In late June, the U.S. Supreme Court issued a 5-4 ruling which has been widely reported as prohibiting “reverse discrimination” in employment. The case, Ricci v DeStefano, involved a written promotion examination given to New Haven, Conn. firefighters, the results of which were eventually thrown out because otherwise no African American applicants would have been promoted

The Ricci case has seemingly been much misunderstood by the media, as well as by certain U.S. Senators inquiring about the ruling during Judge Sotomayor’s recent confirmation hearings. Because the ruling has assumed a high political profile and has significant ramifications for employers nationwide, it is useful to revisit the ruling and its underpinnings.
The problem presented in the case was that the employer justifiably feared that unless it threw out the result it might have been exposed to a race discrimination lawsuit, alleging that the test had a “disparate impact” on minorities, in violation of the 1964 Civil Rights Act. Thus, this was a difficult and close case in which the employer was essentially caught between a rock and hard place

The Supreme Court’s narrow-majority opinion essentially concluded that the fear of being held liable for “disparate impact” discrimination (test results that would have promoted no blacks) did not excuse engaging in “disparate-treatment” discrimination (throwing out the results based on race).

The difficulties presented in the case, and the divided court’s majority and dissenting opinions, reveal the unsettled nature of the employment discrimination debate in America. At issue was the controversial question of whether historical patterns of discrimination must be completely disregarded in favor of a color-blind approach going forward.
A bare majority of the Supreme Court now suggests that it is best to err on the side of being “color blind,” even in sectors, such as public fire departments, where patterns of racial discrimination have been judicially established over the years.

Judge Sotomayor was one of three judges on the Second Circuit panel whose decision was ultimately reversed by the Supreme Court. Her critics claimed that the decision had departed from existing law without stating adequate reasons for doing so. In fact, the court simply followed existing Circuit precedent and adopted the exhaustive reasoning expressed by the lower court in doing so. Indeed, it was the Supreme Court’s subsequent ruling–not that of the Sotomayor panel–that effectively made “new law.”
Some commentators opine that the Ricci case could mark the beginning of the end of affirmative action efforts. Others feel that the result could be temporary, depending upon the ideological balance on the high court. It is widely recognized that conservatives gained a 5-4 majority during the Bush administration, with the retirement of Justice Sandra Day O’Connor, who had been generally supportive of affirmative-action measures. Yet the balance on the court could quickly change again if President Obama is given the opportunity to replace one or more of the conservatives during the balance of his term.

In the meantime, a color-blind approach is likely the employer’s “least worst” option for avoiding an employment discrimination suit. A color-blind approach seems to be a particularly safe option in a locale such as Guam, which enjoys a richly diverse ethnic mix, and where the terms “minority” and “majority” are not particularly meaningful when applied to particular workplace settings.

– R. Todd Thompson is a partner in the law firm of Mair, Mair, Spade & Thompson. He can be reached at [email protected] This information is not intended as a substitute for consultation with your own legal counsel.