I think this is the best piece I've read concerning Supreme Court nominee Sonia Sotomayor and the New Haven firefighters ruling. I still think it misses an important line threading, but it's a very good piece.
Under federal anti-discrimination law, employers (here, the city of New Haven) can be found liable for discrimination even in the absence of evidence that they intended to discriminate. If an employment practice (here, a test) appears neutral but has a "disparate impact" on minorities -- if it is "fair in form, but discriminatory in operation," in the words of a 1971 Supreme Court ruling -- the employer must justify the need for the practice. (Chief Justice Warren Burger wrote for a unanimous court.) Even then, the employer could be subject to liability if there is a less problematic alternative.
It seems odd to penalize employers without proof of discriminatory intent, but the theory behind disparate impact is that it serves to root out hidden or inadvertent bias. In any event, you can disagree with this approach -- but it's the law, and Congress has since acted to codify and strengthen disparate-impact analysis.
Federal guidelines warn employers that if they use a test that
produces a serious adverse impact on minorities, their use of the
results in hiring and promotion will be considered discriminatory
unless they recheck the test's validity. In addition, employers are
encouraged to comply voluntarily with anti-discrimination law rather
than risk being sued.
Fast-forward to the New Haven case. Black firefighters' pass rate for
the exam was half that of whites -- a severe disparate impact. The city
refused to grant promotions based on the test because, it said, it
feared a disparate-impact lawsuit: No blacks scored high enough to be
eligible for promotions. Instead, it was sued by disappointed white
firefighters who argue the city violated federal anti-discrimination
law and the constitutional guarantee of equal protection by taking race
into account in discarding the test results.
The paradox at the heart of Ricci v. DeStefano is that federal anti-discrimination law requires employers to examine the racial implications of their hiring and promotion procedures. Yet the law and the Constitution could also expose them to a claim of intentional discrimination if they view results through a racial lens and take action accordingly.
I am a supporter of affirmative action, but I think the New Haven case crossed the line.
However, I think the case is not about what was "fair", as in was it "fair" to the white fire fighters to throw out the test and the results, but was the city legally correct to take that line of action once the results of the test was known.