The Wal-Mart holding will make it especially difficult for employees in differing job classifications to team together to win a class action discrimination lawsuit.  Meanwhile, the AT&T case arose not from the employment realm at all, but rather from a seemingly mundane consumer dispute.

A California couple, Victor and Liza Concepcion, claimed they had unknowingly signed away their right to initiate a class action against AT&T as part of a form agreement.  They were upset after being charged $300 for a cell phone that had been touted as free.  The Concepions argued that the arbitration clause they signed should be struck down as unconscionable because its classwide ban would leave them and other similarly-situated consumers without representation.

But just as in Wal-Mart v. Dukes, the AT&T case broke down along strict ideological lines with the five conservative justices voting to uphold the classwide ban in another 5-4 opinion.  Writing for the Court, Justice Antonin Scalia asserted that courts must place arbitration agreements on equal footing with other contracts and enforce them according to their terms.  “Requiring the availability of classwide arbitration,” he said, “creates a scheme which is inconsistent with the Federal Arbitration Act.”

While the underlying facts arose from some unhappy consumers, it does not take much of a leap to see how the holding’s language could affect employees confronted with similar arbitration agreements by their employers.  No less an authority than veteran San Francisco plaintiff’s employment attorney Cliff Palefsky has said of AT&T v. Concepcion, “There’s a potential for mischief.” He adds that the ruling is sure to extend to arbitration clauses in the employment realm.

When the Wal-Mart and AT&T opinions are coupled together, the picture at the Supreme Court from this past term may not be a pretty one for employees.  But for those willing to dig a little deeper, the term actually reveals gains for workers when it comes to workplace anti-retaliation protections.

In a trio of cases, the justices ruled decisively for employees who alleged they were the victims of retaliation under Title VII of the Civil Rights Act, the Fair Labor Standards Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA).  In two of the disputes, the decisions were unanimous while the third resulted in a 6-2 victory for the plaintiff employee.

The civil rights case, Thompson v. North American Stainless, involved a Kentucky man who said he was fired from his job because his fiancé had filed an EEO complaint against their employer.  While the Sixth Circuit Court of Appeals had held there is no cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity themselves, the Supreme Court soundly rejected that ruling.

In an opinion that was authored by Justice Scalia, the Court called it “obvious” that retaliating against an employee by firing her fiancé could dissuade that person from filing an EEO complaint or engaging in other legally-protected acts.

In another unanimous pro-employee outcome, Staub v. Proctor Hospital, the High Court held that employers may be liable for discrimination even when the decisionmaker herself harbored no discriminatory animus toward the plaintiff.  That marked yet another Justice Scalia opinion.

The case involved the claims of a military reservist who purportedly had been terminated from his job at an Illinois hospital for insubordination.  The plaintiff Vincent Staub said, however, that the real reason was because his immediate supervisor and another supervisor had an anti-military bias.  He claimed both were upset because of time he had missed while serving on active duty in Iraq.

The actual decisionmaker, though, was an HR vice president who had acted with no apparent bias.  Nonetheless, the Supreme Court found that lack of hostility to be irrelevant.  That’s because the supervisor who allegedly frowned on Staub’s military obligations was the same one who wrote up the report that the HR vice president relied upon in making her decision.

Meanwhile, another employee prevailed at the nation’s highest court in the Fair Labor Standards Act retaliation case of Kasten v. Saint-Gobain.  The justices ruled that the FLSA protected a Wisconsin factory worker’s complaints about the placement of time clocks even though he never made them in writing.

The Court found that oral complaints to company officials were enough.  In reaching their ruling, the justices reasoned that it was unlikely Congress would have wanted to limit the labor law’s effectiveness by excluding those who would find it hard to reduce their complaints to writing, namely illiterate, less educated or overworked employees.  It’s an opinion that is sure to aid the rights of blue-collar workers.

So what can we draw from these results?  The Supreme Court has a well-earned a reputation as a pro-business court.  And these three opinions hardly represent a seismic shift.  But while none of them are on the scale of the Wal-Mart or AT&T rulings, they ARE significant.

In all three of those retaliation cases, the employees had lost at the federal appellate level.  The fact that the Supreme Court saw fit to hear all three of those disputes and to issue one-sided reversals each time is a sign that the justices are willing to take a strong stand against retaliation in the workplace, at least when individual employees are affected rather than a large class.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

The gender-discrimination lawsuit against the world’s most notorious retail giant had been pending for years. Now the Court’s majority opinion has declared that, in light of “Walmart’s size and geographical scope,” the plaintiffs could not provide “significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here.”

And with that, Justice Antonin Scalia rendered perhaps hundreds of thousands of working women absent from the discussion on gender discrimination in today’s sink-or-swim economy. The split in the most significant part of the judgment, the class-action aspect, was five to four, putting all the female justices in the minority. The division ironically suggested a lack of self-reflection on how structural gender discrimination works in powerful institutions.

The core of the decision is not about whether Walmart did indeed discriminate. There’s ample evidence of that, though, including records of pay scales skewed against women, unequal hiring patterns in managerial positions, and expert testimony on the social implications of these trends. The Court’s opinion doesn’t examine that, but rather whether America’s discount paradise can be held legally accountable for systematic mistreatment of female workers.

