Bias ruling could alter hiring practices

WASHINGTON — The U.S. Supreme Court ruled yesterday that white firefighters in New Haven, Conn., were denied promotions unfairly because of their race.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no
evidence it was intentional.

New Haven was wrong to scrap a promotion exam because no black and only two Hispanic firefighters were likely to be made lieutenant or captain based on the results, the court said yesterday in a 5-4 decision. The city said it had acted to avoid a lawsuit from minorities.

University of Richmond law professor Carl Tobias said he believes the decision will have important consequences in public-employment situations, particularly in employee-testing and promotion practices.

“Basically, I think what the 5-4 majority is saying is [that] municipalities — and states, too, I suppose — need to be especially careful when they are using tests in this situation, and especially when race is an issue.”

Tobias said it appears the court found that New Haven didn’t justify or substantiate its reasons for throwing out the tests, which can be a high burden for a city to meet.

“I do think the court is saying that you have to have pretty strong evidence if you give a test and decide later that you’re not going to let it count, as happened here,” Tobias said.

The decision principally will cause localities to look more closely at their testing practices and how they make decisions about promoting people, Tobias said.

But that in turn could affect a locality’s efforts to diversify the composition of its employees in certain departments under Title VII of the Civil Rights Act.

“And that’s where I think it gets difficult, is how to do that,” Tobias said. “It may make it more difficult to diversify, or the localities will have to have stronger justifications if they want to do something like New Haven did here.”

Reversal for Sotomayor: Yesterday’s ruling reversed a decision that high court nominee Sonia Sotomayor endorsed as an appeals-court judge. That could give Sotomayor’s critics fresh ammunition two weeks before her Senate confirmation hearing.

Sotomayor and two other judges on the 2nd U.S. Circuit Court of Appeals upheld a lower-court ruling in favor of New Haven.

Conservatives say it shows she is a judicial activist who lets her own feelings color her decisions. On the other hand, liberal allies say her stance in the case demonstrates her restraint and unwillingness to go beyond established precedents.

Majority opinion: In yesterday’s ruling, Justice Anthony M. Kennedy said, “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.”

He was joined in the majority by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas.

Opposing view: In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”

Justices David H. Souter, Stephen G. Breyer and John Paul Stevens signed onto Ginsburg’s dissent. Speaking dismissively of the majority opinion, she predicted the court’s ruling “will not have staying power.”

Yesterday was probably Souter’s last day on the court. He is retiring.

Test for job candidates: Yesterday’s decision has its origins in New Haven’s need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty-six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

Fear of lawsuits: The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a “disparate impact” on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law’s prohibition on intentional discrimination. The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results. 

Staff writer Mark Bowes contributed to this report.