradition against itself and against social justice. The logic that condemned New Haven’s awkward but defensible attempt to avoid the discriminatory effects of its promotion exam can be extended to condemn any attempt to prevent any form of discrimination.

Ford says this is the future:

It will take only a sympathetic plaintiff, a hapless defendant, some bad facts, and some clever lawyers to make even the most well-established civil right look like a special privilege.

And that makes this an odd thing to have happened in the first months of the administration of our first black president. But as many a conservative now says, someone has to protect the older, white, straight man. It seems they can’t deal with the competition.

On the other hand, up in the Human Resources Information Center of more than one major corporation, life will be a bit less hectic.

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