The ruling was a high-five moment for the right, as it allows Wal-Mart executives to skirt a gargantuan liability. Going forward, the decision will in many circumstances leave the women on their own in seeking legal redress, since their claims can’t be in a mega-suit. Although Wal-Mart’s main defense is that it’s not responsible for lower managers who violate non-discrimination rules, the plaintiffs alleged a crime of omission: that the corporation failed in its responsibility to prevent bias against women as a matter of policy. A statment from the case sums up their position:

The discrimination to which they have been subjected is common to all Walmart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Walmart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.

By enabling discrimination, the suit contended, Walmart should be held liable all the way through the command chain, from the exec in the boardroom down to the greeter at the store entryway. That’s where lead plaintiff Betty Dukes got stuck. She was demoted to greeter after working higher positions at a Pittsburgh, California store, she alleged, primarily because management retaliated against her for formally complaining about her treatment. Male colleagues who behaved similarly, Dukes says, never faced the same discipline.

There’s also Edith Arana. The former employee, who like Dukes is a black woman, claimed that after five years of working at Walmart in Duarte, California, she sought management training and was told, “there’s no place in management for people like you.”

After leaving the job, Arana told PBS NewsHour in 2004:

I have never seen a man that has, like, struggled, done everything he was supposed to do, worked overtime, sacrificed his family time, come in on days that he wasn’t supposed to—I’ve never seen a man that would go through that and not get what he was promised. But the women, they do it over and over and over again.

The setback in this suit doesn’t mean women can’t go after Walmart for discriminatory practices. We may in the near future see more targeted, smaller-scale litigation (including suits related to racial discrimination)—or perhaps even more grassroots political pressure campaigns on this issue.

But the decision will no doubt discourage legal action by giving many women no choice but to go through the arduous process of filing suit on an individual, not group basis. Meanwhile, Walmart will continue to expand its influence on the workforce gender divide by employing more female employees, and subjecting more women to the indignities of discrimination, gradually eclipsing workers’ civil rights in the shadow of the Big Box industry.

Following the ruling, Debra L. Ness, president of the National Partnership for Women and Families warned in a statement that the case would open the door to more discrimination with impunity in the corporate world:

Today’s ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it. This creation of a potential ‘large company’ exception to our civil rights laws is a perversion of justice.

In other words, the bigger the company, the larger the workforce, the greater the potential for discrimination, the deeper the economic injustice throughout our communities… and the smaller a worker’s chances of getting her day in court.

This article originally appeared on the Working In These Times blog on June 21, 2011. Reprinted with permission.

About the Author: Michelle Chen ’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.

The decision also allowed Arizona to continue the so-called “business death penalty,” which entails denying a business license to employers found guilty more than once of violating a 2007 law against hiring undocumented workers.

The e-Verify system has been widely criticized for errors, including flagging legal and native-born residents as undocumented. That’s among the reasons Illinois sought to ban its use by private employers. A federal court shot down those efforts, but the Illinois legislature did pass a state law trying to safeguard against the misuse of the system.

All employers with federal contracts are required to use E-Verify, and Texas Republican Congressman Lamar Smith is among those pushing to make it mandatory nationally.

Immigrants rights groups are allied with employers – even those that they allege exploit undocumented immigrants – in stridently opposing mandatory e-Verify use. The Supreme Court decision was the result of a lawsuit filed by the Chamber of Commerce opposing Arizona’s law. The U.S. Chamber of Commerce and other employer groups also sued unsuccessfully over the mandate that E-Verify be used by federal contractors. Florida has proposed a bill similar to Arizona’s regarding E-Verify. The Hispanic Chamber of Commerce opposes it.

Agricultural employers and immigrants rights groups point out that the nation’s guest worker program and overall immigration system are so badly broken that agricultural growers will simply not be able to find the needed employees especially during harvest times if they really are barred from hiring undocumented workers.

Lynn Tramonte, deputy director of the group America’s Voice Education Fund, said in a press release:

Yesterday’s Supreme Court ruling is a dagger in the heart of Arizona agriculture.  If this type of law spreads nationwide, we will essentially deport the entire agriculture industry—including jobs held by Americans—and be forced to import more of our nation’s food supply. Passing a mandatory E-Verify law without comprehensive immigration reform will kill American jobs and farms, burden small businesses, reduce tax revenue, and drive undocumented workers further underground.

U.S. Agriculture Secretary Tom Vilsack made similar points in an op-ed:

As Secretary of Agriculture I have met farmers and ranchers all over the country who worry that our immigration system is broken. They are unable to find the necessary number of farmworkers and sometimes struggle to verify their work authorization papers – all while wondering if they’ll have enough help for their next harvest.

And while some American citizens step up and take these jobs, the truth is that even when farmers make their best efforts to recruit a domestic work force, few citizens express interest, and even fewer show up to spend long hours laboring in the hot sun.

In a twist on the misguided idea that immigrants “steal” American jobs, Vilsack described immigrant farm workers essentially protecting U.S. jobs through their crucial role on U.S. farms:

If American agriculture lost access to adequate farm labor, it could cost the industry as much as $9 billion each year. Already, some American producers are opening up operations in Mexico. So we must take action to prevent the further outsourcing of farm-related jobs.

Meanwhile, the Bay Citizen nonprofit news outlet described how lucrative wineries in Napa Valley, Calif., have found it in their own self-interest to treat undocumented workers fairly, rather than paying them as little as possible or sometimes not at all as is often the case in agriculture and other industries that hire large numbers of undocumented workers.

