Ricci v. New Haven and Judicial Activism. UPDATE BELOW

Judge Sotomayor has been taking heat for being a "judicial activist" who will allow her racial and gender identity to influence her decisions - instead of the law. Exhibit "1" is her decision in Ricci v New Haven where she rejected the appeal of a fire fighter who claimed that the city of New Haven intentionally discriminated against him by discarding the results of a written test for promotion. New Haven rejected the written test because white fire fighters performed systematically higher on the test than fire fighters of other races.

What the detractors leave out is any analysis regarding whether her decision was correct?

Under Title VII, there are two ways an employer can discriminate against a member of a protected class regarding promotions. They can deny someone a promotion based on their membership in a protected class, or they can employ a promotion criteria that systematically disadvantages members of a protected class. The second method is called "disparate impact" discrimination. Under Title VII, employers are liable for discrimination if they employ promotion criteria that have a disparate impact on members of a protected class, unless they can also demonstrate that the promotion criterion addresses an essential aspect of job performance.

If a case were to be litigated, the plaintiff would have the initial burden of proving by a "preponderance of the evidence" - meaning "its more likely than not" - that the promotion criterion had a disparate impact on members of a protected class, including the plaintiff himself. If a plaintiff meets this burden, the burden shifts to the employer, who must articulate a non-discriminatory performance based reason for employing the promotion criteria. If the employer fails, it loses and is liable for discrimination.

If the employer succeeds, the burden shifts back to the plaintiff to show that the promotion criteria is unrelated to an essential aspect of job performance. If the employee succeeds, he or she wins and the employer is liable. If the employee fails, he or she loses and the employer is not liable.

The key point to keep in mind with regards to "disparate impact discrimination" is that it does not require the employer's intent to discriminate. The law places a duty on employers to insure that its promotion criteria relate directly to job performance. An employer does not have to intend to discriminate. It is liable under Title VII, if its promotion criterion has a non performance related disparate impact on members of a protected class.

In the Ricci v. New Haven case, the written promotions test had a disparate impact on blacks and Latinos (they didn't perform as well on the test as whites did). The City of New Haven, undoubtedly on the advice of counsel, decided to scrap the test results because it worried that relying on the written promotion test would violate Title VII.

Fire fighter Ricci (who scored well on the test) sued the City of New Haven. He alleged that New Haven intentionally discriminated against him by disregarding the test results that would have resulted in his being promoted. The Federal District Court ruled against Ricci and the 2nd Circuit Court of Appeals, including Judge Sotomayor, affirmed the District Court's ruling. The courts held that the City of New Haven did not discriminate against Ricci. The City simply followed established law on disparate impact discrimination.

People may disagree with disparate impact discrimination law. But it is and was the law (and will be the law until the Supreme Court changes it). Judge Sotomayor followed established precedent in rendering her decision. The race of the plaintiff (or the other firefighters), or her personal agendas, had nothing to do with her decision.

Honestly. If this is exhibit "1" against Judge Sotomayor, her opponents are in serious trouble.

Joe H.

UPDATE: Sometimes people who are trying to pursue an idelogical agenda get lost in a circle of argument. In this single op-ed, Charles Krauthammer (1) criticizes the liberal idea that "empathy" has any legitimate role to play in judicial decision making; and (2) criticizes Judge Sotomayor's decision in Ricci v. New Haven, based in part on how unfair that decison was to Ricci (who had worked hard to overcome a learning disability).

I think this contradiction illustrates the virtue of dispassionate reason.