Ricci v. DeStefano: Can We Ignore The Obvious?


The myth of American exceptionalism is disproven with a vengeance when it comes to race. God didn’t pick North America as a preserve for the righteous. We are no city on a hill beckoning the world to do as we do. At the founding we enslaved people of color; today we spend other people’s money and then blame the banks for giving it to us. We are such stuff as human nature is made of, and that isn’t often pretty or even ennobling.

The color line rattles and roars. Consider the equal protection case to be argued before the United States Supreme Court on April 22, Ricci, et al. v. DeStefano, et al. It asks a fundamental question: When does, and should, race matter when it comes to promotional opportunity?

I need to put my cards on the table. I have won large verdicts for people on both sides of the color line. I once won a $3 million verdict for white and Hispanic firefighters in Hartford; a jury found race mattered when it came to explaining why they did not get a promotion. A few years later, I won $1.5 million for a black woman firefighter in New Haven. A jury concluded that race mattered there, too.

I suppose litigating both sides of the color line makes me a mercenary of sorts. I enjoy the privilege of skin when it comes to chosing sides. I was born with a white man’s lollipop in my mouth. It tastes good.

But I have good friends who tumbled from the womb dark in skin. They don’t get to pick sides. I don’t quite suffer survivor’s guilt as to these folks. But I am aware of what Nathan McCall once said of white people: Don’t trust ‘em when it comes to questions of race. We can pick and choose when to care, just as we can decide to adopt hang-gliding as a hobby. McCall is right.

But in the New Haven case, a group of white and Hispanic firefighters sweat blood to study for a promotional exam. The City of New Haven hired experts to make sure the exam was race neutral. No effort or expense was spared to assure that the test would not penalize folks on account of accidents of birth. The test was duly administered and scored. No one complained that the test was unfair.

Then the results were published. As it happened, the results were like a vanilla ice cream cone: all that white atop a brown base. The City refused to certify the list because of its disparate impact on people of color.

Something doesn’t make sense. A test is certified as race neutral. It is administered. No one complains. Then the results come in. Now complaints rain down aplenty. Does race only matter when it can be used as a club?

No one contends that the test was designed to beat down people of color. Indeed, the contrary is admitted. The test was engineered to make it neutral on questions of color. The only time race mattered, apparently, was when the results were in and those who scored poorly happened to be people of color.

A federal equal protection claim was filed on behalf of some white and Hispanic firefighters by Karen Torre. The District Court granted the City’s motion for summary judgment. An appeal was taken. The Second Circuit upheld the District Court. A petition for certiorari was filed and granted. Dozens of amicus curiae briefs have been filed. Next week the case will be argued.

I plan to be there to watch the arguments. My youngest son heads to medical school in July. He wanted to see an argument in the Supreme Court with me as a sort of last hurrah. We’ll see a Fourth Amendment case on Tuesday and the New Haven case on Wednesday.

But I am also going because my firm’s name is on the brief for the white and Hispanic firefighters. Attorney Torre is of counsel to my firm, and has been for some time. I am proud of her work even as I am uneasy about this volcanic case. The color line rumbles with tectonic rage. America sometimes has the look and feel of Bosnia.

I suppose the only way to make sure that race does not matter in employment decisions is to eliminate consideration of race altogether. Yet this is a convenient position for a white man to take. I’m torn just now by my knowledge of how much race still matters in determining the course of a person’s life chances in these United States.

The current law of the land puts cities in a lose-lose situation in public employment. The loser in any promotional case can almost always claim race. I say erase the line altogether in public employee cases. Otherwise we will simply continue to fuel endless litigation in which the reality of American life rubs hard against our ideals.

Reprinted courtest of the Connecticut Law Tribune.

