Workplace Discrimination Case Decision

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The U.S. Supreme Court ruled that the City of New Haven, Connecticut acted wrongly by tossing out a promotion exam given by the local fire department after minority firefighters scored poorly. Attorney David Selden talks about how this case could spark debate when it comes to employment law and hiring practices.

Jose Cardenas:
Joining me tonight to talk about this decision and what could it mean for employment hiring practices is David Seldon. Thank you for joining us.

David Seldon:
My pleasure.

Jose Cardenas:
This decision has had particular focus on it in part because Supreme Court nominee Sonia Sotomayor participated in a decision at the court of appeals level. But how big of a decision is it actually new hear conflicting opinions as to what kind of impact it's going to have.

David Seldon:
I think a decision is more symbolic than will actually have an impact on a large number of cases. It's a pretty unusual fact pattern. It really demonstrates how employers have to walk a tightrope between the different tensions in the discrimination laws as well as other laws. Many employers in order to avoid discrimination claims and claims of favoritism have gone through tests for hiring or for promotions. And then in this case, the tests -- test results came out that not a single African-American firefighter qualified for promotion. So the city of New Haven decided to take another look in deciding, no, we're not going to use those results because we fear we'll get sued for discrimination because the test results end up being so imbalanced.

Jose Cardenas:
And they had been sued for discrimination in the past.

David Seldon:
Correct. The city attorney said we think we're going to get sued if this happens, and it's going to be a problem for us. So the decision the city made, after a lot of deliberation, was, let's look for another way to make promotion decisions. And then the white firefighters who then did not get the promotions who had scored highest on the tests, turned around and sued, and now the Supreme Court has sided with them. And the real difference is that the Supreme Court said that if the employer is going too not use the test result and make a decision to -- because they fear discrimination based on imbalanced test results, the employer has to conclude that the minority firefighters who would have sued them would have had a strong basis in evidence to win their case.

Jose Cardenas:
What does that mean in plain English?

David Seldon:
In plain English it means the employer would have to say we adopted this test, but look over the test results, we don't think this criteria or this test really is job related and is not good measure of who should qualify for promotion.

Jose Cardenas:
That essentially what the city of New Haven did here?

David Seldon:
That's what they did. Except that the test results, the test they used was one that was developed by a professional consulting firm, the city spent $100,000 to pay them to develop the test. They had done same thing for other fire departments. They got input from the minority community on what kinds of questions should be on the test. So it was a good test, it just ended up not having balance in the results, and the result of this is that it shows I think a trend on at least the majority, and it was a 5-4 very tightly narrowly split Supreme Court resistance or hostility towards affirmative action. And that employers in walking this tightrope between facing discrimination lawsuits from a minority community or reverse discrimination lawsuits from white male firefighters, it really puts employers in a tight spot to try to avoid liability if they lean one way or the other walking this tightrope.

Jose Cardenas:
Now, people have expressed concerns that this may be the beginning of an attack on affirmative action. Yet the court did not cite its earlier affirmative action decisions, most recently the ones in the law school admissions cases.

David Seldon:
Correct. The court did not reach those issues, but the majority planted a few hints that they -- although not reaching these issues, they planted some seeds thinking that there may be an equal protection challenge.

Jose Cardenas:
Justice Scalia was explicit about that.

David Seldon:
That's correct. And the ironic thing is Justice Ginsburg, looking ahead to the confirmation hearings for Judge Sotomayor, needled the conservative majority of the court by pointing out first that its decision was an active decision, overturning what the local government decided to do, and also poking fun that the majority decision made its decision based in part on sympathy to the white firefighters who had spent time studying the test and taking the test and invested that effort and of course I think she did that because of the politically charged atmosphere of the confirmation hearings where of course President Obama said that he was looking for empathy as one of his criteria, and that's been a mode of attack on Judge Sotomayor, so here Justice Ginsburg was saying that's what the conservative majority did.

Jose Cardenas:
And touching briefly on the Sotomayor aspects, she was one of three judges who issued a procurium of affirmance.

David Seldon:
It was not an opinion by her. What she was part after three-judge panel that unanimously said that the trial court got it right and we're going to affirm it in a one paragraph decision and it followed an earlier decision of her same court. So she was following precedent there that was not really an opinion of hers that was reversed, but it certainly is being -- is politically hyper charged because of the upcoming confirmation hearings.

Jose Cardenas:
And I understand another unusual aspect of the court's decision was instead of this case effectively being sent back down for further consideration, they decided the case for the firefighters.

David Seldon:
Even though three of the five justices in the majority said that there should be a remand for the trial court to make the factual findings, they signed the opinion that really took the role of the trial court and usurped it and the Supreme Court made that decision. Usually when a Supreme Court announce as new legal standard, it will sent case back to the trial court and say, OK, now go apply this standard and do your fact finding, have a trial, and things of that nature. In this case the court said, here's a new legal standard that employers have to follow, and by the way, in this case this is the way the decision should come out. Even though there was never a trial.

Jose Cardenas:
Switching topics on you, the last area here some other significant developments in the employment area this one having to do with Wednesday's announcement by the immigrations and custom enforcement investigation.

David Seldon:
Correct. The federal immigration authorities on Wednesday announced more than 650 new investigations of employers. One day they've launched more new investigations than did the federal government in all of last year. And that really is like the decision by the Supreme Court in this New Haven case, it shows how employers have to walk the tightrope between not wanting to discriminate against minorities based on national origins, yet also not wanting to be accused of violating the immigration laws. It's another tightrope employers have to walk because of the conflicting pressures of different federal laws.

Jose Cardenas:
So what does this mean about the Obama administration's position on immigration enforcement?

David Seldon:
I think it shows that the administration is trying to place confidence that the federal government is going to enforce the employer sanctions parts of immigration law and hopefully lay that -- that part of the immigration enforcement being taken seriously, stepping up border enforcement, hopefully that will lead towards the path of getting comprehensive immigration reforms so they can solve the immigration issue.

Jose Cardenas:
I guess we'll see that unfolding over the coming months. Thanks for joining us on "Horizonte."

David Seldon:
Thank you.

David Selden:Attorney;

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