The Comment M09 final

Michael Zamora

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• Publié par: Erda
• Nombre de lectures: 40
• Langue: English

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THE COMMENT
Thomas M. Cooley Law Review
Volume XII, Issue II ! 300 S. Capitol Ave. ! Lansing, MI 48933

THOMAS M. COOLEY LAW REVIEW
Michaelmas Term 2009

The Comment is a publication of the Thomas
M. Cooley Law Review.

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The Comment Volume XII, Issue II

Supreme Court Overturns Ricci, but employer can demonstrate a strong basis in
Leaves Many Questions Unanswered evidence that, had it not taken the action, it
Lauren Frederick would have been liable under the disparate-
6 impact statute.” First, the Court ruled that
The Supreme Court’s recently New Haven’s tests used for firefighter
1 7decided ruling in Ricci v. DeStefano left promotions were legally valid. Second, the
many questions unanswered and provided Court ruled that New Haven city officials
2no bright-line rules for employers. In Ricci had failed to show that there were other tests
3v. DeStefano, the city of New Haven, that could have had less of a negative impact
8Connecticut administered an exam in order on minorities taking the exam. Third, the
4to promote members of its fire department. Court noted that the city had not shown that
When New Haven officials reviewed exam it had a genuine fear of being sued by
results, “they found that the pass rate for minority firefighters if it gave most of the
9black candidates was approximately half the promotions to white candidates. Finally, the
pass rate of white candidates . . . [thus,] no Court stated that even if the city used the
black candidates could be awarded a test results to promote whites to all available
5promotion.” Because of this discrepancy, slots, “minority firefighters will have no
New Haven did not certify the exam. Ricci, legal complaint that they were victims of
a top scorer on the exam, and other discrimination because the city can claim
firefighters (seventeen whites and one that it had to make promotions to avoid
Hispanic) sued the city and its mayor, John violating Title VII’s protection for the
10DeStefano, claiming racial discrimination whites who scored best.”
under the Equal Protection Clause and Title Justice Kennedy wrote, “Fear of
VII. U.S. District Court Judge Janet Bond litigation alone cannot justify an employer’s
Arterton threw the firefighters’ case out, and reliance on race to the detriment of
the second circuit, including Supreme Court individuals who passed the examinations
11nominee Judge Sotomayor, affirmed the and qualified for promotions.” Kennedy
decision. The Supreme Court granted also stated that the city’s test correctly
certiorari and reversed. evaluated the candidates and the tests were
12In its 5-4 decision, Justice Kennedy equally applied to all races. “The
writing for the majority, the Court held “that problem,” Kennedy stated, “is that after the
race-based action like the City’s in this case tests were completed, the raw racial results
is impermissible under Title VII unless the

6 Ricci v. DeStefano, _ S. Ct. _, 2009 WL 1835138 at
1 Ricci v. DeStefano, _ S. Ct. _, 2009 WL 1835138 *4.
7(2009). Lyle Denniston, Analysis: Ricci, without the
2 See Steven Greenhouse, Supreme Court Ruling rhetoric, June 29, 2009, available at
Offers Little Guidance on Hiring, N.Y. TIMES, June http://www.scotusblog.com/wp/analysis-ricci-
30, 2009, at A13, available at without-the-rhetoric/.
8http://www.nytimes.com/2009/06/30/us/30impact.ht Id.
9ml?_r=1&hpw/. Id.
3 10 530 F.3d 88 (2008). Id.
4 11 See Ricci v. DeStefano, 554 F. Supp. 2d 142 Ricci v. DeStefano, _ S. Ct. _, 2009 WL 1835138
(2006); see generally Warren Richey, U.S. Supreme at *22.
12Court takes up ‘reverse discrimination’ case, January Robert Barnes, Justices Rule for White Firemen in
9, 2009, available at Bias Lawsuit, WASH. POST, June 30, 2009, available
http://www.csmonitor.com/2009/0109/p25s30- at http://www.washingtonpost.com/wp-
usju.html. dyn/content/article/2009/06/29/AR2009062901608.ht
5 Id. ml.
2 The Comment Volume XII, Issue II