Comments: (7)

  • Congratulations!
    Congratulations!
    Posted on June 29, 2009 at 8:33 am by Patrick
  • This case is obvious - for some reason no one want...
    This case is obvious - for some reason no one wants to admit it - the guys who passed the test got SCREWED by the city - period.
    Posted on June 22, 2009 at 10:37 pm by Anonymous
  • I have read the oral arguments and various amicus ...
    I have read the oral arguments and various amicus briefs and do not believe the issues have been parsed out in the discussion. It is not that we should not consider the potential for adverse impact on minority candidates in employment testing; the real question is when we should consider it. HR professionals are, or should be, fully aware of the different personnel selection testing methods and their potential for adverse impact. A first year student should know that a written test of specific knowledge and general abilities coupled with top-down selection will almost certainly result in adverse impact on blacks and hispanics. If diversity was a goal, they should have tested other constructs or used a different testing method. At any rate, they should have completed a validation study to support the use of the test to show it was job-related and consistent with a business necessity. To act surprised at the results after the test was administered is ridiculous. Once an organization chooses to use a test and opens a competitive examination, the candidates participate in good faith. To refuse to refer someone for promotion based on their race is a case of disparate treatment. The language is that race was a determining factor in an employment decision, which is a decision to refer someone for hire, transfer, promotion... Surely intentional discrimination is worse than using a test that is facially neutral but has an adverse impact on some groups. At any rate, malpractice is no excues for intentional discrimination.
    Posted on May 2, 2009 at 8:17 am by Anonymous
  • It is you, white man, who shouldn't trust Nathan M...
    It is you, white man, who shouldn't trust Nathan McCall in matters of race. The guy used to enjoy physically gang-assaulting random white kids ("white boys") for sport. In fact, he wrote in graphic detail of how much pleasure he took in one particular case kicking one randomly selected "white boy," who was down on the ground, repeatedly in the face.
    Posted on April 27, 2009 at 7:41 am by Sean Smith
  • Geez Norm, if no one was promoted then no one was ...
    Geez Norm, if no one was promoted then no one was harmed so what's the basis of this lawsuit?
    Sounds like lawyers can make a case for both sides of the color line on this issue IF harm has been done.
    Think you should lose on this case, sorry.
    Posted on April 20, 2009 at 1:29 pm by Anonymous
  • Mom graduated summa cum laude from Radcliffe. Her ...
    Mom graduated summa cum laude from Radcliffe. Her dad was a surgeon and retired as an admiral in the U.S. Navy. He was responsible for the evacuation of all the wounded at the battle of Okinawa. Dad was a young teen and the oldest of three when his father died. He went to work, supported his siblings and mom during the depression and paid his way through Harvard by waiting on tables where JFK dined. He became the publisher of a major, national magazine.
    Mom never wanted children and dad was preoccupied.
    When Betty (not her real name) came to live with us while mom recovered from a radical mastectomy, she put me to bed at night and sang Negro Spirituals as I drifted off. (No one ever put me to bed or read bedtime stories to me. And mom never touched me.) I hated to fall asleep while she sang and stroked my hair. I was in heaven. It sounded and felt like jesus or somebody like him was whispering in my ear. I slept soundly and without being afraid for the first time in my life. I was loved.
    Betty, if you are out there, somewhere, I love you. Things aren't right among god's children yet, but they are getting better. Remember Sweet Little Jesus Boy?
    They made you be born in a manger
    Sweet little holy child
    We didn't know who you were
    Didn't know you'd come to save us Lord
    To take our sins away
    Our eyes were blind, we could not see
    We didn't know who you were
    Long time ago
    You were born
    Born in a manger Lord
    Sweet little Jesus boy
    The world treats you mean Lord
    Treats me mean too
    But that's how things are down here
    We don't know who you are
    You have told us how
    We are trying
    Master you have shown us how
    Even when you were dying
    Just seems like we can't do right
    Look how we treated you
    But please Sir forgive us Lord
    We didn't know it was you
    Sweet little Jesus boy
    Born a long time ago
    Sweet little holy child
    We didn't know who you were
    we didn't know it was you. The world treat me mean Lord. Treat you mean too. But, that's how things is down here. Just seems like we can't do right, even when we tries.
    Posted on April 17, 2009 at 9:12 pm by Anonymous
  • Check out Peterman's Eye today and join in on the ...
    Check out Peterman's Eye today and join in on the discussion of the 4th Amendment...
    http://www.petermanseye.com/curiosities/history/643-the-fourth-of-ten
    Cheers!
    Posted on April 16, 2009 at 12:46 pm by Tina

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