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High Court’s Bias Ruling May Reshape Employer Policies

The Supreme Court on Monday ruled that a group of white firefighters was unfairly denied promotions because of their race. Analysts examine the impact on future labor policy.

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  • 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.

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