What is Reverse Discrimination in the Workplace and Could it be Legal? Supreme Court to Tackle Issue

A fire department in New Haven, Connecticut, has had no job promotions in a long, long time and it has nothing to do with the recession or tight government budgets, the New York Times reports. No, promotions at the New Haven Fire Department have been on hold since 2003 because that was when the test used for promotions was thrown out by the city "because none of the 19 African-American firefighters who took it qualified for promotion." This, in turn, led Frank Ricci (who had done well on the test) and 17 other white firefighters to sue the city claiming racial discrimination.

Claims made by a member of a majority group alleging racial discrimination in favor of a member of a minority group are called "reverse discrimination" race claims (the claims are usually thought to work the other way around). The Supreme Court is scheduled to hear arguments on April 22 in Ricci's case, which he lost in the lower courts. However, the good news for Ricci is that the Court has lately tended to disfavor policies making decisions based on race. This has been particularly noticeable in the area of education. Last year, the Supreme Court limited the use of race in assigning public school enrollment.

In the context of employment and race, this is the first case with a direct take on the issue and it may force the Court to traipse through a veritable minefield of federal civil rights laws that can be interpreted in different ways. For example, the Times described the city's rationale as follows:

"The city says it was merely trying to comply with a federal law that views job requirements like promotional tests with great suspicion when they disproportionately disfavor minority applicants.

'The fact of the matter is it's a flawed test,' said Victor A. Bolden, the city's acting corporation counsel."

So what does the law say? The federal law prohibiting disciminatory use of test scores says:

"It shall be an unlawful employment practice for [an employer], in connection with the selection or referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, [etc.]"

For those that (understandably) skipped reading that, the bottom line is it doesn't say anything specifically about entirely tossing out undesirable tests/results. But complicating the matter, as noted above is that the city's refusal to implement the test results was due to its fear of being sued under a different section within the same law (because the test results had a disproportionate racial impact).

The challenge posed by these issues and the relationships between the various laws probably can't be overstated. But judging on past decisions, it seems quite possible, if not altogether likely, that the Court might not draw a clear line one way or the other. We'll keep you posted, and below are more links to information and resources on the subject.

• N.Y. Times: Justices to Hear White Firefighters' Bias Claims
• Circuit Court Panel's Opinion (2nd Circuit Court of Appeals)
• Docket Sheet for the Case (FindLaw's Supreme Court Center)
• Circuit Court Order (Denying Rehearing En Banc) (FindLaw)
• Filing a Discrimination Charge with the EEOC (FindLaw)
• Supreme Court Ruling Upholding Affirmative Action in School (FindLaw)
• Federal Law on Unlawful Employment Practices (FindLaw)
• Discrimination Overview and Links (provided by Ogg, Cordes, Murphy & Ignelzi, LLP)
• Discrimination in Employment (FindLaw)