In ruling 5-4 against the City of New Haven, the Roberts Court provided a peek into the most persistent misunderstanding surrounding race discrimination– the problem of racially privileged legacy often tied to nepotism. The case revolves around a promotional test developed by a private company but administered by the city of New Haven and used to determine firefighters eligibility for promotion from lieutenant to capitan.
When the results of the test yielded no black firefighters eligible for promotion, and fearing that moving forward on the results of the flawed test would subject the city to a disparate impact discrimination suit by black firefighters, the city decided to scrap the test and create a new assessment for promotion. But before the city was able to create any new form of evaluation the white firefighters sued, demanding the city stick to the results of the first test. As Justice Souter noted in oral arguments the city was in a “damned if you do, damned if you don’t” situation and faced lawsuits no matter which direction it took.
In challenging the city’s use of the test the evidence produced a complicated picture of race relations among firefighters. Of the candidates who actually took the exam, every single minority candidate was a first-generation firefighter. This is in stark contrast to the white applicants who were part of multi-generational firefighting families. During the evaluation process minority candidates complained that they didn’t have access to the same study materials as white candidates because of their status as first-generation firefighters. They also challenged the relevancy of many of the questions on the test, arguing that they had no relationship to issues of leadership, experience, or accountability.
Despite this evidence, the majority declared the city of New Haven essentially pandered to locally politically influential African-American politicians in deciding to scrap the test. In siding with the white firefighters the Court borrowed from equal protection analysis and imposed the “substantial evidence” requirement onto disparate impact claims. In this case it means the city of New Haven would have to show that its actions in throwing out the first test were justified because there was “substantial evidence” that the test was flawed and that if they relied on the results New Haven would be unlawfully discriminating.
Predictably the Roberts Court does not suggest what kind of evidence would meet this “substantial evidence” standard, nor does the Court acknowledge that the outcome alone (as is the case in other areas of discrimination analysis) is evidence enough of a discriminatory disparate impact. In fact, the majority completely disregarded the evidence presented by the city in defense of its decision and instead focused solely on the city’s very legitimate concern that its decision was motivated by a desire to avoid litigation by the black firefighters. Justice Alito ascribes a malicious political bend here suggesting that the city didn’t even care if it got sued, that all it was trying to do was to politically appease certain constituents- namely African-Americans. But put aside Justice Alito’s allegations and in essence what we are left with is the Court’s natural selection of evidence to fit its own narrow, limited understanding of the nature and effect of racial discrimination as we know it today.
The majority also fails to address just how an employer is to prove it was going to unlawfully discriminate against a candidate in a disparate impact situation BEFORE actually discriminating against them. Justice O’Connor noted the peculiarity of this kind of requirement in previous Title VII cases, stating that the only real effect it has is to stymie efforts by employers to proactively address inherent and ingrained workplace discrimination.
The Court’s decision in essence turns a blind eye to the challenge of equalizing access to positions of authority that are often tied directly or indirectly to nepotism. So why the focus on the decision may be tied more to any implications it has on the nomination of Judge Sotomayor for the Supreme Court, its legacy may well be for its complete lack of understanding of the effects of systemic, ingrained denial of access to power for minorities and women, as that misunderstanding litters this decision. The city of New Haven presented “substantial evidence” that the test was flawed and that relying on it would have resulted in unlawful discrimination despite the fact that it didn’t need to meet that standard. The problem was that the majority cannot identify the nuanced evidence of discrimination that comes from the legacy of white preference and access to authority.
This decision changes really very little in terms of trying to erode systemic employment discrimination. The bar for proving those claims remains just as high as ever and minorities will continue to face a bench that simply does not accept the fact that the challenge of our time comes from addressing the legacy of minority exclusion from power made possible through overt, though now illegal, discrimination. One wonders if the city had decided to move forward and enforce the results of the test how the Court would have responded given the nature of the evidence illustrating ingrained systemic discrimination in the fire department. More likely the result would be the same since any change would require an admission by Justice Roberts and the others in the majority that nepotism can and does function as defacto racial discrimination.
photo courtesy of txd via Flickr.