Affirmative action cases are almost always controversial and certainly a hot topic for employment lawyers. The Supreme Court just heard arguments in Ricci v. DeStefano. In this case, the City of New Haven threw out the results of the fire department's promotional test because no blacks and only two Hispanics would have been eligible for advancement. White fire fighters filed the lawsuit when the City threw out the test. The white fire fighters claimed their constitutional rights were violated. Reverse discrimination? This is the case before the United States Supreme Court. The question is whether the white fire firefighters were the victims of discrimination as a result of the City's equal opportunity efforts. Title VII of the Civil Rights Act does not allow an employer to take race into account when making employment decisions. Many states have enacted similar employment laws. For example, New Jersey employment laws do not permit an employer to take race into account when making an employment decision. But what happens when a government employer, such as a city, decides to take race into account because not enough minorities scored high enough? These were the issues just argued by employment lawyers at the Supreme Court.
From the Court's questioning, it was clear that Chief Justice John Roberts and Justice Antonin Scalia believed City officials were primarily concerned with the fact that the test had not produced the outcomes they wanted. Roberts and Scalia grilled the City's lawyer, as well as the lawyer representing the federal government. The federal government has taken the position that the City was within its rights to throw out the test. At one point, Roberts asked Deputy Solicitor General Edwin Kneedler about what the government's position would be if the results of the test had been revered --- that is, if the black applicants had scored well and white applicants did not score high enough for advancement ---"can you assure me that the government's position would be the same?" Kneedler responded with a yes. Scalia commented, "I don't think you'd say that."
For now, stay tuned - we will have to wait and see what High Court does with this one.
