Supreme Court decision in firefighter case unlikely to impact Sotomayor's confirmation

FOR IMMEDIATE RELEASE
June 29, 2009

The U.S. Supreme Court ruled 5-4 today (June 29) in favor of white firefighters who filed a reverse discrimination lawsuit against the city of New Haven, Conn. In Ricci v. DeStefano, the firefighters claimed the city improperly threw out results of promotional exams because minorities did not meet testing standards for promotion.

Professor Ken Dau-Schmidt, Willard and Margaret Carr Professor of Labor and Employment Law, is available to discuss the ruling.

Kenneth Dau-Schmidt

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"Ricci is a very significant decision," he said. "The case posed a conflict between Ricci's Title VII right to be free from disparate treatment based on his race and the black firefighters' Title VII rights to be free from the disparate impact of a questionable employment test. The Supreme Court tells us that, although disparate treatment is sometimes necessary to undo the impact of past discrimination, such disparate treatment can only be undertaken by the employer when it has 'a strong basis of evidence' that such remedial action is necessary. In the Ricci case, the Supreme Court said that the locality violated Title VII by disallowing the test, even though the disparate impact of the test was apparent, because it did not have a strong basis of evidence that the test was not adequately related to the job or that better tests were available. By deciding the case in this way, the Court is narrowing the Court's prior precedents on disparate impact and elevating the importance of disparate treatment, even against members of the majority."

Dau-Schmidt said he doubts the decision will keep Judge Sonia Sotomayor from being confirmed to the Supreme Court. Sotomayor was part of a federal appeals court panel that ruled against the white firefighters. "Although she and her fellow appellate court judges were overturned, and in fact did not acquit themselves very well in this case by not writing a substantive decision on what was clearly a very important case, the politics of her appointment are overwhelmingly in her favor," he said. "I think it would be very hard for the Senate not to confirm a Latina, whether wise or not, who had previously been appointed to the bench by both a Republican and a Democrat and twice confirmed by the Senate. The more interesting question is whether she will use the confirmation process to apologize for her comments that a wise Latina judge will make better decisions than a white man."

Dau-Schmidt is a nationally recognized teacher and scholar on the subjects of labor and employment law and the economic analysis of legal problems. He can be reached at (812) 855-0697 or by e-mail at kdauschm@indiana.edu.