Emmy-winning producer Scott James reported:

Without migrant labor, most of it from Mexico, the wine producers in Napa would be hard pressed to fill a carafe, much less the valley’s nine million annual cases. Experts estimate that 8,000 to 12,000 illegal migrants reside (often seasonally) in Napa, although the number is impossible to confirm.

Ten years ago, they could be found living in the woods in makeshift camps, sleeping on fetid mattresses and drinking from dirty streams. Today they receive subsidized housing, or can reside in three tidy dormitory complexes near St. Helena and Yountville where up to 180 workers pay $12 a day for room and board.

This Blog Originally appeared in These Working Times on May 30, 2011. Reprinted with Permission.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

The call brought back, with surprising immediacy, those 1991 hearings. For those too young to remember, the hearings may be little more than a paragraph in a history text. But it’s hard to overstate their importance.

For women at the time, Professor Hill’s testimony was riveting and unforgettable. The country watched on TV as Hill related her personal story — describing the sexual harassment she said she endured while working for Thomas as a federal government employee — before a Judiciary Committee composed entirely of men. Not a single woman senator. (Thomas denied the allegations.)

The issue of sexual harassment was out of the shadows.

Before Hill’s testimony, sexual harassment was viewed as a problem for victims, predominantly women, to solve on their own. Most women suffered in silence rather than jeopardize their careers by complaining, even though sexual harassment had been defined as a form of sex discrimination that could be illegal more than a decade earlier by the courts and the federal Equal Employment Opportunity Commission (or EEOC).

Professor Hill was berated and personally attacked during the hearing. Former Wyoming Sen. Alan Simpson waited until Anita Hill’s testimony was concluded to announce, for example, that “I really am getting stuff over the transom about Professor Hill,” without providing any details or substantiation about what he was referring to.

Such treatment became the subject of dinner table conversations around the country, as did the problem of sexual harassment itself. And those conversations continued wherever women met.

Pundits speculated that the Anita Hill testimony would forever intimidate women from ever coming forward again, but the opposite happened.

After the hearings, the number of claims of sexual harassment filed with the federal EEOC (the very agency headed by Clarence Thomas where Anita Hill said he had sexually harassed her) more than doubled between 1991 and 1998 (from 6,883 to 15,618).

And women demanded better legal protection. Congress strengthened remedies for victims of sexual harassment at work by passing the Civil Rights Act of 1991, providing damages for the full range of injuries that victims might suffer and giving victims the right to trial by a jury of her peers.

Major victories in the courts struck blows against widespread sexual harassment that women suffered in the workplace, from the mines to Wall Street. Employers took notice, so that now anti-harassment policies are more robust and company training programs are commonplace.

In the aftermath of Anita Hill’s testimony, Justice Thomas was narrowly confirmed to the Supreme Court by a vote of 52 to 48. In what became known as “the Year of the Woman,” record numbers of women were elected to Congress: 28 women were elected to the House of Representatives, more than doubling the total number of female representatives to 47, and four new women joined the only two women then serving in the Senate.

One of those new female senators from the class of 1992, Dianne Feinstein of California, now sits on the Senate Judiciary Committee. Anita Hill dedicated her career to combating discrimination, including sexual harassment, and opening equal opportunity to all in the workplace and beyond.

The voicemail message from Justice Thomas’s wife is a reminder of a moment in time that put a spotlight on sexual harassment. But our country still needs more discussion about the serious harm it causes.

Sexual harassment has certainly not gone away.

The National Women’s Law Center, for example, recently filed an amicus brief in a lawsuit where a female electrical maintenance technician in a male-dominated workplace says she was constantly harassed — with supervisors and co-workers routinely referring to women with demeaning and derogatory words, displaying provocative photos of naked and partially clothed women in common areas throughout the workplace (and not responding to her repeated requests that the photos be taken down), and excluding her from key daily meetings.

Whether bullying and harassment in schools or making women’s lives miserable in the workplace, it’s time to make sure our laws are strong enough, our institutions committed enough, and our public debate serious enough to give women and girls the protections they need and deserve.

There’s still work to be done. For example, Congress needs to eliminate arbitrary limits on damages for sexual harassment victims and to change current legal standards that make it more difficult for students to prove sexual harassment than other claims of discrimination in schools.

Any less not only does an injustice to women and girls, but to our country as well, which needs the talents and skills of us all to thrive.

The opinions expressed in this commentary are solely those of Marcia Greenberger.

This article was originally posted on CNN.

About The Author: Marcia D. Greenberger is Co-President, and co-founder, of the National Women’s Law Center, which since 1972 has been involved in virtually every major effort to secure and defend women’s rights. She testified at the Senate hearings against the nomination of Clarence Thomas to the Supreme Court based on his record, before the information concerning Anita Hill became public. Anita Hill currently serves as a board member of the National Women’s Law Center.

Educational and employment tests rose to prominence after the civil rights revolution of the 1960s. They signaled that a college or employer valued ability and was committed to equal treatment. With the SAT, the New Haven fire captain’s exam, or the popular General Aptitude Test Battery, each candidate’s numerical score could be plotted on a curve. A scientific judgment could be made about who was most able, most meritorious, and most deserving of a desk in the classroom or a seat on the fire truck.

