If Frank Ricci Loses, Blame Scalia

[usregimechange]

Conservative judges are the ones who have made discrimination suits hard to win.

Many conservatives have taken up the cause of Frank Ricci, a New Haven, Conn., firefighter who sued the city, claiming that officials discriminated against him when they rejected the results of a promotion exam, on which he did well, because all but one of the top scoring candidates were white. Ricci's claim is now before the Supreme Court. I've written about it once to explain why Ricci's argument is a threat to an important part of modern civil rights law, and I'm writing again now because a lot of people have suggested that Ricci has been treated unusually and unfairly in the courts. In fact, he's been treated just like any other plaintiff suing for employment discrimination. The anger and frustration of the top-scoring firefighters who expected promotions is understandable. But the outrage on the right is also ironic, because the reason that people who sue for employment discrimination—like Frank Ricci—rarely win their cases is that conservative judges have spent decades making sure they usually lose.

A reverse-discrimination lawsuit like Ricci's is, legally speaking, no different from a conventional discrimination lawsuit. The plaintiff bears the burden of proof on every factual issue. This was firmly established by Justice Antonin Scalia's 1993 majority opinion in a case called St. Mary's Honor Center v. Hicks, in which a black correctional officer, Melvin Hicks, sued for race discrimination after he was demoted and later fired from his job at a halfway house. The plaintiff must first establish some basic evidence that makes it plausible that he was a victim of discrimination—he was fired or turned down for promotion, for example, for reasons that weren't obviously due to his own lack of performance or across-the-board staff reductions. Once a plaintiff makes this showing (as Ricci did), then the typical case proceeds by a process of elimination. If the plaintiff can prove that there was no good reason for his firing or nonpromotion, the law will conclude that the decision must have been discriminatory.

But, as Justice Scalia made clear in Hicks, the employer doesn't have to prove that there was a good reason for its decision; it needs only to claim that there was one. New Haven claimed that it rejected the results of the promotion exam because to eliminate all black and all but one Hispanic firefighter from a chance at promotion, based on their scores, would have violated civil rights law, subjecting the city to a lawsuit by disappointed minority firefighters. (The city's argument is that the exam violated the part of the law that prohibits disparate impact discrimination, which in this context would prohibit the use of a test that screens out black firefighters and isn't more closely job-related than less discriminatory alternatives.) As the district court in Ricci pointed out, it's well-established that the desire to avoid such a disparate impact counts as a nondiscriminatory reason for an employer.

http://www.slate.com/id/2220600/

[tularetom]

1. I feel bad for Mr Ricci

but it appears the court's earlier ruling may come back to bite him in the ass.

Guess Scalia outsmarted himself this time.

[uponit7771]

2. "conservative judges have spent decades making sure they usually lose" AMEN! I've been in proceedin

...proceedings were the guidelines to keep a discrimination case in court are higher than a murder case. It'd be easier to indict someone for murder and get them put to death than to prove a supervisor who called someone the N word was most likely giving their employee(s) bad marks because they were racist.

Corporate America has come a long way in addressing racial issues in the work place but only after they've been bent a couple of times. Now the judicial system is leaning the other way IMHO and that makes it hard on everyone.