April 02, 2019

Labor and Employment Law

Michael Subit


Strictly speaking, Ricci v. DeStefano, 129 S. Ct. 2658 (2009), is a victory for employees. The plaintiffs won their case. The Supreme Court raised the defendant employer’s burden of proof, which should allow more lawsuits to succeed in the future. The majority took an expansive view of disparate treatment. Ordinarily, the question in a racial disparate-treatment case is whether the employer would have treated the plaintiff in the same manner if he or she had been of a different race. If the answer is “no,” disparate treatment has occurred. If the answer is “yes,” there has been no violation. In Ricci, the city of New Haven would have treated each of the individual plaintiffs in the same way, i.e., not certified the exam results, even if he had been of a different race than he actually was. The district court rejected the plaintiffs’ Fourteenth Amendment Equal Protection and 42 U.S.C. § 1985 claims because the test results were discarded for all applicants, regardless of their race. The Ricci majority, however, “presumed” a disparate-treatment violation from the mere consideration of an employee’s race in an employer’s decision-making process. Why shouldn’t plaintiffs’ employment lawyers be pleased by that result?

The reason is that Ricci represents a significant retreat in the quest for real equal employment opportunity. The case was one of three 5-4 labor and employment decisions in the 2008–2009 term. In all three cases, the Court split along the same ideological lines. While the justices nominally ruled for the employees in Ricci, the case cannot be understood separately from the conservative majority’s larger agenda. Indeed, one justice has a vision of the Constitution that prevents Congress from redressing disparate-impact discrimination altogether. Ricci will leave most advocates for employment plaintiffs with little to cheer about in the long run.

For the first 78 years of its existence, the U.S. Constitution guaranteed racial inequality and African Americans’ subordination. Blacks were legally three-fifths of a person. The Thirteenth Amendment’s abolition of slavery and the Fourteenth Amendment’s guarantee of equal protection of the laws formally abrogated the enshrinement of African American inferiority as a constitutional value. Despite these profound legal changes, the promise of equal opportunity remained empty until the mid–twentieth century.

Title VII of the Civil Rights Act of 1964 guaranteed equal employment opportunity in the private sector, nationwide. The primary intent was to address racial discrimination.

For many years, the law was well established that voluntary race-conscious remedies were a permissible method for both the private and public sector to redress the continuing unequal distribution of educational and employment opportunity in this country. Relying on existing Second Circuit precedent, the Ricci district judge held that Title VII permitted the voluntary use of race-conscious remedies where there was a “statistical demonstration of disproportionate racial impact.” A panel of the U.S. Court of Appeals for the Second Circuit, which included now-Justice Sotomayor, affirmed. Recent Supreme Court precedent, of which Ricci is of the latest vintage, suggests that the conservative majority is on the verge of holding that the Constitution prohibits such measures.

The ideological division between the justices in Ricci is a disagreement over a core constitutional principle. The dissenting justices believed there is a fundamental and dispositive difference between using a race-conscious remedy to equalize the opportunities of historically disadvantaged groups and using a race-conscious remedy to maintain the hegemony of a traditionally privileged group. The dissenters believed Congress never intended to prohibit an employer from voluntarily taking race-conscious actions to ensure that “qualified candidates of all races have a fair opportunity to compete.” For them, the crucial question in determining whether to allow a race-conscious remedy is whether the purpose is racial inclusion or racial exclusion. The five justices in the majority, however, believe there is little, if any, difference between these two situations.

Ricci settles, for now, that Title VII requires an employer to have a “strong basis in evidence” of a disparate-impact violation before it can permissibly take a race-conscious remedy to redress it. Ironically, the majority refused to decide whether the new statutory standard it had derived from the Court’s Equal Protection Clause jurisprudence would actually pass muster under the Equal Protection Clause.