While both kinds of tests were popularized by equal opportunity laws, educational tests have had a very different legal and practical history than employment tests. Berkeley and the University of Michigan and Yale and Harvard took SAT test scores with a grain of salt, in part because data from millions of test-takers showed that the test does not predict college performance very well for African-Americans. When elite colleges made a concerted effort to diversify the student body in the 1960s, they avoided hard numerical cutoffs for SAT performance and instead took a range of different indictors, like high school grades, into account. Non-elite colleges were admitting almost all comers, so the test mattered little for the average college applicant.

Many companies responded to the Civil Rights Act of 1964 by installing hiring and promotion tests on the theory that these could guarantee that placement was based on merit, not bias. While police and fire departments came to rely heavily on tests, the relationship between test and job performance was problematic, like the relationship between SAT and college performance. Employers often used general ability tests that covered basic high school math and English skills for jobs in auto factories and airplane plants that didn’t require these skills. People who do well on the GATB can make lousy bricklayers. The disconnect between test scores and job performance was the basis of a the Supreme Court’s landmark Griggs v. Duke Power decision in 1971, in which African-American plaintiffs argued that they had been denied posts at Duke Power because they scored poorly on a test that measured skills unrelated to the job. Substandard segregated high schools had prepared African-Americans poorly for such tests, and so many promising candidates for jobs botched the test. The Court ruled that hiring and promotion practices that have a “disparate impact” on certain groups, and serve no business purpose, can be discriminatory.

Personnel psychologists echoed the court’s call for tests to be validated — statistically proven to predict job performance. Lower courts encouraged validation, but Washington made no hard and fast rule that employers must validate job tests. As a result, HR departments sometimes used psychologists’ stringent criteria to validate employment tests, but more often they used guesswork or, as one HR manager told me in an interview, decided they would “throw themselves on the mercy of the court” if they were sued for using a discriminatory test. Even big city police and fire departments, many of whom were under court order to integrate, continued to use tests that had not been validated, and that were known to exclude almost all African-American or Latino candidates. New Haven’s captain’s test had not been validated. While some police and fire departments followed colleges in using supplemental criteria for selection, such as performance in a mock fire, many did something like New Haven, which gave the multiple choice exam a weight of 60% and an oral exam a weight of 40%. In effect, no one below a certain threshold could win a lieutenancy or captaincy.

In colleges, we know that the SAT isn’t a perfect predictor of success, and so we don’t exclude all candidates below a particular score. In fire departments, which use any number of different tests, fire chiefs frequently have no idea of whether the exam is a good predictor of job performance, and yet they rule out candidates below a particular score.

Would Sonia Sotomayor have passed the New Haven lieutenant’s exam? Perhaps, though there are some reasons to think she might not have. She reports that her SAT scores for Princeton and her LSAT scores for Yale were not on par with those of her peers, and that she had to teach herself grammar and vocabulary and the classics when she got to Princeton. She likely wouldn’t have gotten into either Princeton or Yale if they had used hard cutoffs, but that didn’t stop her from graduating summa cum laude from Princeton and making the Law Review at Yale. She may have done a middling job on the SAT for any number of reasons. Perhaps growing up in a housing project in the Bronx didn’t give the preparation that a childhood in Scarsdale and at Exeter Academy might have. Perhaps learning English as a second language put her at a disadvantage. Or perhaps she choked. Social psychologists find that minorities often blow tests when they are thinking of their status, and excel when they aren’t.

Soon to be Justice Sotomayor hoped as a child to become a detective. If she had followed that dream, she might well have struggled with the police department’s detective exam and been stuck as a beat cop. The world of policing would have lost a natural leader, and a great intellect. Police and fire departments could stand to learn one thing from colleges and universities. If multiple choice tests don’t predict college test-taking very well, they surely don’t predict policing and firefighting very well. Chiefs would be well advised to look at a wider range of criteria, as Princeton and Yale did in the case of Sonia Sotomayor.

Frank Dobbin is the author of Inventing Equal Opportunity

Frank Dobbins: Frank Dobbin is professor of sociology at Harvard. He has studied corporate equal opportunity and diversity programs for more than two decades. In his most recent work, with Alexandra Kalev, he is developing an evidence-based approach to diversity management, using a large sample of firms and thirty years of data to analyze the effects of popular diversity programs on workforce integration. His Inventing Equal Opportunity (Princeton University Press, 2009) traces the evolution of corporate equal opportunity and diversity programs put into place by human resources managers – programs that ultimately define discrimination in the American mind.

1. The Holding. The defendants’ decision to not use test results because their use would have meant that no African-American and only two Hispanics, who made up over half of the testtakers, would be promoted was intentional disparate treatment discrimination against the white testtakers who would have been promoted if the test results had been used. That the adverse impact of the test results amounted to a prima facie case of disparate impact discrimination was not a defense to a disparate treatment case unless the employer has a strong basis in evidence to believe that it will be liable for disparate impact discrimination.

2. A Procedurally Unusual Decision. The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial. The four slip opinions run a total of 89 pages; 31 pages – 38% of the total — deal with relatively straight forward recitation of facts, most of which are quite constested.  Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

3. Acting When the Race of Those Affected is Intentional Discrimination. The key factual finding of the Court is that: “All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed compared to white candidates. . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. . . . [T]he city made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law.  For example, in Justice O’Connor’s concurrence in Price v. Waterhouse, she indicated that, “Race and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral and nondiscriminatory fashion.”

Justice Alito is convinced that, because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law. Justice Ginsburg argues that the decision may have been made “because of politics” and not race since the white firefighters and their union were vociferous advocates for using the test. The decision may have been because of race or because of politics or because of some of each. Doesn’t this suggest a factual question that deserves a trial?

