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High court recognizes reverse discrimination

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The Tampa Tribune

Published: June 30, 2009

Frank Ricci, a New Haven, Conn., firefighter, did what he was supposed to do in seeking a promotion: He spent a lot of time and money preparing to take the examination required by the city.

When the results were released in 2004, he passed, but most of the minorities who took the test did not fare as well. So rather than promote from among the white firefighters who met the requirements, New Haven refused to certify the test results.

The city recognized the need to promote racial balance in the fire department. But its response was to deliberately discriminate against the 17 white and two Hispanic firefighters eligible for promotion.

Deprived of their goal, the firefighters sued. They lost before a trial judge, who said there was no evidence the test was biased or any suggestion of intentional discrimination by the city, and in the 2nd Circuit Court of Appeals, which includes Supreme Court nominee Sonia Sotomayor.

But Monday, the conservative majority on the U.S. Supreme Court, reversed in a 5-4 decision that merits applause.

Polls show most people don't think what happened to Ricci and his fellow petitioners was fair. The firefighters followed the city's selection criteria. The city changed the rules in the middle of the game. What happened to them was discrimination, plain and simple.

"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 court.

The dissenters sympathized with the men, but Justice Ruth Bader Ginsburg said they had "no vested right to promotion."

That's true. But what the city did was scrap an already administered test because of how it affected a particular race. Mind you, there was no evidence the test had any racial bias. Yet the city seemed to say hard work and effort won't pay off if there's an unintended impact. That's not the American way. What workers want is equal treatment and employment opportunities.

The majority recognized reverse discrimination; the dissenters, the city's attempt to overcome a history of employment inequality within New Haven's fire department. The majority focused on the disparate treatment of the firefighters; the dissenters, the disparate impact on minorities in the department.

Now, absent a "strong basis in evidence" cities won't be able to toss a test to avoid disparate racial impacts. They can't overtly discriminate against job candidates to avoid the impact on a racial group.

This does not mean that cities cannot take steps to help minorities advance, including changing the promotion criteria. But this cannot be done after candidates have already gone through the process.

It's a tough issue. The challenges facing minorities should not be dismissed. But the high court got it right. Changing the rules whenever you are not pleased with the results is no way to achieve equality.

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