Wednesday, May 27, 2009

Ricci Was NOT Reverse Discrimination

One of the issues that is rising to the top as the issue that Sonia Sotomayor will have to address is a comment she made about how being a Latina woman will help her on the bench. She is being accused of being activist by some, racist by others because of this. The seminal case appears to be Ricci, a Title VII case in which she decided against white firefighters in a reverse discrimination suit in New Haven.

Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that's inadvertent as well as intentional. Hiring based on race alone is obviously illegal, but less obviously, so is hiring based on a process that has a disparate impact, or limits access by one group or another for reasons that have nothing to do with the job itself. In the Ricci case, the results of a firefighters promotional exam clearly showed a disparate impact - albeit unintentional - so the results had to be thrown out, resulting in the highest scoring candidate, Ricci, losing out on a promotional opportunity. He claimed reverse discrimination by the City of New Haven.

Employers are free to establish requirements for a job, as long as the requirements truly apply to the job. For example, regardless of the Americans With Disabilities Act (ADA), an airline can disqualify persons with some disabilities from consideration for positions as airline pilots - personally, I prefer the person flying the plane I'm on to be able to see - however, they cannot refuse to consider persons with vision limitations from positions in which sight is not an essential function of the job.

The law on disparate impact, then, is designed to uncover hidden discrimination whether intentional or not. An employer could say "No women need apply" which is intentional and obvious discrimination, and would likely only be tried by Rip Van Winkle. Another employer might institute a weightlifting test as a condition of employment as most women have less upper body strength than do most men, thus creating a condition in which women are less likely to meet the conditions for employment. If there is no legitimate reason for upper body strength for the position, the requirement creates a disparate impact and thus discriminates against a group (women) in a subtle manner. Any employment screening process that tends to screen out an entire group is very likely discriminatory and must be examined to ensure that it is not. Any qualifications must be reconsidered to ensure that they truly are essential to the job and that the screening process addresses only those tasks considered essential to the position.

Judge Sotomayor was - by all legal accounts (or at least, by the accounts of many legal minds whose opinions I greatly respect) - correct in her decision in the Ricci case. I am not an attorney so cannot comment on the validity of her opinion, however, I am - professionally - an expert on the ADA and analyzing job descriptions to determine essential and nonessential functions. Although discrimination by reason of disability is different than discrimination by reason of race, they are similar enough that many of the same arguments can be made, so I personally believe Judge Sotomayor's ruling will be upheld.

There are two ways an employer can discriminate according to Title VII. He or she can intentionally discriminate by making race a factor in employment decisions—choosing a black candidate over a white candidate because he is black. Frank Ricci claims the city intentionally discriminated when it threw out the exam results because most of the people who scored high were white. An employer can also discriminate by using a selection process that has a disparate impact—in other words, that screens out a particular group for no good reason.

So, back to the issue at hand.

As a Latina woman, Judge Sotomayor then is accused of being unable to serve on the Supreme Court because of this background. Such illustrious names as Pat Buchanan, Rush Limbaugh, and Stuart Taylor of the National Review who writes quite crudely of "identity politics" in reference to Sotomayor, beat the drum against her without actually bothering to review her record. Listening to Pat Buchanan debate Joan Walsh of Salon this morning on Hardball with Chris Matthews was illustrative of the extreme right. Typically, Pat Buchanan was unable to let Joan - a woman - complete her responses as he repeatedly interrupted her. Even Chris Matthews spent most of the segment pontificating with Pat as Joan tried repeatedly to get a word in and finally had to complete her point on her website.

Have you ever noticed that the chattering classes of the far right typically do not let liberals, and especially liberal women, actually finish a statement? Probably why we all write so well (grin).

Anyhoo. The right-wing consensus appears to be that regardless of the fact that we all bring our history along with us, and view the world through the lens of our own experiences, here is someone who says out loud that she will do just that. Because President Obama has said that this is exactly what he is looking for in a Supreme Court Judge, and because this is exactly what he has found in Sonia Sotomayor (not to mention more Federal Judicial experience ever entering the Supreme Court), the right-wing cannot tolerate her expressing something that they have said all along. The only difference? She's a woman, and she's Latina.

Here's Justice Alito at his confirmation hearings several years ago.

"I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up. And I know about their experiences and I didn't experience those things...

Because when a case comes before me involving, let's say, someone who is an immigrant - and we get an awful lot of immigration cases and naturalization cases - I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position. And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result. But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother." They were not citizens at one time, and they were people who came to this country.

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me. And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing - the barriers that it puts up to them. So those are some of the experiences that have shaped me as a person."

Hmmmm. Just insert Judge Sotomayor's name and you'd get a firestorm of angry (white) men shouting "empathy! empathy!" "Activism from the bench!" Yet at the time, because Judge Alito was Italian-American his diversity was valued.

Justice Alito stated quite clearly that his
experience being poor, his immigrant parents, his understanding (empathy?) of the urban, poor, immigrant experience and knowledge of persons with disability would inform his decisions.

Can we all spell hypocrisy?

Thanks for stopping by. Come back soon.

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