4. Should the African-American and Hispanic Testakers Claim Disparate Treatment Discrimination? Suppose that New Haven now uses the results of the tests and promotes some white firefighters. Because the City knew the race of those promoted, was that intentional discrimination against minority testakers who were not promoted? If not, why not? Is using the test results to promote people different from deciding not to use them?

The Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion), and Ricci appears to import that into Title VII. These decisions involve challenges by whites to the use of race in a way that gives advantages to minority group members or, as here, removes an absolute impediment to the advancement of African-Americans and Hispanics. If a color-blind standard can be used by white plaintiffs, why can’t these minority firefighters rely on it?

5. Is Proof of Intent to Discriminate Reduced to Proving the Defendant Knew the Race of the Affected Individuals? Is racial consciousness, when acted upon, the same as acting with an intent to discriminate? If so, Ricci revolutionizes discrimination law. Assume an African-American applies but is rejected for a job after an interview. Does she establish defendant’s liability by getting the defendant’s interviewer to admit that she was conscious of the fact that the plaintiff is black?

6. The Strong Basis in Evidence Justification. In United States v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996) (en banc), cert. dismissed, 522 U.S. 1010 (1997), the court had imported equal protection analysis into Title VII’s treatment of affirmative action. Does the Court’s adoption of the strong basis in evidence test effectively implement that importation?  Only Justice Ginsburg in dissent puts this decision into context with the Title VII affirmative action decisions to criticize this decision. Are these affirmative action decisions in jeopardy now?

7. The “Q” Word Strikes Again. Is the fear that employers would have an incentive to use racial quotas what drives this decision?

8. Why Isn’t There Strong Support for Disparate Impact Liability? The Court concluded that, “The racial adverse impact here was signicant, and . . the City was faced with a prima facie case of disparate-impact liability.” The Court then minimizes what that means: “[A] prima facie case of disparate-impact liability – essentially a threshold showing of a significant statistical disparity and nothing more – is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.”  Does this undermine the significance that this prima facie showing shifts both  the burden of proof and of persuasion to the defendant?  Is the Court attempting to reinstate Wards Cove?

9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?

10. Was Section 703(h) Test Provision Superseded by the 1991 Civil Rights Act? The Court does not address the jurisprudence associated with the test exception in original §703(h). Has the Court decided sub silentio that this provision and its underlying jurisprudence has been repealed when Congress codified disparate impact law in new § 703(k)?

11. Were There No Less Discriminatory Alternatives as a Matter of Law? The record showed alternatives that were less discriminatory – simply altering the ratio of written to oral scores appeared to have reduced discriminatory impact in Bridgeport, using “assessment centers” or altering the “rule of three” to a banding approach – all were alternatives that could have been adopted instead of the test that was used.  The Court appears to assume that, because it was too late to adopt any of these alternatives to resuscitate this test, they could not count as alternatives. But, in fact, the City could consider these precisely because it had decided not to use the results of this test.

12. Should the Minority Testtakers Claim Disparate Impact Discrimination? Assuming the City would now use the test results, should the African-American and Hispanic testtakers bring a disparate impact claim? With the Supreme Court deciding as a matter of law that the test was job-related and consistent with business necessity and that there were no less discriminatory alternatives available, is there anything left to contest?

13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?

14. Is This 1989 Redux? It has been twenty years, but has a new conservative majority in the Roberts Court been able to undermine Title VII just as the Rehnquist Court majority did then? Will Justice Ginsburg’s prediction that this decision will not last prove true?  Will this new majority take the step argued by Justice Scalia to embed Ricci in the Constitution by striking down disparate impact analysis as unconstitutional?

About the Author: Mike Zimmer is a law professor at Loyola University Chicago.  One of his main areas of concentration, which includes co-authoring an Aspen casebook, is employment discrimination. He graduated from Marquette Law School, clerked for Judge Fairchild on the 7th Circuit, worked at Foley & Lardner and have taught at a good number of law schools. Zimmer joined the Loyola faculty after 30 years at Seton Hall Law School.

This article originally appeared in Workplace Prof Blog on June 30, 2009. Re-printed with permission by the author.

Featured speakers on the call included Tina Tchen, White House office of public engagement director; Janet Murguia, National Council of La Raza president & CEO; Bill Yeomans, Alliance for Justice legal director; Marge Baker, People For the American Way director of public policy; Wade Henderson, Leadership Conference on Civil Rights president & CEO; and Ellen Buchman, Leadership Conference on Civil Rights vice president for field operations.

On the call, we discussed how Judge Sotomayor’s distinct and impressive qualifications make her an exemplary Supreme Court nominee to the nation’s high court. We reviewed the process from nomination to confirmation, and shared information about what you and your organization can do to get involved in the process.