21became the predominant rationale for the Constitution. The new standards the Court
13city’s refusal to certify the results.” has announced concerning Title VII are not
Legal experts and commentators very precise, so it extremely likely that it
have said that the Court, instead of setting will take future lawsuits to define what the
22forth bright-line rules, has assured much new requirements mean.
more litigation concerning employment
14discrimination. In turn, one commentator
has said, “[t]his is going to be good for Obama’s A.G. Could Hire Independent
15employment lawyers.” Civil rights groups Prosecutor to Investigate Bush-era
said the decision would create obstacles for Abuses
employers who are seeking to create a more Lauren Frederick
diverse workforce without violating the
16law. In addition, critics of newly After many claims that he would not
nominated Supreme Court Justice be investigating Bush-era abuses, Attorney
Sotomayor have used this decision as General Eric Holder is now seriously
evidence that she allowed her personal considering appointing an independent
17beliefs to influence her rulings. Sotomayor prosecutor to investigate the harsh, and
supporters, however, have said that possibly unlawful, interrogation techniques
23Sotomayor merely adhered to Court employed by the Bush administration.
18precedents. Investigation of a past administration’s
In summary, the Court stated that actions is extremely rare, probably even
24employers generally had to accept the results unprecedented. President Obama has
of a hiring or promotion exam unless the expressed his concern and dislike of
employer had sufficient evidence the exam investigating the Bush administration by
was defective and impermissibly favored a saying, “we should be looking forward and
19specific group. Consequently, “employers not backwards” when it comes to the prior
25will want to try to establish bulletproof administration’s abuses.
20selection criteria.” One of the most The attorney general is a partisan
significant questions that was not addressed appointee expected to overcome any sense
26by the Supreme Court was whether of partisanship. Very few, however,
government employers, even if they think actually succeed in finding a happy medium
that they have a “strong basis in evidence”
to justify making a race-based job selection,
will be able to avoid liability under the 21 Denniston, supra note 7. See also Walter Olson,
Sued If You Do, Sued If You Don’t, June 29, 2009,
available at
13 Ricci v. DeStefano, _ S. Ct. _, 2009 WL 1835138 http://www.forbes.com/2009/06/29/affirmative-
at *22. action-firefighters-opinions-contributors-walter-
14 Greenhouse, supra note 2, at A13. olson.html.
15 22 Id. (quoting Lars Etzkorn, a program director with Denniston, supra note 7.
23the National League of Cities). Nedra Pickler, Holder Torture Investigation Likely,
16 Barnes, supra note 12. HUFFINGTON POST, July 14, 2009,
17 Id. http://www.huffingtonpost.com/2009/07/11/holder-
18 Id. now-leaning-toward_n_230057.html.
19 24 Greenhouse, supra note 2. Daniel Klaidman, Independent’s Day, NEWSWEEK,
20 Id. (quoting Katharine Parker, a lawyer with July 20, 2009, available at
Proskauer Rose who is chairwoman of the Labor and http://www.newsweek.com/id/206300/page/3.
25Employment Committee of the New York City Bar Id.
26Association). Id.
3 The Comment Volume XII, Issue II

27between independence and loyalty. While were passed from Bush’s executive branch
keeping history in mind, Attorney General lawyers to the President himself allegedly
36Holder is trying to achieve the correct authorizing the use of torture. Holder went
28balance. Holder stated that, “[I] have the so far as to say that what he saw “turned his
37responsibility of enforcing the nation’s laws, stomach.”
and [I] have to be seen as neutral, detached, Holder will not pursue prosecution
29and nonpartisan in that effort.” Holder of those who acted within the government’s
38added, “the reality of being A.G. is that I’m legal guidance. Howev