Reinforcing Discrimination?

Frank Ricci, left, lead plaintiff in the the “New Haven 20” firefighter reverse discrimination case speaks to the media outside of Federal Court in New Haven, Conn. (AP Photo/Jessica Hill)

Yesterday’s 5-4 Supreme Court ruling in Ricci v. DeStefano, or the white firefighters’ discrimination case, gained significant media attention because the justices directly overturned a decision by a three-judge appeals court panel that included high court nominee Sonia Sotomayor. But those who look at this decision solely in that context are missing the bigger story: The Supreme Court is using the Civil Rights Act to reinforce the racial roles it was designed to eliminate.

What’s so disturbing about this ruling is that Title VII of the Civil Rights Act, the part of the law originally designed to prevent and punish discrimination against women and minorities, has been used to punish minorities themselves, ignoring the systemic and subtle discrimination that still exists today.

The Ricci case, many anti-discrimination lawyers will readily admit, is an odd case that is not necessarily representative of other discrimination cases. The lawsuit arose as a result of written and oral tests administered by New Haven, Conn., to determine promotion decisions for its firefighters. Relying solely on a test for promotion was a bad idea to begin with—“It’s like granting a driver’s license based solely on the written test, only with much higher stakes,” as Emily Bazelon described it in Slate—but the exam results skewed to favor that white (and some Hispanic) applicants over their African American counterparts. Suspecting something had gone awry with the test and desperate to avoid a lawsuit by black candidates, the city threw the test out. But the white petitioners that had studied long and hard for that test and felt they deserved the promotion and filed a lawsuit claiming they had been discriminated against under Title VII of the Civil Rights Act.

Title VII says its purpose is to “proscribe not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” The first half of that language, the “overt discrimination” part, is rarely used anymore. Employers no longer post jobs under a “whites only” column header or tell women they are too “emotional” to lead, mostly for fear they would lose a lawsuit with such an obvious violation. Today, the second form of discrimination, the kind that is “fair in form, but discriminatory in operation,” is the guide under which nearly all of discrimination cases are determined. These are cases in which a standard may seem neutral, but the results end up favoring one particular group, most often whites and men. This is called disparate impact.

What the white firefighters’ charges of overt discrimination ignored was the disparate impact discrimination minority firefighters faced in New Haven. “The written test had a very serious disparity,” explains Marcia McCormick, associate law professor at St. Louis University and contributor to Workplace Profs Blog. “What that means is that in relation to the numbers who applied, far more, proportionally speaking, white applicants scored higher than did African Americans or Latinos than what you’d expect by chance … [When] taking any test, race shouldn’t have an effect.” But in the New Haven case, it did. White firefighters were far outperforming minority candidates for the same job.

Justice Ruth Bader Ginsburg noted in her dissent that the very definition of disparate discrimination was represented in this case. She asserted that “at least two candidates … noted unequal access to study materials.” Some obtained books far before the syllabus had been issued and had money to invest in supplemental aids. “More subtle—and sometimes unconscious—forms of discrimination replaced once undisguised restrictions,” she wrote. “These disparities, it was suggested, fell at least in part along racial lines.”

Concerns about missing subtler forms of discrimination are not limited to Supreme Court justices; discrimination cases more generally are becoming harder to win. A recent study [PDF] in the Harvard Law & Policy Review concluded that “federal courts disfavor employment discrimination plaintiffs.” So employees experiencing discrimination are intimidated against bringing their cases to court. “The fear of judicial bias at both the lower and the appellate court levels may be discouraging potential employment discrimination plaintiffs from seeking relief in the federal courts,” according to the study.

As legal recourse for discrimination cases become less viable, the practice of Title VII in court is marginalizing minorities, rather then helping them. “Disparate impact cases are getting to be very difficult anyway; it’s become increasingly less legitimate in the eyes of most courts,” McCormick says.

Ironically, recent racial equality successes, such as the election of Barack Obama or the nomination of Sotomayor may be hurting the future recognition of subtle discrimination. “I think it’s complicated right now,” says Kevin Shawn Hsu, associate counsel and Robert L. Carter Fellow at The Opportunity Agenda, a communications organization that works to expand equal opportunity. “We have a lot of progress but it really is that the progress we’ve made is because of equal opportunity provisions we have.” Sotomayor herself attended Princeton and Yale, two traditionally white- and male-only institutions that integrated after the Civil Rights Act passed.

While individual success may deceive some into thinking that considerations around race are no longer necessary, it remains true that whites are generally far better off than people of color in this country. The unemployment rate has remained higher for non-whites than it has for whites. While whites on average are experiencing an unemployment rate of about 8.6 percent, the unemployment rate is much higher for Latinos at 12.7 percent, and highest for blacks at 14.7 percent, according to recent Bureau of Labor Statistics numbers.

Americans, in an effort to seem more open and accepting, have ditched the entire discussion around discrimination. Without discussions about whether institutional, embedded, and subtle racism and sexism is something we are responsible for, we may end up reinforcing age-old classes largely determined by sex and race. “We haven’t talked about discrimination in a long time,” McCormick says.

For Civil Rights advocates, the DeStefanocase sets a disturbing precedent on how Title VII might be applied in the future.“This Supreme Court has a seemed to really twist the law to get the results they want, really creating new standards that are eviscerating decades of settled law,” says Lisa Bornstein, senior council at the Leadership Council on Civil Rights. It’s true that Ricci was a strange case, with facts that made it much harder to apply Title VII. But if we stop using the Civil Rights Act to protect minorities, we’re ending up with precisely the situation that Title VII was designed to avoid: discrimination in practice, if not in intent.

Kay Steiger is the associate editor of Campus Progress.

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