The Limits of Law: Ricci and the Elusive Quest for Workplace Fairness


The Supreme Court's Ricci decision --holding that New Haven engaged in unlawful "reverse discrimination" by discarding test results for fire department promotions --exposes an unavoidable conflict at the heart of Title VII of the Civil Rights Law.  It's basically impossible to encourage affirmative action (to avoid "disparate impact") without discriminating against other workers. 


Ricci will probably prompt more litigation, as white males challenge perceived efforts at affirmative action.  Rather than descend further into a downward spiral of accusations of discrimination and reverse discrimination, perhaps it's time for a fundamental rethinking of how to enforce anti-discrimination laws.


There's a flaw in the premise of these cases: law can't enforce fairness in daily relations.  Law can guard against overt patterns of discrimination, but intervening in specific employment decisions creates a hopeless morass.  There's no objective test, no proof in a court, that can sort out what's fair and what's not.  The goal of the civil rights laws was to avoid racism and other forms of systematic unfairness --not to try to achieve a utopia in which every employment decision is extruded through the judicial system to prove some ultimate fairness.  Fair to whom?  Employment decisions always involve a winner and a loser. 


The difficulty of proving fairness is evidenced by the majority and dissenting opinions in Ricci (see here).


The majority opinion (by Justice Kennedy) emphasized the fairness of a level playing field.  What stuck in the craw was that New Haven officials devised the promotion test as an elaborate effort to avoid charges of discrimination, suggesting that the promotions would be based on objective merit.  When the test results didn't turn out as hoped, the officials just discarded them.  Heads I win, tails you lose.   


The dissent (by Justice Ginsberg) emphasized the overwhelming patterns of nondiversity, reaching back generations.  Justice Ginsberg questioned the whole idea of using a written test as the threshold for promotion --leadership skills are hardly revealed in test scores.  


Both sides are right.  Of course it's unfair to go to great efforts to design a neutral test, and then throw out the results.  But Justice Ginsberg is also correct that no test can accurately evaluate intangible qualities like leadership, or the potential benefits of a minority supervisor.  If New Haven officials feel a minority supervisor would be best, why aren't they free to make that decision?


Almost forgotten in the spat over fairness is the main goal of employment decisions in the first place --to do what's best for the organization.  That always involves the exercise of judgment by the person with responsibility.  The hard question, in a free society with a bad history of discrimination, is how to restore the freedom to use judgment without opening the door to past bad behavior. 


Discrimination law has certainly come a long way since the heady days when it knocked down historic barriers of racial and gender segregation.  Now almost any disgruntled employee can claim discrimination --even before Ricci, an estimated 70% of workers were in some "protected category."  Federal courts are clogged with employment lawsuits--about 10% of the federal civil docket.  Most are without merit, but the claimants don't have the objectivity to discern their own shortcomings, and certainly not to discern the needs of the organization or the skills of others.  The overhang of possible claims has chilled open interaction in the workplace, and acts as a barrier to minority employment.   

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Philip K. Howard is a lawyer, author and chair of Common Good. He is the author, most recently, of Life Without Lawyers: Restoring Responsibility in America, and wrote the introduction to Al Gore's Common Sense Government. More

Philip K. Howard is the author of Life Without Lawyers(Norton 2009), as well as the best-seller The Death of Common Sense(Random House, 1995) and The Collapse of the Common Good(Ballantine, 2002), and he is a periodic contributor to the op-ed pages of The New York Times, The Wall Street Journal, and The Washington Post. He advises leaders of both parties on legal and regulatory reform issues, and wrote the introduction to Vice President Al Gore's book Common Sense Government. A practicing lawyer, Howard is a partner in the law firm Covington & Burling LLP. In 2002, Howard founded Common Good (, organized to restore common sense to American public life. The Advisory Board of Common Good is composed of leaders from a broad cross-section of American political thought including, among others, former Senators Howard Baker, Bill Bradley, George McGovern, and Alan Simpson. Howard is a civic leader in New York and is Chair-Emeritus of the Municipal Art Society, a leading civic group that spearheaded initiatives to preserve Grand Central Terminal.
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