Irony: SCOTUS' Ricci Decision Hurts Businesses

By Big Tent Democrat, Section Supreme Court
Posted on Mon Jun 29, 2009 at 02:37:57 PM EST
Tags: (all tags)

Share This: Digg!

The Volokh Conspiracy's Ilya Somin makes a good point about today's Ricci decision:

The bottom line is that the business interests were among the big losers [in Ricci.] The Court's ruling makes it difficult for employers to use race-conscious measures to avoid disparate impact liability under Title VII of the Civil Rights Act. . . . Although Ricci addressed promotion decisions by a government employer, the same Title VII standards apply to private employers too.

Below, I post about Arkansas AG Dustin McDaniel making the point that Ricci is damaging to government employers. Somin points out that it is also damaging to private employers. So on top of all the other serious flaws in the decision, add the fact that it hurts businesses to the list.

Speaking for me only

< Monday Afternoon Open Thread | Ricci And What The Obama Administration Can Do >

Legal

Nothing on this site should be construed as legal advice. TalkLeft does not give legal advice.

TalkLeft is not responsible for and often disagrees with material posted in the comments section. Read at your own risk.

Irony: SCOTUS' Ricci Decision Hurts Businesses | 32 comments (32 topical)

Readers Must Login or Create an Account to Comment

Good (5.00 / 2) (#1)
by MO Blue on Mon Jun 29, 2009 at 02:51:08 PM EST

If it hurts business, particurly large corporations, Congress will rush to fix it.

Exactly. If B of A has a problem with it (none / 0) (#2)
by ruffian on Mon Jun 29, 2009 at 03:12:42 PM EST

me may be in luck.


Um...WE may be in luck (none / 0) (#3)
by ruffian on Mon Jun 29, 2009 at 03:13:45 PM EST

not just me, the bad typist.


It really was a better (5.00 / 2) (#8)
by me only on Mon Jun 29, 2009 at 03:26:25 PM EST

comment without the clarification


: Yeah, I kind of liked it (5.00 / 2) (#10)
by ruffian on Mon Jun 29, 2009 at 03:28:04 PM EST

But my 2nd grade grammar-nun's voice in my ear would not let me leave it alone.

Bad (none / 0) (#4)
by andgarden on Mon Jun 29, 2009 at 03:15:13 PM EST

Carry the problem forward: this decision hurts minorities.


I'm aware that this decision hurts (5.00 / 2) (#6)
by MO Blue on Mon Jun 29, 2009 at 03:23:28 PM EST

minorities. That fact by itself may not prompt Congress to act to correct this problem legislatively.

Complaints from large corporations OTOH that this has negative business ramifications would probably get the necessary legislation passed forthwith.


Of course (5.00 / 1) (#7)
by ruffian on Mon Jun 29, 2009 at 03:24:39 PM EST

But if the only recourse is Congressional action, it sure is not going to get fixed if minorities are the only ones hurt.


Maybe (5.00 / 1) (#9)
by Big Tent Democrat on Mon Jun 29, 2009 at 03:27:16 PM EST

It's hard to say really.

Consider this - businesses best legal strategy will be to do what Scalia does not want - just hire certain percentages from each group - no objective testing - just "interviews."

Who can sue then? well no one really.


This is one of the reasons why (5.00 / 1) (#14)
by Dan the Man on Mon Jun 29, 2009 at 03:46:48 PM EST

the Supreme Court decision is very strange. Because the Court has not overruled Johnson v. Transportation Agency which said Title VII doesn't prohibit affirmative action by employers. So if the City had just implemented an affirmative action plan instead of changing the test, the plan would've been legal.


I think if you agree with the reasoning of the (5.00 / 1) (#16)
by andgarden on Mon Jun 29, 2009 at 03:53:27 PM EST

majority, you probably have to believe that affirmative action is illegal.

If that's where we're going, I want off this ship.


Indeed (none / 0) (#15)
by Big Tent Democrat on Mon Jun 29, 2009 at 03:48:27 PM EST

Ginsburg makes that point.


Was the affirmative action plan already in place (none / 0) (#23)
by jerry on Mon Jun 29, 2009 at 05:53:30 PM EST

Or was it only put in place after the fact, just as this test was thrown out after the fact?

Isn't this case about why it's not a good idea to change your written procedures after the fact unless you have good well documented reasons?

Couldn't New Haven, upon seeing this test, validating it, and finding it wanting, then have tossed it? Or validating it, finding it ugly, gone ahead with the current hiring phase, and then revisited their hiring procedures? If New Haven was opposed to the 60/30 split in written/oral testing, did they express that during union negotiations?