Justice Alito’s Ricci concurrence, joined by Justice Scalia and Justice Thomas, is a powerful confirmation of just how far removed we are from either a color-blind Constitution or a color-blind Court. Justice Alito asserted “a reasonable jury could easily find that the City’s real reason for scrapping the test results was . . . a simple desire to please a politically important racial constituency.” Justice Ginsburg properly took Justice Alito to task for conflating political favoritism with racial discrimination. She could not see how the mayor’s desire to placate some African American constituents amounted to discrimination on the basis of race. She believed the salient question was whether the means officials used to satisfy these minority voters were racially discriminatory. Because the dissenters believed officials had refused to certify the firefighter tests based on an actual concern of liability about disparate-impact discrimination rather than any intention to discriminate against white firefighters, they believed it made no difference that the city also wanted to curry favor within the African American community.

It is interesting to note that the plaintiffs’ case against the city in the district court included a claim of unlawful political favoritism under the First Amendment. Justice Alito accepted the plaintiffs’ reformulation of their First Amendment arguments into a claim of racial favoritism. By doing so, he defined the community leaders who opposed certification of the exam results by their race. He didn’t view them as the leaders of the “anti-certification” constituency or the “pro-diversity” constituency. For him and for Justice Scalia and Justice Thomas, the most salient characteristic of this constituency was its race. The three justices viewed them not as individuals with a shared political point of view but as members of a racial group. Justice Alito’s concurrence violates the fundamental individual treatment precept of the color-blind Constitution. It shows three justices who espouse it do not practice what they preach. If Supreme Court justices who endorse the color-blind Constitution cannot get beyond race-based categorical thinking, it is unrealistic to expect that other people can.

The Fourteenth Amendment’s command of “equal protection of the laws” was not an invitation to pretend the newly freed slaves stood on exactly the same legal, economic, and social footing as their former masters. In subsequent years, the Court gave it a universal interpretation, but one with nuances. The Court created different tests for different classifications under the Equal Protection Clause. Until now, the prevailing interpretation has considered how different types of discrimination have played out in history and continue to do so. But the doctrine of the color-blind Constitution pays no such heed to these facts. Contrary to the thesis of the color-blind Constitution, the tragic flaw in American constitutional history is not consideration of “race” but “racism.”

Although Ricci pays lip service to a formalistic theory of racial equality and takes an expansive view of disparate treatment on account of race, its practical result will be greater racial inequality of employment opportunity, not less. For that reason, Ricci is the epitome of a pyrrhic victory for employees.



- This article is an abridged and edited version of one that originally appeared on page 199 of The Labor Lawyer, Winter 2010 (25:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221 or go to www.ababooks.org.

- Website: www.abanet.org/labor.

- Periodicals: ABA Journal of Labor and Employment Law (formerly The Labor Lawyer), published three times per year; Labor and Employment Law, newsletter, published quarterly; substantive committee newsletters, published biannually.

- Books and Other Recent Publications: The Developing Labor Law, 5th ed., with 2010 Cum. Supp.; Employment Discrimination Law, 4th ed., with 2010 Cum. Supp.; The Fair Labor Standards Act, 2d ed.; The Family and Medical Leave Act, with 2009 Cum. Supp.; Wage and Hour Laws, with 2010 Cum. Supp.; Age Discrimination in Employment Law, with 2010 Cum. Supp.; Covenants Not to Compete, 7th ed.; Employee Benefits Law, 2d ed., with 2010 Cum. Supp.; Employee Duty of Loyalty, 3d ed., with 2010 Cum. Supp.; Elkouri & Elkouri: How Arbitration Works, 6th ed., with 2010 Cum. Supp.; Trade Secrets, 3d ed., with 2010 Cum. Supp.; International Labor and Employment Laws, 3d ed., with 2010 Cum. Supp.; Restrictive Covenants and Trade Secrets in Employment Law: An International Survey; The Uniformed Services Employment and Reemployment Rights Act (USERRA).


Premium Content For:
  • Solo, Small Firm and General Practice Division
Join - Now