Labor Law and Literature: The Classic Tensions Reflected in Ricci v. DeStefano and the Effects of the Decision on Employer Responsibility

By Christopher Sulfaro (Summer Associate)

A nation’s law and literature emanate from the moral and cultural pulse of its people. But despite springing from similar roots, law and literature grow along different paths. Law serves to strictly codify the most beneficial, utilitarian morals and social values held by a people; thereby creating a system of rules that establishes and protects those values. In contrast, literature often serves to illuminate our best and worst values, permanently burning them into our consciousness. Occasionally these two disciplines cross paths, as literature can highlight the same moral and social tensions arising in a legal conflict. Shakespeare’s The Merchant of Venice and Richard Wright’s Native Son provide classic and modern literary illustrations of the tensions facing the Supreme Court in the recent case of Ricci v. DeStefano.

Ricci v. DeStefano

On June 29, 2009 the Supreme Court decided Ricci v. DeStefano [2009 WL 1835138 (U.S., 2009)]. in a 5-4 opinion written by Justice Kennedy. It is a case rife with tensions that have been the center of both classic and modern literature. In an employment discrimination dispute between the City of New Haven and eighteen of its firefighters, the City discarded the scores of an officer-promotion examination because of significant racial disparity reflected in the score results. One Hispanic and seventeen white firefighters, who likely would have been promoted based on the scores, sued the City for racial discrimination and disparate-treatment under Title VII of the Civil Rights Act of 1964. The Court held the City’s actions impermissible under Title VII.

In 2003, the New Haven Fire Department administered examinations for promotion to the rank of lieutenant or captain. Over one hundred firefighters took the exam, which required them to obtain voluminous, expensive materials and study for months. They faced a great deal of pressure because promotional exams were rare and the results would determine which firefighters gained promotions for the following two years. A twenty-year-old contract between the City and the firefighters’ union specified that the exams would be comprised of a written portion, weighted at 60%, and an oral portion, weighted at 40% of the total score. The City hired a professional company to develop and administer the exams. After studying the intricacies of the New Haven Fire Department, the company attempted to design an exam that was fair and specific to that particular fire department.

Of the 118 candidates who completed the exams, 68 were white, 27 were black, and 23 were Hispanic. Of those that passed the exams, 41 were white, 9 were black, and 6 were Hispanic. Of those immediately eligible for promotion based on vacancies and procedure, 17 were white and 2 were Hispanic. Based on these results, the Fire Department feared that the exam may have discriminated against minority candidates. They took these concerns to the City which resulted in a lengthy investigation into the exam’s inherent fairness. Despite not knowing the test results, many of the firefighters who took the exam – minorities included – described it as being very fair and comprised of questions clearly needed to the study materials. Other firefighters described the exam as outdated and more relevant to the city of New York than New Haven. Experts also had mixed testimony with some declaring nothing wrong with the test and others believing it to be strongly adverse to minorities.

After weighing these mixed results, the City feared that the exam violated the disparate-impact provision of Title VII. In an attempt to comply with Title VII and avoid potential liability, the City decided to scrap the exam scores. The firefighters who had passed – and who were therefore denied an opportunity for promotion – sued the City. They argued that the City violated the disparate-treatment provision of Title VII by throwing the exam because it yielded predominantly white candidates. The City countered that they could not be held liable under Title VII’s disparate-treatment provision for their attempted compliance with Title VII’s disparate-impact provision.

The pivotal issue before the Court considered the apparent conflict between Title VII’s disparate-treatment and disparate-impact provisions. Justice Kennedy recognized: “Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them" ( *14). The firefighters highlighted this conflict by calling for a rule that forbids an employer from using a “disparate-impact compliance” defense in a disparate-treatment suit unless the employer is positive that it would also be liable in a disparate-impact suit. The Court declined and stated, “Petitioners would have us hold that, under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination. That assertion, however, ignores the fact that, by codifying the disparate-impact provision in 1991, Congress has expressly prohibited both kinds of discrimination. We must interpret the statute to give effect to both provisions wherever possible" ( *15). The Court was also concerned with broader policy implications for employers. Kennedy noted, “Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill" (Id.).

