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Monday Overnight Thread – 03/27/2023 [Roger Ball]
Geronimo Cafe Quick Hits Update: Transgender Killer Confirmed; Left Behind a "Manifesto" Are You Ready for the "Trans Day of Vengeance"? Update: Joe Biden Makes Ice Cream Jokes Fired Woke "Gay Latina" Victoria Alonso Threatens Legal Action Against Disney; Disney Says She Committed a Clear Breach of Contract The Criminal Government Jails Another Innocent Jen Psaki on Her New MSNBC Show: Ron DeSantis Is a Hypocrite Because... He Wants to Defend US Borders But not Urkainian Borders Women's Rights Activist Posie Parker Physically Assaulted by Trans Extremists at a Speech in New Zealand Ripley's Hero: Adam Kinzinger Was On Board of Advisors to Alleged Pro-Ukraine Group That Scammed People Out of Millions of Dollars and Is Now Under Federal Investigation THE MORNING RANT: Economic Nationalism and the USA’s Historical Aversion to Unrestrained Free Trade Absent Friends
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June 29, 2009
Supreme Court Overturns J. Sotomayor in Ricci v. DeStefanoThe Court holds 5-4 that New Haven's decision to discard the test results because too few non-Hispanic minorities passed violated the Civil Rights Act. Opinion is here (PDF). Kennedy wrote the majority opinion, joined by the Chief Justice and Justices Scalia, Thomas, and Alito. The liberal four dissented in an opinion drafted by Justice Ginsburg. Reading it now; updates to come. More: Alright. As with the Section 5 Voting Rights Act case last week, the Court avoids the constitutional issues and attempts to resolve the dispute according to the existing statutory scheme. In this case that means resolving the conflict between two sections of Title VII of the Civil Rights Act. Under Title VII, New Haven was prohibited from intentional acts of employment discrimination based on race. This is called disparate treatment. Title VII also prohibits policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities. This is called disparate impact. Disparate impact is often demonstrated with statistical analyses. The facts of this case set the two types of prohibited conduct against each other. New Haven could either intentionally discriminate against the successful white and Hispanic candidates or its firefighter promotion policy (based on the test results) would have a disproportinately adverse impact on black candidates. And more: Prior to this decision some lower courts--including the district court in his case--believed that actions taken to avoid disparate impact simply cannot be considered disparate treatment. But now the Court says: 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 when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of anindividual’s race. Ultimately, the Court holds (borrowing from equal protection cases) that before an employer can engage in intentional discrimination to avoid disparate impact, the employer must have a "strong basis in evidence" to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. That determination rests on the facts of the particular case. In this case, the majority determined that New Haven had no strong basis in evidence to believe it would be subject to liability (not just litigation, but actual liability) had it certified the firefighter exam results. The test was objective, and taken for a job-related purpose (obviously). Fear of litigation does not justify disparate treatment. Last Update: Justices Scalia and Alito have interesting concurring opinions (especially Alito), but its stuff we've all heard before. The interesting thing--to me, anyway--is just how far apart the majority and the minority are. The majority have no problem believing that when Congress said "no hiring decisions based on race" they really meant it. The minority justices are ready to forgive hiring decisions based on race, so long as the right race comes out ahead: Here's Justice Kennedy warning of what the Court absolutely must avoid: A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.” Watson, 487 U. S., at 992 (plurality opinion). Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance. And here's Justice Ginsburg on her preferred outcome: By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions. "Command presence and other qualities" is Justice Ginsburg's euphemism for candidates with the right race. She complains that the Court does not remand for further fact-finding, but she can hardly complain when both the district court and the Second Circuit bolstered their flawed conclusions by holding that the facts were not in dispute. | Recent Comments
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Monday Overnight Thread – 03/27/2023 [Roger Ball]
Geronimo Cafe Quick Hits Update: Transgender Killer Confirmed; Left Behind a "Manifesto" Are You Ready for the "Trans Day of Vengeance"? Update: Joe Biden Makes Ice Cream Jokes Fired Woke "Gay Latina" Victoria Alonso Threatens Legal Action Against Disney; Disney Says She Committed a Clear Breach of Contract The Criminal Government Jails Another Innocent Jen Psaki on Her New MSNBC Show: Ron DeSantis Is a Hypocrite Because... He Wants to Defend US Borders But not Urkainian Borders Women's Rights Activist Posie Parker Physically Assaulted by Trans Extremists at a Speech in New Zealand Ripley's Hero: Adam Kinzinger Was On Board of Advisors to Alleged Pro-Ukraine Group That Scammed People Out of Millions of Dollars and Is Now Under Federal Investigation THE MORNING RANT: Economic Nationalism and the USA’s Historical Aversion to Unrestrained Free Trade Search
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