by Fatima Goss Graves, Senior Counsel,
National Womens Law Center
This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.
On June 29, the Supreme Court issued a decision in Ricci v. DeStefano. This case would be an important one in any year – in a decision issued on the last day of the term, the Supreme Court established a new rule for an employer that seeks to set aside what it believes to be a discriminatory test or practice. That decision, and its ultimate impact on employment opportunities for women and people of color, is worthy of much discussion. As we’ve explained here before, the Title VII standard at issue in Ricci – in legal terms called “disparate impact” – has been critically important in helping to open doors for women into nontraditional (and well-paid) occupations, such as firefighting, police work and construction, by allowing challenges to a variety of recruitment, hiring, and promotion practices that adversely affect women.
But the reason that Ricci has been all over the press and will certainly be a central focus of the hearing is because Judge Sotomayor was a member of a three-judge panel that wrote the summary order reviewed by the Supreme Court.The Ricci case was already mentioned this morning in Senator Sessions’ opening statement. I expect that, like in the press, the Ricci case will continue to be distorted throughout the hearings. It will be called an affirmative action case (it is not); arguments will be made that New Haven wanted to hire unqualified individuals for important public safety positions (it did not – all the test takers in this case were already firefighters and the point was to find a fair test that accurately reflected merit); and some might even argue that after Ricci employers can no longer take steps to address practices that adversely impact their employees based on their race (or their sex, or their religion – you get my point). This last point is particularly important – even after the Supreme Court’s troubling decision in Ricci, employers must continue to take steps to address both intentional and unintentional, but still, discriminatory practices. The Court’s decision made the bar a little higher for employers to address discriminatory tests, but didn’t remove their obligation to do just that.
As I’ve said, this is a case that would stand out in any term. And it’s worthy of a thoughtful discussion. Let’s hope that happens.