JEFFREY BROWN: It was a controversial case and a divided court, but what does today’s ruling mean for the future? We discuss that now with Jonathan Adler, professor of law at Case Western Reserve University School of Law, and Mary Frances Berry, professor of history at the University of Pennsylvania and former chairwoman of the United States Commission on Civil Rights. She also serves on the board of the People for the American Way, a progressive advocacy organization here in Washington.
Professor Adler, we know it’s an important decision, but why? What does it change or clarify for employment law?
JONATHAN ADLER, Case Western Reserve University School of Law: Well, what the decision seeks to do is balance competing portions of Title VII of the Civil Rights Act. On the one hand, the law prohibits racially based disparate treatment of individuals, but on the other hand the law is conscious of the fact that there may be neutral business policies that could still have a disparate impact on particular racial groups.
And employers can feel that they’re caught in the middle, that on the one hand, if they have policies that produce racial disparities in the workforce, they could be liable for that, but it may be — the easiest way to correct for that might be to make race-based business decisions. And the court tried to strike a balance in this case between those two competing considerations.
JEFFREY BROWN: What do you see, Mary Frances Berry, in terms of impact?
MARY FRANCES BERRY, University of Pennsylvania: I don’t see competing considerations. For 38 years of court decisions — and there have been many of them — the courts have never found a competition between the two prongs of Title VII, disparate impact and disparate treatment, to get into the weeds of legal language. And there have been many…
JEFFREY BROWN: Which Marcia tried to clear up for us.
MARY FRANCES BERRY: Right, right. And there have been many — there have been in many cases.
But what has happened here is that the five in this particular court decision have set up a conflict which is, in my opinion, of their own making. And what they’ve come up with is a new standard that no one knew existed before that now jurisdictions have to meet, police departments, fire departments, employers have to meet, in order to try to do something to make sure that they’re not discriminating, given the context of what’s gone on in their departments, so it’s a new standard.
Raising questions for employers
JEFFREY BROWN: Well, so what kind of -- we heard Marcia Coyle saying that employers out there -- public and private -- will have to grapple with this. What kind of questions will they be asking?
MARY FRANCES BERRY: Here's what they will do, I think. Here's what they must do, until, of course, the court changes and we don't know when that is.
What they must do is they must look at places where there have been tests that do not put them in the position of claims of disparate treatment and, at the same time, are fair to the employees.
Both opinions, majority and dissent, pointed out that there are places in the country that use other kinds of tests and that they haven't had these problems. I think what they should do is reach out and do that.
It's going to be a lot harder to try to figure out what this new standard is. And it would have been easier if they had remanded the case for some facts and some findings, but they will need some guidance.
And I think the EEOC, the Equal Employment Opportunity Commission, and the Obama administration will have to give them some guidance in how they move gingerly in this area to reach their objectives.
JEFFREY BROWN: Professor Adler, what do you think about that? What will employers now, trying to balance these concerns, what kind of questions will they ask?
JONATHAN ADLER: Well, I think the key thing from this ruling is what employers can't do. And what employers can't do is make race-based decisions that adversely affect employees merely because there's a statistical disparity in, for example, the results of a promotion test, as was the case here.
What an employer would need to do before relying upon race and making its decision would be to make sure or to at least investigate whether or not there is some defect in the test, whether it, for example, fails to correlate with job performance or whether there are readily available alternatives, things that, in this case, New Haven did not do.
New Haven was pretty explicit that the basis for its decision was the racial disparity of the test results. And what the court said is that by itself is not enough to justify the use of race in this sort of employment context.
MARY FRANCES BERRY: Well, actually, what New Haven did was not to throw out the test because the whites made the scores that they did. They threw out the tests because the statistical disparity told them that something was wrong.
And they didn't know what was wrong, but they decided that, instead of promoting anyone, we'll just throw them out because the standard that was in existence at that time, everyone thought, would permit them to do that. Now we know that they're not permitted to do that; now we know that.
Effects on employees
JEFFREY BROWN: Well, are there -- I remember at the oral argument -- I'll start with you, Professor Adler -- at the oral argument, Justice Souter, I think it was, who said that the city found itself in a "damned if you do, damned if you don't" position. That would be, they'd be sued either way. Now, is it clearer for a city now about what they can do, whether they will be sued in either case?
JONATHAN ADLER: Well, I don't think it's clear that they would have been sued either way. They certainly heard the claim that they could be sued if they used the test results, but the test results were similar to prior tests the city had used. The requirements for the testing protocol were requirements that had been in place for something like 20 years. And there was certainly evidence that the city was as motivated as much by the potential political fallout this time around as anything else.
What a city needs to do or any employer needs to do in this sort of context is actually look more closely at the test than the city of New Haven did. They did not look or engage in a validation study or the sorts of things that we would, -- or that the court would require the city to do to avoid liability in a case like this. Instead, it simply threw the tests out because of the racial disparity.
JEFFREY BROWN: Are there implications, Mary Frances Berry, for employees and their ability to challenge cases?
MARY FRANCES BERRY: Well, employees can, as long as the five sit who decided this today, the Roberts court, with the five people sitting there in the majority, employers who are administered a test that is defective or that the city government thinks is defective or the employer thinks is defective and the employer hasn't gone through all these steps, and the employer wants to throw it out, they can claim that they ought to be promote anyway, and they can win on that basis, that I'm being treated in a disparate way.
So what we'd like as a better outcome is for the employers to be more vigilant about what they do so that they can foreclose the possibility that you have this conflict on the job between competing sets of employees, all of whom are working there, who are worried about getting promoted, because you end up with a test that you think is defective, and then there's a lawsuit, and they end up losing, and all these people have to go to work day after day together.
JEFFREY BROWN: Professor Adler, how do you see the implications for employees?
JONATHAN ADLER: Well, I think I agree with that. I mean, I think one of the distinctions that the majority makes in this case -- and it's similar to a distinction we've seen in some other race-related cases from this court -- is that there's a difference from an employer or an entity considering the racial implications of a decision before it's undertaken.
So, for example, designing a test up front in a way to try and minimize an adverse racial impact, that that is materially different from being motivated by race in throwing out the results or making decisions about specific employees after the test has been administered.
That's similar to something we saw from Justice Kennedy's opinion in a case involving school assignment a couple terms ago, where he said there's a difference between designing school districts in a way to enhance diversity in a classroom and that that's different from assigning individual students based on race.
And so certainly employers now -- and employees, as well -- can look forward to greater attention being paid to the sorts of policies that are adopted up front so as to avoid these sorts of problems down the road.
JEFFREY BROWN: Brief last word.
MARY FRANCES BERRY: If I might say, briefly, it's unfortunate this case was not remanded down to the lower courts so we could get these facts assessed, because we really don't even know what actually motivated the city to do what they did.
We know what they did, but we don't know what motivated them. And there are facts all over the place, as Justice Kennedy said in his opinion. So that's the unfortunate part of the decision.
But I think this can all be worked out, but everyone will just have to be more careful with administering tests and what kinds of tests they administer so that we can get better outcomes.
JEFFREY BROWN: All right, Mary Frances Berry, Jonathan Adler, thank you both very much.
MARY FRANCES BERRY: Thank you.