Here are four things you can do right now to ensure an expedient and fair confirmation process and engage others in support of Sotomayor:

1)  Call Your Senators. Urge them to support an orderly and fair confirmation process of Judge Sonia Sotomayor to the U.S. Supreme Court:

http://www.civilrights.org/action_center/support_sotomayor_process.html

2)  Watch the “Justice” Ad and Go Viral. The Coalition for Constitutional Values has a new 30-second television ad to introduce Judge Sonia Sotomayor. The ad highlights her fair-minded approach to the law, which is grounded both in her eminent legal qualifications and her life experiences. Watch the ad, email it to five friends, post it on Facebook, or add it to your website:

http://www.constitutionalvalues.org

3) Sign the Pledge. Support constitutional values through the nomination and confirmation of this superb candidate. Pledge to support the Coalition for Constitutional Values and learn more about Judge Sonia Sotomayor and how you can get involved by joining the coalition:

http://www.constitutionalvalues.org/?page_id=24

4) Read Up on Sotomayor. Check out the Alliance for Justice Preliminary Report on the nomination of Judge Sonia Sotomayor to the Supreme Court:

http://www.afj.org/check-the-facts/supreme-court-watch

Together we can make sure Justice Sotomayor is swiftly approved to become our next Supreme Court Justice.

About the Author: Paula Brantner is Executive Director of Workplace Fairness, which hosts the Today’s Workplace blog, and has worked as an attorney in the area of employment discrimination and civil rights law for over 16 years. Workplace Fairness is a nonprofit organization that provides information, education and assistance to individual workers and their advocates nationwide and promotes public policies that advance employee rights.

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But, there is good reason to believe that the white and Latino firefighters who sued were not the most qualified for promotion.  In reality, the issue in Ricci is not reverse discrimination against better-qualified white candidates.  It is a question central to the lives of every American, of every race — “Is the person with the highest multiple-choice test score necessarily the most qualified?”

So, in contrast to the typical reverse discrimination case, it is the qualifications of those who filed the lawsuit that are in question. The Ricci oral argument suggests that the justices are likely to split along familiar 5-4 ideological lines, with Justice Anthony M. Kennedy as the deciding vote. What has not been made clear in media reports about the case is how different it is from situations where less-qualified minorities benefited from racial preferences.

The reality is that several minority firefighters performed very well on the firefighter exam. Out of more than 100 candidates competing for the seven vacant captain positions and eight open lieutenant positions, Latino firefighters ranked in seventh, eighth and 13th place on the captain list and African American firefighters ranked in 14th, 15th, and 16th place on the lieutenant list. But because of a rule requiring promotions to be doled out in strict rank order, all eight of the lieutenant positions would definitely have gone to whites, who ranked first through 10th on the list, and six of the seven captain positions were likely to go to whites, as well, because they ranked first through sixth.

This is what put New Haven officials between a rock and a hard place or, as Justice David H. Souter said from the bench during oral argument last month, in a “damned-if-you-do-damned-if-you-don’t situation”. The city’s attorney told officials they could be sued by the high-scoring African American and Latino test-takers for violating federal civil rights laws unless they had scientific evidence to show that the white candidates were truly more qualified than the minorities who would be passed over for promotion.  This and other comments made by Justice Souter, the justice whom Judge Sotomayor has been nominated to replace, signal that he, like Sotomayor, views New Haven’s actions as constitutionally valid.  

As a legal matter, employers are prohibited from using tests that have an unjustified racially “discriminatory effect.” It is undisputed that if the list had been certified by city officials, the 2003 promotions would have been so disproportionately white it would have violated federal employment discrimination guidelines. When an employer selects one racial group at higher rates than other racial groups in violation of these guidelines, known as “the four-fifths rule,” members of the adversely affected group have grounds to sue in federal court for race discrimination.

In this case, if minority firefighters had filed a lawsuit, the burden would fall on the city of New Haven to present a scientific justification that the whites who were selected are better qualified than the minority applicants who were not promoted.

Like all standardized tests, the New Haven firefighter multiple-choice test was neither all-powerful nor perfectly precise. The reality is that there is not a clear scientific basis for concluding that the 17 white candidates and one Latino candidate, who were ranked at the top of the lists, were more qualified than the African American and Latino officers who had high scores on the test but ranked slightly lower. As a group of employment testing experts has explained in their own brief to the Supreme Court, the city of New Haven could not prove that ranking in the top-10 of over 70 test-takers means you are truly more qualified than someone who ranked in the top-15.

First, the city did not have a good scientific basis for the amount of weight it placed on the multiple-choice test — 60 percent of a firefighter’s rank on the list. In a neighboring city, Bridgeport, Conn., the fire department only gave the multiple-choice test a 30 percent weighting.

Second, using the lieutenant list as an example, we cannot be certain that the top-10 firefighters (all of whom were white) were more qualified than the top-15 firefighters (two of whom were African American) because the company that made the New Haven firefighter test has admitted that the exam does not measure important skills for the job in question. In fact, it is undisputed that the New Haven firefighter exam was not designed to measure command performance or supervisory skills.

As explained in the Supreme Court brief filed by the employment testing experts, one of the important qualities distinguishing a good fire officer from a good entry-level firefighter is that supervisory officers must have a “steady presence of command so that the unit will follow orders and respond correctly to fire conditions.” Firefighters need “command presence” in order to lead their command units in safely and effectively fighting fires.

Finally, New Haven had reason to believe it might lose a lawsuit filed by minority firefighters because there were less racially discriminatory tests available to identify the firefighters most qualified for promotion. For instance, employment testing experts have found that “assessment centers” — facilities that test firefighters using standardized job-simulation exercises — do a better job than multiple-choice tests of weeding out firefighters who are “book smart, but street dumb.” These centers compare entry-level firefighters based on their ability to do real-world tasks that are typically performed by a firefighter “on the job” instead of comparing how well they answer questions about firefighting on a pencil-and-paper multiple-choice test.

