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

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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.   

 

The Ricci decision now closes the circle of discrimination jurisprudence, achieving a kind of mobius strip of forbidden acts.  You can't discriminate; you can't reverse discriminate, you must strive towards choices that are pure and neutral.  If Aldous Huxley were here, he would require HR officials to take an extra dose of soma to achieve a state of complete indifference.  You can already see the elaborate protocols set up to avoid "subjective" criteria--effectively making human judgment illegal.  Courts will take out their magnifying glass to enforce a lowest common denominator approach to employment disputes, scrutinizing supervisors to make sure they can't favor anyone. 

 

Is this really how we want courts to spend their time?  Is this really how we want supervisors to make decisions?  Does this enhance the workplace culture, or corrode it?    

Justice Scalia in his concurring opinion suggests that there is an unavoidable conflict between the Equal Protection Clause of the Constitution (the idea of the level playing field) and Title VII's suggestion that employers can be liable for "disparate impact" (when minorities don't have the highest test scores).  Professor Richard Epstein goes further and calls for repeal of Title VII altogether --pointing out the paradox that it prohibits affirmative action (see here).  

 

I have a different proposal --pull back Title VII to its original goal.  Keep the basic prohibition against intentional discrimination ("disparate treatment"), but limit the protection to groups that traditionally suffered discrimination in that workplace, and, with limited exceptions, require group-wide claims.  Federal courts should not be called upon to adjudicate individual workplace disputes.  That's a quagmire, hip-deep in emotion without any lifeline to dispositive facts.  Ask any federal judge. 

 

In my formulation, there would be no legal need to promote firefighters using written tests, and no prohibition on promoting minority firefighters.  The statute is there not to create a happy world of fairness-for-everyone, but to avoid slipping back into the unhappy world of racial discrimination.  There's a difference.  The law isn't there to protect white guys.  Nor is the law intended to compel affirmative action --what it prohibits is intentional discrimination.  Now, there would still be pressure for employers, like the New Haven Fire Department, which have an extremely non-diverse workforce.  The city might feel a little nervous about how it proves absence of discriminatory intent.  That's not a bad thing, in my view.  Leaning over backwards for diversity is a productive instinct.  Feeling forced to make choices is not. 

 

Pressing law down onto daily choices is a formula not for fairness, but for bitterness.  What the competing opinions in Ricci demonstrate is how discrimination law has evolved into a perfect formula for simmering resentment.  Why did he get the promotion and not me?  It must be racism.  Or...He must be playing the race card....  The only solution I can see is for law to get out of the business of trying to adjudicate fairness in individual choices, and to go back to guarding against patterns of intentional discrimination. 

 

By the way, I don't think Ricci has anything to do with Judge Sotomayor's fitness as a nominee.  As the Supreme Court's opinions make clear, the law in this area is internally contradictory.  Judge Sotomayor's ruling is certainly not "activist" --the decision deferred to the choices of officials who are accountable politically.  She and her fellow judges can be criticized, I suppose, for not writing an opinion explaining their decision to affirm the trial court.  But what were they supposed to say?  The Supreme Court has now given legal priority to the need to avoid "reverse discrimination," but that conclusion was hardly compelled by prior jurisprudence.  There's a lesson to be learned from the Ricci controversy, however.  Law has limits and can't meddle in daily choices without making everyone unhappy. 

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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 (www.commongood.org), 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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