Walter, I think you’re right that the consequences of Ricci are clearest when cities give tests for promotion or hiring and then realize those tests have had a disparate impact by eliminating minority candidates. As Ginsburg writes in her dissent, “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 … are highly problematic.” That is bad for New Haven and other cities that give tests like these, then wish they hadn’t.
But here’s the good news: If cities opt to use so-called assessment centers for these kinds of promotions, they should be home-free. And, as Ginsburg explains in her dissent, assessment centers sure look like a better way to make these determinations. So maybe today’s ruling will give cities an incentive to move away from these highly technical tests of questionable value and toward measures that get at all the qualities you’d want in the leadership of a fire department. Also, as John Payton points out in Dahlia’s post, minority firefighters can still sue for disparate impact under the same standard they could sue under before. What’s really changed is what a city that doesn’t want to defend its test against such a lawsuit must do.
In the short-term, though, New Haven’s fire department will soon have 15 new lieutenants and captains, it seems. And in a city that is about two-thirds black and Hispanic, 13 of the 15 will be white, perhaps two Hispanic, and none African-American, since Mayor John DeStefano said today that the city would go ahead and certify for promotion the top scorers on the 2003 test at the heart of the lawsuit. That is thoroughly discouraging to Wayne Ricks, a black firefighter of 27 years, who came within a few points of a promotion to lieutenant during the round of promotions before the one at issue in the case. “It’s really unfortunate, and I think this will just make it more difficult for African-Americans to gain employment in fire departments and police departments,” Ricks said.
Lead plaintiff Frank Ricci, on the other hand, framed his victory in terms that evoke America, the land of opportunity: “If you work hard, you can succeed in America, and all of these guys worked hard,” he said on the steps of New Haven’s federal courthouse. True. But only part of a larger truth. And in historical terms, a strange sort of rhetoric to hear a white person laying claim to.
The mayor, for his part, praised all the members of his fire department for doing their jobs well despite the lingering conflict and bitterness over this litigation. And he said, “I have no doubt that there is a set of firefighters who feel justified right now and that they’ve played by the rules … and another group who feel like the rules are stacked against them and as soon as they start to get ahead, the rules change.” Watch him here. Dahlia, you asked whether the two parts of Title VII were really on a collision course with each other. I don’t think they have to be. But maybe once this test had been given and then taken away, this Supreme Court couldn’t look at the case or the law from any other vantage point.
Thanks for letting me crash the Breakfast Table party!