In the end, the Court still found the City’s actions unacceptable. Kennedy stated, “Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race based action at the slightest hint of disparate impact. A minimal standard might encourage employers to discard the results of lawful and beneficial promotional examinations . . . . That would amount to a de facto quota system . . . .” (Id.).

Although the strict scrutiny test of “strong basis in evidence” is traditionally reserved for remedial race-discrimination cases, the Court found this standard applicable here. Kennedy explained, “Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme . . . .” (Id. at *16). The Court then held that the City had violated Title VII’s disparate-treatment provision.

The Ricci Majority’s View of Disparate-Treatment as Illustrated by The Merchant of Venice

Although the Court attempted to draw a balance between disparate-treatment and disparate-impact, that it may have actually attributed more weight in the conflict to disparate-treatment. By requiring such ________ standard of evidence in order to justify disparate-treatment for the sake of avoiding disparate-impact, if the Court may have implied that it found disparate-treatment to be the greater of two evils. Kennedy noted: “Disparate treatment cases present the most easily understood type of discrimination,” and occur where an employer has ‘treated [a] particular person less favorably than others because of’ a protected trait" ( *13; internal citations omitted). Disparate-treatment is certainly the more visible of the two types of discrimination and is even the subject of one of Shakespeare’s The Merchant of Venice.

Shakespeare’s classic play centers on a contract between Antonio, a Venetian merchant, and Shylock, a Jewish moneylender. Antonio’s best friend, Bassanio, is in dire need of a loan. Antonio acts as a guarantor to enable Bassanio to secure a loan from Shylock. Shylock has been marginalized as an outsider in the Christian community of Venice. Antonio, in particular, has been a frequent tormentor. Shylock agrees to lend Bassanio the money only if it is secured by a pound of Antonio’s flesh. Antonio agrees. Soon after the agreement, Antonio’s ships, has represented his fortune, are lost at sea, along with Bassanio’s hopes of paying back his loan. Shylock, having a valid legal claim albeit a barbaric one takes Antonio to court to obtain his bond but obtained, no relief. Antonio’s lover, Portia, disguises herself as an impartial law clerk and masterfully turns Shylock’s own strategy against him. She acknowledges the validity of his legal claim however, under a strict interpretation of the contract it does not reference the shedding of Antonio’s blood. Shylock is entitled to his pound of flesh, but if he sheds the Christian blood of Antonio, he will be arrested.

The disparate-treatment of Shylock is made dramatically apparent in The Merchant of Venice.  Shylock finds himself in a culture that despises both his heritage and his profession. He reflects on his treatment at the hands of Antonio:

He hath disgraced me and
hindered me half a million, laughed at my losses,
mocked at my gains, scorned my nation, thwarted
my bargains, cooled my friends, heated mine
enemies – and what’s his reason? I am a Jew. Hath not
a Jew eyes? Hath not a Jew hands, organs, dimensions,
senses, affections, passions? Fed with the
same food, hurt with the same weapons, subject to
the same diseases, healed by the same means,
warmed and cooled by the same winter and summer
as a Christian is? If you prick us, do we not
bleed? If you tickle us, do we not laugh? If you
poison us, do we not die?

(Wlliam Shakespeare, The Merchant of Venice, Act III, Scene 1, lines 53-65)

Although barbaric, Shylock’s claim against Antonio is valid and legal. However, when he seeks justice in court, he is faced with a biased judge who manipulates the law against him. Rather than his bond, he is left with shame.

The Ricci Dissent’s View of Disparate Impact as Illustrated by Native Son

In literature and in life, the dangers of disparate-impact are more subtle than those of disparate-treatment. Richard Wright’s Native Son exemplifies this idea. Written in 1940, the novel predates Title VII by twenty-four years, but it deftly illuminates the tensions and difficult quandaries that Title VII sought to address. The novel tells the story of Bigger Thomas, a black teenager living in Chicago in the 1930’s. He lives a life of fear and frustration as the white population subjugates him to poverty. Despite his rebellious nature, he is given an opportunity to work as a chauffer for the Daltons, wealthy white family. One night, Bigger is forced to drive the Daltons’ rebellious young daughter, Mary. She becomes intoxicated and Bigger helps carry her to her room. While in Mary’s room, Bigger grows extremely frightened that he will be caught and misunderstood. Mary’s drunken shouts arouse the suspicion of her blind mother, who comes to the room to investigate. In an effort to quiet Mary and remain undetected, Bigger accidentally suffocates and kills her. To cover up the accident, he embarks upon a spree of heinous violent crimes. He is eventually captured and brought to trial where a Jewish lawyer named Max represents him.