In fact, there is every reason to believe that the firefighters who filed the Ricci lawsuit would not have ranked in the same position on the list had New Haven evaluated firefighters at an assessment center.  In addition to resulting in fewer racial differences in test scores, research shows that the white firefighters who perform best on multiple-choice tests do not always fare as well on tests at assessment centers that simulate real-world firefighting tasks.  In other words, using test scores from assessment centers leads to both to the promotion of greater numbers of minority firefighters and results in the promotion of different, more qualified white firefighters.

Thus, there is a strong argument that promoting firefighters based on their performance in job simulations increases more than racial diversity in the upper ranks of fire departments. It increases public safety.

In most cases challenging standardized testing, the issue is whether test scores were used properly. Here, instead of claiming that the city used a test improperly, firefighters are suing a city for putting a stop to its own improper use of a standardized test. Even in our increasingly test-centered society, this is a striking claim. The city was right to put a halt on promotions because there is no proof that those at the top of the list were more qualified than those firefighters ranked just below them.

About the Author: Kimberly West-Faulcon is a constitutional law professor at Loyola Law School, Los Angeles. Her most recent research on the legal implications of the psychometric properties of standardized tests, “The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws,” appears in the current volume of the University of Pennsylvania Law Review.

A version of this op-ed originally appeared in the Los Angeles Daily Journal on May 13, 2009. Reprinted with permission by the author.

Sonia Sotomayor’s performance as a federal judge had already been criticized in some quarters even before President Barack Obama on Tuesday nominated her to the Supreme Court. These critiques come in three flavors: first, that her decisions show she just isn’t a very good judge; second, that Obama improperly relied on diversity to make an “affirmative action” choice; and third, that she is too intemperate for the job. The bases for these criticisms are thin, persuasive only to the many commentators and senators already inclined to oppose any Obama nominee.

The first line of attack, on Sotomayor’s rulings, does have some very recent ammo: Ricci v. DiStefano, a case the Supreme Court should decide just days or weeks from now. In Ricci, Sotomayor was part of a unanimous three-judge panel that allowed the New Haven Fire Department to jettison the results of a promotion test that resulted in a disproportionate number of whites receiving top scores.

Critics say Sotomayor ruled to allow blatant reverse discrimination, but the reality was more complex for the poor City of New Haven, Conn., which faced competing demands under federal law: (a) avoid discriminating by race, including against whites and also (b) consciously undertake efforts to eliminate even well-intended job tests that have a “disparate impact” on racial minorities, unless the test is a provable “business necessity.” Each is a clear textual command of federal law, and each crashes headlong into each other, making it certain that some judges would rule one way while others rule the opposite.

Whichever way the Supreme Court rules, the decision seems unlikely to be unanimous (most of the recent affirmative action and reverse discrimination cases were 5-4 votes), but that doesn’t mean either side is “bad at judging.” The difference of opinion means only that among skilled judges there is a philosophical difference on a difficult legal question, one we already knew: the current Supreme Court majority (Justices Antonin Scalia, Clarence Thomas, John Roberts, Samuel Alito and Anthony Kennedy) is more aggressive about policing “reverse discrimination” against whites, while a current Supreme Court minority (Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer) and many lower-court judges (such as Sotomayor) do not see any impermissible “reverse discrimination” in applying the rule against allowing most tests that effectively screen out racial minorities.

A broader look at Sotomayor’s jurisprudence shows an impressive body of work, including in the same field as this more controversial recent case. For example, when I first heard Sotomayor’s name floated, I looked up some of her old written judicial decisions, and I was pleased to see that one of my favorite federal appellate decisions in employment law (a field of mine), Raniola v. Bratton, was Sotomayor’s handiwork (a piece of trivia I had forgotten over the years).

In the 2001 opinion, Sotomayor led a unanimous appellate panel in reversing the pretrial dismissal of a female police officer’s claims of discrimination, retaliation, and a hostile work environment. Sotomayor’s opinion was meticulous, addressing every one of the trial judge’s rulings and rationales methodically, with exhaustive citations to prior judicial decisions from around the country — a more scholarly effort than typically is necessary for a decision on an individual New York police officer’s individual claim. Agree or disagree with her on contentious issues like discrimination law, Sotomayor is a thoughtful, scholarly judge whose work holds up with the best of them.

The second line of attack, on Sotomayor as an “affirmative action” choice, implies that Obama sacrificed merit selection in favor of diversity selection. But Sotomayor’s resume qualifications are unimpeachable: 17 years as a federal judge, at both the trial and appellate levels (unlike the nine current justices, whose only judging experience has been on appeals, not trials); impeccable academic credentials (graduating summa cum laude from Princeton University and, then, from Yale Law School, where she was an editor of the school’s most prestigious academic publication, the Yale Law Journal); and varied legal practice experience (she was a criminal prosecutor in Manhattan and then a civil litigator, eventually specializing in intellectual property work).

Still, even the best resume gets you only on a long list of similarly qualified candidates — just ask federal appellate judges J. Harvie Wilkinson, Edith Jones, J. Michael Luttig, Emilio Garza or any of the other impressive Republican Supreme Court candidates whom President George W. Bush passed over in 2005 in favor of then-federal appellate judges Roberts and Alito.

Admittedly, among the list of qualified candidates, Sotomayor was especially appealing because of the diversity she would bring to the court — not just a women to join a currently almost all-male court, and not just the first Hispanic justice, but also an individual who came from humble beginnings. Her mother, a nurse, raised her in the South Bronx after her father passed away in her youth.

