Supreme Court rules for white firefighters

updated 5:36 p.m. ET June 29, 2009

WASHINGTON - The Supreme Court declared Monday that white firefighters in Connecticut were unfairly denied promotion because of their race, ruling against minorities in a major reverse discrimination case that could affect bosses and workers nationwide. The justices threw out a decision that high court nominee Sonia Sotomayor had endorsed as an appeals court judge.

In its last session until September, the court's conservative majority prevailed in a 5-4 ruling that faulted New Haven and the courts that had upheld the city's discarding of results of an exam in which no African-Americans scored high enough to be promoted to lieutenant or captain.

In another high-profile case, the court failed to decide on a whether a scathing documentary about Hillary Rodham Clinton should be regulated as if it were a campaign ad.

In the firefighter case, the city said it acted to avoid a lawsuit from minorities, but Justice Anthony Kennedy said in his majority opinion that New Haven's action amounted to discrimination based on race against the white firefighters who were likely to be promoted.

"No individual should face workplace discrimination based on race," Kennedy said.

The ruling restricts, but does not eliminate, employers' ability to take diversity into account in employment decisions. But the ruling could make it harder for minorities to prove discrimination based solely on lopsided racial hiring or promotions.

Sotomayor and two appeals court colleagues had ruled the city did the right thing in throwing out the test, and the Supreme Court reversal gave critics fresh ammunition two weeks before her Senate confirmation hearing.

Conservatives said it showed her to be a judicial activist who lets her own feelings color her decisions. "This case will only raise more questions in the minds of the American people concerning Judge Sotomayor's commitment to treat each individual fairly and not as a member of a group," said Sen. Jeff Sessions, R-Ala.

On the other hand, the Obama administration and liberal allies said her stance in the case demonstrated her restraint and unwillingness to go beyond precedents established by her own 2nd U.S. Circuit Court of Appeals in New York.

The high court ruling shows "she doesn't legislate from the bench," said presidential spokesman Robert Gibbs. "The Supreme Court clearly had a new interpretation of Title VII of the Civil Rights Act."

Qualified for promotions
Coincidentally, the justices may have given a boost to calls for quick action on her nomination.

The court said it would return Sept. 9 to hear a second round of arguments in the Clinton movie case, and with Justice David Souter retiring there would be only eight justices unless Sotomayor has been confirmed by then.

In Monday's ruling, Kennedy said, "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." He was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Video   SCOTUS rules against minorities in reverse-bias case June 29: The Supreme Court's ruling sets new rules for the nation's employers on how to achieve racial diversity without violating the rights of whites. NBC's Pete Williams reports. Nightly News

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract the court's empathy. But they had no vested right to promotion and no person has received a promotion in preference to them."

Justices Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday. Speaking dismissively of the majority opinion, she predicted the court's ruling "will not have staying power."

Labor and employment lawyers suggested that companies that act to encourage and preserve racial, gender and age diversity would need to be very careful to avoid reverse discrimination lawsuits.

For example, said employment lawyer Mark Dichter, an employer might be sued under Monday's ruling for scrapping an unannounced round of layoffs because women, racial minorities or older workers would be disproportionately affected and substituting a different analysis that affected other workers.

"If those facts came out, it would certainly support a reverse discrimination claim," said Dichter, chairman of the Morgan, Lewis law firm's labor and employment division in Philadelphia.

Recipe for success?
In New Haven, Mayor John DeStefano Jr. criticized the court's decision. The court's "interpretation of anti-discrimination law has for some time been showing increasing distance from reasonable and time-tested efforts," he said.

However, lead plaintiff Frank Ricci, speaking from the steps of New Haven's city hall, said the ruling showed that "if you work hard, you can succeed in America."

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty-six firefighters passed the exams, including 41 whites, nine blacks and six Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

'Starkly disparate results'
The white firefighters said the decision violated the same law's prohibition on intentional discrimination. The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.

"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."

But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.

"Today's decision sets these paired directives at odds," she said.

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