The Corner

Ricci and Sotomayor

The Supreme Court in Ricci held that before an employer can engage in intentional racial discrimination (i.e., throwing out the results of the promotional exam in which the highest scorers were white) for the claimed purpose of avoiding or remedying an unintentional disparate impact, it must have a strong basis in evidence to believe it will be subject to disparate-impact liability (not just sued) if it fails to take the race-conscious discriminatory action.


Since Sotomayor and her colleagues summarily dispensed with the white firefighters’ arguments, the Supreme Court’s opinion provides senators with a host of questions for Sotomayor during the confirmation hearings, starting with whether the nominee even considered  arguments pertaining to the promotional exam’s job-relatedness.


Given that the Second Circuit affirmed summary judgment for New Haven in relatively cursory fashion, the Supreme Court’s Ricci decision is a significant rebuke to how Sotomayor and her colleagues dispensed with the case.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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