The Supreme Court is the least diverse branch of the federal government, in part because due to its low turnover (only one opening every four years or so) and age of its nominees (most nominees are in their 50s), the current Supreme Court largely reflects the pool of 50-something lawyers in the 1980s and 1990s, which in turn reflects the pool of those attending law school in the 1960s — for historical reasons, not the most diverse crowd.

With the Supreme Court, a critical institution that lags the rest of the government (and private industry) in diversity and that is impossible to diversify immediately, Democratic and Republican nominations alike have considered diversity, even of the purely race-and-gender sort — contrary to the “affirmative action is for liberals” folklore. For his first Supreme Court nomination, in 1981, President Ronald Reagan, having promised to appoint the first female justice, picked Sandra Day O’Connor, who turned out to be the most powerful justice of the 1990s and early 2000s despite a light record of prior accomplishment; O’Connor had been a state legislator and state lower court judge, a far cry from Sotomayor’s resume.

A decade later, in 1991 President George H.W. Bush famously declared “the best-qualified person” for the Supreme Court to be Thomas, who at the time had barely a year of judicial experience and was the youngest court nominee in decades — but who just happened to be an African-American Republican available to replace the retiring Thurgood Marshall, the Supreme Court’s only African-American Justice.

President George W. Bush’s ill-fated nomination of Harriet Miers came after he demanded that staffers specifically provide him female names for potential nominees, according to recent published reports.

So the likely “affirmative action” attacks on the Sotomayor nomination miss the mark, both in their insinuation that she lacks impressive qualifications and in their implication that only liberal Democrats consider diversity relevant to a high court as important as it is non-diverse. Someday, the Supreme Court will be diverse enough that presidents will face less such pressure — but the current court of seven white men, one African-American man, and one white woman isn’t quite there yet.

The third criticism of Sotomayor — that she is an intemperate bully — derives largely from a collection of anonymous quotations in the Almanac of the Federal Judiciary. These reviews, submitted by practicing lawyers, are not pretty: “She is a terror on the bench.” “She is very outspoken.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out-of-control manner. She makes inappropriate outbursts.”

Like many lawyers, I do read the AFJ when I need background information on a judge, but its anonymous quotations have to be taken with a few grains of salt. I do not believe the AFJ ever has claimed that the comments they publish are a random sampling of the great many comments they receive, as opposed to a sampling of the most notable comments. More importantly, some of the complaints struck me as suspiciously common attacks on outspoken, high-powered women. How many men are criticized for being “very outspoken”? Do Sotomayor’s critics see it as a bad thing that Scalia frequently is “overly aggressive” on the bench and in his notoriously entertaining public speeches?

Some quick numbers bear out the suspicion of gender bias in the anonymous criticisms of Judge Sotomayor. Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a “bully” or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary — that male judges are more likely to be aggressive, whether in proper or improper ways.)

While my small-number statistics don’t qualify as an official empirical study, anyone with experience in supervisor evaluations of employees, student evaluations of professors, workplace promotion decisions, etc., knows that assertive women are more likely to be criticized as “excitable,” “overly aggressive,” etc. Any fair reading of evaluations, especially anonymous ones, takes into account this well-known gender bias, to avoid penalizing women for Type A traits that draw far less criticism, and even draw praise, in men.

The attacks on Sotomayor’s aggressiveness miss the mark for a more fundamental reason, though. “Judicial temperament” is critical for trial judges dealing with human drama — witnesses reliving traumatic events, emotionally charged evidence, and lawyers’ arguments that tug on jurors’ heartstrings.

But as any practicing lawyer can tell you, appellate litigation is a typically dry affair, vastly different from trials. In appeals, parties and witnesses do not testify, and the lawyer does not issue impassioned hand-over-heart pleas. The vast majority of an appellate lawyer’s work is the solitary researching and writing of lengthy briefs analyzing language from judicial precedents, statutes and regulations. The in-court portion of an appeal is just a short argument on the briefs’ legal analysis, usually just 10 to 15 minutes, to a panel of judges. When a lawyer gets roughed up by a panel of appellate judges, usually the criticism is an impersonal, geeky debate about what amounts to legal minutiae, however important the case is.

Especially at the Supreme Court, appellate litigators tend to be grizzled pros who have been through it all — professional appellate litigators at the Department of Justice, and prestige appellate litigators at private firms, like Roberts in the late 1980s to early 2000s, who served in both of those kinds of appellate litigation jobs.

“Judicial temperament” is a good thing, but it matters mainly for the over 99 percent of judgeships in the country that are not at the United States Supreme Court, which handles only appeals, primarily by seasoned vets of the appellate bar.

The debate on the Sotomayor nomination will be fascinating to watch. The criticisms of her rulings could yield a productive public debate about how judges should decide cases, how the Constitution should be interpreted, and other matters fundamental to our constitutional democracy.

On the other hand, we could get distracted by sideshows: criticism of a Democratic “affirmative action” nomination or criticism of “judicial temperament” based on the exact sort of anonymous complaints about “aggressiveness” that women commonly receive. In short, the nomination could be a wonderful exercise in democracy, or it could be a train wreck of political demagoguery.

About the Author: Scott A. Moss is an associate professor at the University of Colorado Law School.

This article originally appeared in Politico on May 27, 2009. Reprinted with permission by the author.

Photo: AP