BTD, you often represent corporations, if one of your corporations applied for a contract, complied with the rules of the competition, and then had a government change the rules of the competition after the fact, wouldn't you differ between that, and their changing the rules for their next contractual competition?


What I would do as an advocate (none / 0) (#24)
by Big Tent Democrat on Mon Jun 29, 2009 at 06:50:42 PM EST

for my client has nothing to do with what I might do as a policymaker or what the proper role of the Court is.


: That's fine. (none / 0) (#27)
by jerry on Mon Jun 29, 2009 at 07:40:15 PM EST

And thank you for the polite concession.

that's what you want... (2.00 / 0) (#28)
by diogenes on Mon Jun 29, 2009 at 11:14:15 PM EST

Since all "objective" tests are "biased", you want business to hire by quota or face extortion threats of lawsuits and having their names blackballed by Jesse Jackson and his ilk.


What's funny (none / 0) (#11)
by andgarden on Mon Jun 29, 2009 at 03:30:28 PM EST

is that some conservatives insist that what they're doing now.


It's really not that hard (none / 0) (#29)
by NYShooter on Tue Jun 30, 2009 at 08:21:49 AM EST

to compose a bias-neutral test,

unless, of course, that's not what you're trying to do. ("You,"meaning generic "you," not You :)


Harder than you think (none / 0) (#30)
by diogenes on Tue Jun 30, 2009 at 04:49:02 PM EST

In New Haven they hired all kinds of consultants but failed to get an "outcome-equity" result. You don't think that the SAT people would love to find a test that Asian kids didn't whip whites and blacks on?


: Those Dam&%$ Asians! (none / 0) (#32)
by NYShooter on Tue Jun 30, 2009 at 08:23:57 PM EST

It is an embarrassment.
I forgot the name of the exams, but the contest is one of the largest international test programs going. The Americans score consistently in the lowest quadrant while the Asians, mercifully don't compete any more. Their mentors, ever considerate and polite, feared that the prior thrashings were not simply embarrassing, but totally humiliating.
I don't get it; it's like health care. We spend twice as much, and get half as much.

Isn't the best strategy (none / 0) (#12)
by me only on Mon Jun 29, 2009 at 03:43:49 PM EST

to get another case in front of the Supreme Court showing how all this tangle makes it impossible to actually hire/promote people? That gives the Supreme Court a "mandate" for ruling Title VII unconstitutional. They have "cover" that the whole process was too litigious.

I think the Supreme Court is basically (Concerned Parents, Holder, Ricci, etc) working its way to the position, enough is enough. The country was overtly racist in the past. The ensuing 40+ years of AA, busing, etc., are enough. Time to move on.


Not following (none / 0) (#13)
by Big Tent Democrat on Mon Jun 29, 2009 at 03:46:25 PM EST

Unconstitutional because it makes life difficult for business?

That's a new one on me. Wouldn't put it past them though.


Not because it makes life difficult for business (none / 0) (#17)
by me only on Mon Jun 29, 2009 at 04:02:14 PM EST

If you read Scalia's concurring opinion (esp starting with "As the facts of these cases illustrate, Title VII's disparate-impact provisions place a racial thumb on the scales, oftenrequiring employers to evaluate the racial outcomes oftheir policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is, as the Court explains, discriminatory...", I think he's ready to bomb Title VII.

If the Ricci decision results in several lawsuits that cause the various Appeals Courts to struggle to balance "disparate impact" with Ricci, then SCOTUS will have to intervene, again. In that case the argument is "well, we tried to make Title VII work, but look, it is causing all kinds of problems. The 9th and 5th court can't agree. Let's just declare it all bunk and start over."

I think the SC5 is signaling to the Legislative Branch that if you want to keep AA you best figure out another way.

For many (probably most) of us who have grown up without first hand knowledge of the 60's this whole disparate impact stuff doesn't sit well.


Nah (none / 0) (#18)
by Big Tent Democrat on Mon Jun 29, 2009 at 04:05:57 PM EST

Scalia would rule "disparate impact" unconstitutional today. I do not take your point. You write:

""well, we tried to make Title VII work, but look, it is causing all kinds of problems. The 9th and 5th court can't agree. Let's just declare it all bunk and start over."

the Court can not do that. There has to be some constitutional argument - ergo - violates EPC - for the Court to take that step.

It's interesting though, JBalkin has an interesting post on this "death by a thousand cuts" approach the Gang of 5 is taking.


