If Frank Ricci Loses Reverse Discrimination, Blame Scalia

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Published on Tuesday, 16 June 2009

Written by Richard Thompson Ford, Slate Magazine

Conservative judges are the ones who have made discrimination suits hard to win.

Many conservatives have taken up the cause of Frank Ricci, a New Haven, Conn., firefighter who sued the city, claiming that officials discriminated against him when they rejected the results of a promotion exam, on which he did well, because all but one of the top scoring candidates were white. Ricci's claim is now before the Supreme Court. I've written about it once to explain why Ricci's argument is a threat to an important part of modern civil rights law, and I'm writing again now because a lot of people have suggested that Ricci has been treated unusually and unfairly in the courts. In fact, he's been treated just like any other plaintiff suing for employment discrimination. The anger and frustration of the top-scoring firefighters who expected promotions is understandable. But the outrage on the right is also ironic, because the reason that people who sue for employment discrimination -- like Frank Ricci -- rarely win their cases is that conservative judges have spent decades making sure they usually lose.

A reverse-discrimination lawsuit like Ricci's is, legally speaking, no different from a conventional discrimination lawsuit. The plaintiff bears the burden of proof on every factual issue. This was firmly established by Justice Antonin Scalia's 1993 majority opinion in a case called St. Mary's Honor Center v. Hicks, in which a black correctional officer, Melvin Hicks, sued for race discrimination after he was demoted and later fired from his job at a halfway house. The plaintiff must first establish some basic evidence that makes it plausible that he was a victim of discrimination -- he was fired or turned down for promotion, for example, for reasons that weren't obviously due to his own lack of performance or across-the-board staff reductions. Once a plaintiff makes this showing (as Ricci did), then the typical case proceeds by a process of elimination. If the plaintiff can prove that there was no good reason for his firing or non-promotion, the law will conclude that the decision must have been discriminatory.

But, as Justice Scalia made clear in Hicks, the employer doesn't have to prove that there was a good reason for its decision; it needs only to claim that there was one. New Haven claimed that it rejected the results of the promotion exam because to eliminate all black and all but one Hispanic firefighters from a chance at promotion, based on their scores, would have violated civil rights law, subjecting the city to a lawsuit by disappointed minority firefighters. (The city's argument is that the exam violated the part of the law that prohibits disparate impact discrimination, which in this context would prohibit the use of a test that screens out black firefighters and isn't more closely job-related than less discriminatory alternatives.) As the district court in Ricci pointed out, it's well-established that the desire to avoid such a disparate impact counts as a nondiscriminatory reason for an employer.

At this point, to keep his case alive, the plaintiff has to prove that the employer's reason is just a pretext -- in other words, it wasn't really the reason. It's not enough for the plaintiff to show that the employer was unwise, was unfair, or didn't have its facts straight. Basically, he has to prove that the employer just made up an alibi to hide a discriminatory motive. Accordingly, Ricci can't just show that the exam that New Haven threw out was written by top-notch experts in the field or even that it was the best possible exam to select firefighters for promotion. Ricci would have to show that the city officials didn't really believe -- even mistakenly -- that promotions based on the test results might violate the law.

Moreover, even if the plaintiff does disprove the employer's proffered alibi, the plaintiff will still lose if the judge or jury decides that the employer acted for a different nondiscriminatory reason from the one that was given. This, too, was established by -- you guessed it -- Justice Scalia in Hicks. And the employer doesn't even have to have a good reason! As long as the decision didn't involve discriminatory bias, the plaintiff loses. Melvin Hicks' supervisor claimed that Hicks was demoted for poor job performance. Hicks proved that this wasn't true and that the supervisor had a grudge against him. But he still lost because he couldn't prove that the grudge was race-related.

Frank Ricci argued that New Haven refused to certify the exam results because of political pressure to promote blacks from the city's large black community. There is some evidence to support this claim -- the exam results led to some political protest -- but during its deliberations, the city heard from experts who testified that the exam probably violated the law; so there is evidence to support New Haven's version of the story, too.

What if the city rejected the exam results to comply with civil rights law and to cater to political activists who were pressing for more black promotions? A plaintiff can win such a "mixed motives" case -- but that is a distinct legal claim, and Ricci didn't argue it at trial. As a result, Sotomayor and her colleagues on the appeals court couldn't consider what might have been Ricci's best argument. The Supreme Court shouldn't really, either, though in the end the justices can do pretty much whatever they want.

Even if Ricci could make a "mixed motives" argument, he probably wouldn't win with it. When an employer may have both legitimate and discriminatory reasons for a firing or a decision not to promote, the plaintiff must prove that it was the discriminatory rationale that actually caused the decision. In the case that established this rule, Price Waterhouse v. Hopkins, the plaintiff, Ann Hopkins, who was passed over for promotion, easily established that sexism was a problem in her large accounting firm and for her in particular. But according to Justice Sandra Day O'Connor, Hopkins won only because she could prove that the partners who made the decision to deny her a promotion were motivated by sexism. Ricci, for his part, would have to show that the New Haven officials who rejected the exam result did so, at least in part, because of political pressure.

Ricci also sued the city for violating his right to equal protection of the laws under the 14th Amendment to the Constitution. As in an employment discrimination claim, to prove a violation of equal protection the plaintiff must show that discriminatory motives caused the employer's decision. For instance, in the 1977 Supreme Court case Arlington Heights v. Metro Housing Development Corp., the city rejected a low-income housing development in a politically charged atmosphere where some opponents voiced concern about racial integration. But because there were also legitimate reasons for the city to reject the development and no hard proof that the city officials who rejected it did so because of race, the plaintiffs lost.

Of course, the Supreme Court may hold that New Haven's attempt to comply with civil rights law is itself race discrimination under federal law or under the Constitution. As I've argued, such a holding would threaten to burn down civil rights law by punishing employers for trying to avoid discrimination. But if the court does adopt this position, Ricci's case would be much stronger. The court would in effect treat New Haven's decision to throw out the test results as an affirmative-action policy, which New Haven would have to defend. Affirmative action is legal under employment discrimination law only if the employer can prove that it is designed to correct a "manifest imbalance" in the racial composition of its workforce. And race-based affirmative action is legal under the Constitution only if it is narrowly tailored to serve a compelling governmental interest. While there is detailed precedent for applying this standard in the context of government contracting and school admissions, it is not clear what it would require in the context of employment.

So far, however, no court has held that an employer's good-faith attempt to avert discrimination against one group constitutes discrimination against another. Under existing law, Frank Ricci is simply one of many of frustrated plaintiffs with plausible claims of discrimination that they can't prove. Judge Sonia Sotomayor, for her part, wasn't hostile to Ricci's claim in particular: In fact, she voted against the plaintiffs in 78 out of 96 other discrimination cases she heard as an appellate judge. That's a margin of 8-to-1. So if you're angry that Frank Ricci has had such a hard time in court so far, don't blame the judges like Sotomayor who applied the law. Blame the Supreme Court justices who made it.

Richard Thompson Ford teaches at Stanford Law School 

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