Monday, June 29, 2009

Ricci Ruling

In a 5-4 decision the Supreme Court decided for the plaintiffs with the conservative wing all voting for the plaintiffs and the 4 more liberal justices all dissenting.

I am far from being a legal scholar but I will say that this doesn't seem like it will be the "ammunition" that conservatives were hoping for to use against Supreme Court nominee Judge Sonia Sotomayor.

Also I admit my unfamiliarity with these things but I was struck that in addition to Justice Antonin Scalia writing the majority opinion, you had several "concurences" written by other conservative justices as if they all needed to help out and speak out to justify the decision. Now again maybe that's normal, I don't know.

What was most odd to me was that Justice Alito's concurrence seemed like nothing more than an attack on the dissent rather than illuminating anything having to do with the merits of the case. And it wasn't very compelling reading or reasoning either, at least for this layman.

The other thing that struck me was how strong Justice Ruth Bader Ginsberg's dissent was. She raised issues about the case that had not been discussed at all in our drive by media. I guess the most compelling argument was this one.

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate treatment litigation in which its chances for success—even for surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulate an employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less discriminatory alternative.” Ante, at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself. Cf. ante, at 24. There is indeed a sharp conflict here, but it is not the false one the Court describes between Title VII’s core provisions. It is, instead, the discordance of the Court’s opinion with the voluntary compliance ideal. Cf. Wygant, 476 U. S., at 290 (O’Connor, J., concurring in part and concurring in judgment) (“The imposition of a requirement that public employers make findings that they have engaged in illegal discrimination before they [act] would severely undermine public employers’ incentive to meet voluntarily their civil rights obligations.”).

(I apologize for formatting but pdf and I are not friends)

I have to say that this argument is a strong one to suggest that this was not the correct ruling on this issue and implies that as Justice Ginsberg stated it probably should have instead been remanded to a lower court for further clarification. Truly any business or municipality now finds itself between the proverbial rock and a hard place. If they use a hiring or promotion practice that convincingly statistically shows a racial bias they question is do they be proactive in order to try to be Title IX compliant and risk another expensive Ricci type case? Or do they keep the status quo and not only potentially allow discrimination to go on but also open themselves up to a similarly expensive lawsuit from minority employees or prospective employees who feel they have been discriminated against?

It seems this ruling offers more questions than answers.

But all in all its good news for John McCain!

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