Recognizing both the heinous nature of Bigger’s crimes and the futility of efforts to secure a fair trial with an angry mob surrounding the courthouse, Max focuses his energy on preventing the imposition of the death penalty. In his plea for Bigger’s life, Max places Bigger’s life experiences in the context of an unfair culture fraught in widespread disparate-treatment. He states,

Let us banish from our minds the thought that this is an unfortunate victim of injustice. The very concept of injustice rests upon equal claims, and this boy here today makes no claim upon you . . . . Rather, I plead with you to see a mode of life in our midst, a mode of life stunted and distorted, but possessing its own laws and claims . . . human life draped in a form and guise alien to ours, but springing from a soil sowed and plowed by all our hands. I ask you to recognize the laws and processes flowing from such a condition, understand them, seek to change them (Richard Wright, Native Son, p. 388, Harper Perennial Modern Classics, 2005).

Mirroring the massive difficulties facing real government attempts to remedy past discrimination, Max says, “Your honor, the most pathetic aspect of this case is that a young white woman . . . tried to undo as an individual a gigantic wrong accomplished by a nation through three hundred long years, and was misunderstood and is now dead because of that misunderstanding" (Id. at 396).

One of Native Son’s lessons is that disparate-impact can be a signal of underlying problems despite the lack of disparate treatment on the surface. The Daltons also suffered a great tragedy despite their efforts at treating Bigger equally. But the Daltons owned many of the residential buildings in the slum that Bigger lived in and thus unknowingly contributed to the climate of Bigger’s subjugation. A longstanding pattern of widespread disparate-treatment can create a future of disparate impact. In her dissenting opinion in Ricci, Justice Ginsburg explained the long history of racial discrimination in fire departments. She noted, “Firefighting is a profession in which the long legacy of racial discrimination casts an especially long shadow" [Ricci v. DeStefano, 2009 WL 1835138 at *32 (U.S. 2009) (Ginsburg, J., dissenting)].She pointed out several ways in which a history of discrimination could continue to affect minorities in fire departments. One example: “many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the overwhelming majority of minority applicants were ‘first-generation’ firefighters without support networks" [Id. at *34 (Ginsburg, J., dissenting)].

Employer Compliance with Title VII in the Face of Unresolved Conflict between Disparate-Impact and Disparate-Treatment Provisions

While the majority appears to have viewed disparate-treatment as a greater evil than disparate-impact, the dissent seems to view them as equally toxic. In fact, the dissent sees no conflict between the two provisions. Ginsburg explained, “Neither Congress’ enactments nor this Court’s Title VII precedents . . . offer even a hint of ‘conflict’ between an employer’s obligations under the statute’s disparate-treatment and disparate-impact provisions. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity" [Id. at *41 (Ginsburg, J., dissenting)]. Although the majority may underestimate the insidious evils of disparate-impact, but it legitimately focuses on a travesty of injustice: scrapping the exam scores would invalidate months of toil for the firefighters who did pass the exam.

Both The Merchant of Venice and Native Son illustrate the twin evil created by disparate-treatment and the underlying unfairness found in disparate-impact. However, Ricci v. DeStefano also illustrates is that the conundrum created by the interplay between the two provisions is far from resolution. Ginsburg notes that, “The Court’s order and opinion, I anticipate, will not have staying power" [Id. at *31 (Ginsburg, J., dissenting)]. Judging by the tenuous 5-4 split among the Justices, she may be correct. Further cases may take this dispute in either direction. The difficulty in identifying what constitutes a “strong evidentiary basis” of disparate-impact may result in a great deal of hesitation and uncertainty as employers continue to risk litigation from both sides. The undertones of Title VII compliance give rise to quandaries that are dramatic enough to be the subject of some of our society’s most prized works of literature.  Again we see art imitates life – as with real life, the greatest literature always juxtaposes the unresolvable tensions of human life.