: I can't decide if I agree with him though (5.00 / 1) (#21)
by Maryb2004 on Mon Jun 29, 2009 at 04:28:13 PM EST

On the one hand it is tempting to think they are doing it because they are on the defensive and so they don't dare just declare it unconstitutional and risk an entire backlash against their ideology. On the other hand this seems to me just to be Roberts' style. Scalia would always rather just slay it, but Roberts prefers a long slow semi-secret death. In the end it's still dead and he somehow maintains his image that he's not the angel of death. He likes his image.
That's why I like these posts that "adjust" his image.

: Re Balkin (none / 0) (#19)
by andgarden on Mon Jun 29, 2009 at 04:16:09 PM EST

I think they've chosen this approach for two reasons. One he names: Kennedy is fainthearted about. . .everything. And two, because they're trying to boil the frog slowly.
Be too obvious, and Congressional leadership might start thinking like me (e.g. create more openings on the Court0.

: I wasn't giving you the legal (none / 0) (#20)
by me only on Mon Jun 29, 2009 at 04:17:28 PM EST

reasoning. Obviously we agree that Scalia is ready to declare "disparate impact" uncons. today. When Ricci causes problems in the various Appelate Courts, the SC is going to have to clarify. I think at that point Kennedy will have convinced himself that Title VII is unconstitutional based on the mess created by the recent "race rulings."
Put bluntly, I think the 4 are letting Kennedy do things incrementally in order for Kennedy to realize the mess all of this has created. At that point he will "roll over" and agree with them that Title VII is unconstitutional (I don't think he is there, yet), but is getting closer and closer.
In each of the cases it appears that the 4 are taking turns pushing for more (Scalia this time, Thomas in Holder, Roberts in Concerned Parents, IIRC). Do you think that this group of 4 really, truly believes that "disparate impact" is constitutional? Do you think there is a better way for them to convince Kennedy?

: title 7 is rubbish (none / 0) (#31)
by diogenes on Tue Jun 30, 2009 at 04:50:50 PM EST

Since title 7 is so dicey, why doesn't the Democratic Congress and president pass a new, more explicit law which is transparently clear?

Post-facto decisions are harder, not others (none / 0) (#22)
by jerry on Mon Jun 29, 2009 at 05:27:37 PM EST

What Kennedy's opinion says is "race-based action like the City's in this case ... unless the city can demonstrate a strong basis in evidence.... The City's action in discarding the tests was a violation."

If I understand this, then companies that take actions ahead of time like:
a) coming up with a new or changed set of hiring and interviewing procedures
b) measure tests, come up with new tests,
c) determine various goals regarding tests, interviews, hiring

will not have any impact from Ricci.

Who will have impact from Ricci? Companies and government agencies that post-facto change their own rules and change those rules based on little actual evidence.

Who else will not be impacted from Ricci? A company/government org that gives a test, WAITS for the test technical verification report that New Haven was contracted to ask for and should have waited for prior to throwing out the resultsl, and so can justify through use of actual evidence why they are changing the rules AFTER the test was given.

Who will be impacted? Companies and gov agencies that change the rules AFTER the test was given based on little evidence.

Is there some reason we should favor making it easier for companies and gov agencies to change their own rules and contracts whenever they wish to based on little evidence?

I think that if this the opinion is meant to deal with changing the rules post facto "like the City" did, than it will actually make it negligibly easier for businesses by making it obvious to their lawyers that changing the rules after the fact is not kosher.


All pretty words (5.00 / 1) (#25)
by Big Tent Democrat on Mon Jun 29, 2009 at 06:52:28 PM EST

Go tell the Congress to pass a law that establishes that and I might even agree with you.

But that is NOT the law as enacted by the Congress.

The Gang of 5 overturned an Act of Congress by rewriting it. It was a brazen act of judicial activism.


: I'm reading the opinion (none / 0) (#26)
by jerry on Mon Jun 29, 2009 at 07:39:51 PM EST

I ain't a lawyer, and I am just reading what Kennedy wrote and likely missing much. But that's what it seems that he wrote, and it seems odd to me that few people want to address that what the city did, they did in the face of having a plan, they did post facto, and they did without evidence.
Should you actually wish to address these issues, you might actually be being helpful and differentiating yourself from so many bloviating lawyers.
And I am distinctly not saying that the court wasn't activist, so please don't fling that poo my way.

And (none / 0) (#5)
by jbindc on Mon Jun 29, 2009 at 03:17:13 PM EST

Gives the right a chance to say, "See, these Justices aren't in the pocket of big business, so therefore, they can't be activist!"