Somin Comments on Firefighters' Discrimination Case Before Supreme Court

As the U.S. Supreme Court prepares to hear a reverse discrimination case brought by Connecticut firefighters, Professor Ilya Somin warns that the standards on which the Court bases its decision could have significant impact on both public and private employers.

Frank Ricci et al. v. John DeStefano et al. centers on whether the actions of the New Haven (Conn.) Civil Service Board in refusing to certify the results of two fire department promotion exams constitutes reverse discrimination against a group of non-minority firefighters. The board refused to certify the results of the exams out of concern that they might have had a disparate effect on the promotions of minority firefighters, possibly resulting to a suit by that group. Instead, 17 white candidates and one Hispanic candidate filed suit, alleging violation of Title VII of the Civil Rights Act of 1964 and of the Constitution's Equal Protection Cause. The courts have decided and upheld for the defendants.

Somin expects the appellate court decision to be reversed, based on the makeup of the current Supreme Court. "However, a very important question going forward is what sorts of standards the court sets up to justify its decision," he said.

The Supreme Court could strike down the appellate court's decision "but still have fairly permissive standards under which cities and private employers engage in similar policies," Somin says, but it could also offer a "broader rationale which will make it very difficult, particularly for public employers, to do similar things in the future."

High court to hear case on promotion test bias, Business Insurance, January 19, 2009. By Judy Greenwald.

"Gerald Maatman, an attorney with law firm Seyfarth Shaw L.L.P. in Chicago, said, 'A decision in essence allowing a cause of action by the majority for reverse discrimination probably would have a chilling effect on what public employers would do in this area.'

"But, 'a decision upholding the district court would give more credence or maneuverability to employers to examine these issues without running afoul with' or interfering with the rights of majority employees, said Mr. Maatman.

"The decision could affect private employers as well as public entities, observers say. Marcia L. McCormick, an assistant professor at Cumberland Law School at Samford University in Birmingham, Ala., said depending on the decision, 'basically any employer who uses any kind of a neutral test...for hiring and promotion decisions may have to scrutinize them more carefully—or may not have to worry quite as much about the use of these tests.'

"Mr. Schwartz said a broad decision could be significant for private corporations with diversity programs 'which are specifically geared toward minority applicants.'

But Mr. Maatman said court's ruling is more likely to be based on the Equal Protection Clause, which says the government may not 'deny to any person…the equal protection of the laws.' The clause applies to public employers, but not private employers. Title VII applies to both public and private employers.

"'The Supreme Court tends to decide cases on the narrowest grounds possible, so I don't see the court making a decision' based on both issues, said Mr. Maatman."

Read the article