Yesterday Emily Bazelon, one of SLATE’s liberal legal writers, wrote that Ricci v. Stefano, the case of the New Haven firefighters who were denied promotions because no blacks passed the promotion exam (see here, citing a bunch of earlier posts), “is a hard case with bad facts—a case that could do serious damage to Title VII, one of Congress’ landmark civil rights laws.”
Really? If the Supreme Court were to decide that New Haven violated Title VII by refusing to promote firemen who would have been promoted if a) they were black or even if b) a few more blacks had passed the exam, how would that “do serious damage” to Title VII?
Perhaps it would help actually to look at Title VII (Public Law 88–352, as amended, volume 42 of the United States Code, beginning at section 2000e). Here are a few relevant excerpts:
(a) Employer practices
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
….
(j) Preferential treatment not to be granted on account of existing number or percentage imbalance
Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor- management committee subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.
….
(l) Prohibition of discriminatory use of test scores
It shall be an unlawful employment practice for a respondent, in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex, or national origin.
(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices
Except as otherwise provided in this subchapter, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. [Emphasis added]
There are no doubt many different ways the Supreme Court could rule in favor of the plaintiff New Haven firemen, but, hypothetically, let’s say that among the reasons given for concluding that the City of New Haven violated the rights of the white and Hispanic firemen who were not promoted were the following:
a) that the City’s refusal to promote them was discrimination based on race, since they would have been promoted if they were black or even if some blacks had passed the test;
b) that the City’s refusal to promote was based on an illegitimate concern “with an imbalance which may exist” among the promotees or with the “total number or percentage of persons of any race” who would have been promoted;
c) that the City impermissibly altered the results of the employment test by not promoting those who passed, as promised; and
d) that even if the City was concerned with factors other than the racial “imbalance” in the number of those who passed its exam, such as fear of a disparate impact lawsuit if it did not ignore the exam results, that nevertheless race was “a motivating factor.” [Emphasis added]
In other words, if the Supremes were to conclude that the City of New Haven violated the clear text of Title VII in some or all of the particular ways listed above, how would that “do serious damage to Title VII”?
Perhaps Emily Bazelon has read Title VII, and is even knowledgeable about it, but there’s scant of either in this article.
just skimmed the article. i don’t see where she says that a ruling against the plaintiffs would do serious damage to title 9. all she says is that the case could do serious damage.
Sen. Hubert Humphrey (D-MN) who was one of the primary authors of the Civil Rights Act of 1964, said while lobbying for CRA ’64 that if one white person is discriminated against and unfairly denied employment based on this bill, he’d eat the bill.
Well, Humphrey is long dead, but if he were still alive, Title VII would have been served as his lunch at least two decades ago!