The Supreme Court's Conservatives 'Legislate From The Bench.'

Right-wing pundits often complain that too many judges are 'liberals who legislate from the bench' instead of interpreting the laws as written by the legislature and Constitution.  Well, today's Supreme Court decision supporting white New Haven firefighters in their fight to have their promotional test results grant them the jobs they assumed they earned by scoring highest on the test was exactly that: legislating from the bench.

Justices Scalia, Alito, Roberts, Thomas and Kennedy chose to re-interpret Title VII of the Civil Rights Act in a manner that no previous Supreme Court decision had done, overturning a unanimous 3-judge ruling on the same case that OP highlighted a few weeks ago in a previous entry.   Under Title VII (and supporting decisions handed down in the following decades), any testing or hiring practice that produced outcomes that severely disadvantage ANY protected group -- whether that group is a race, a gender, or a religious group -- is illegal.  Such an outcome is called adverse impact.  The same rules apply if majority groups (whites, Christians) are hired at significantly lower rates than would be expected due to the use of a test or other selection procedure. 

Under previous legal precedent, once the plaintiff had proved that a test produced adverse impact, the burden fell on the hiring organization to prove their test was reliable, valid...and that no alternative selection procedures could be used that did not produce adverse impact.

Writing for the majority, Justice Kennedy said (according to the article) that "...an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said."  This is only true because Kennedy now says it is.  Again, in the past all the plaintiff had to do was prove that adverse impact exists before the burden fell back on the defendant.  Given the numbers of blacks and Latinos that took this promotional test, it's obvious that the outcome (no blacks and one Latino scoring high enough to be promoted) produced adverse impact. 

The city of New Haven seems justified in thinking they would not necessarily be able to prove that their selection system was valid and that no alternative selection process existed that would decrease adverse impact.  The city didn't promote people who didn't score the highest -- it simply didn't promote anyone at all, in part because the city's black firefighter's association was already threatening to sue.  And that organization had defeated the city in past discrimination cases. 

The one caveat in my analysis is that apparently, New Haven's consultants who designed the test failed to validate their tests, and thus had no data on whether or not they were effective.  This oversight is so unbelieveable and inexcusable that New Haven probably deserved to lose out of spite...although obviously, Supreme Court decisions aren't supposed to be made that way. 

This 5-part article details the history of firefighting selection processes, discrimination and tension through this case and a few others.  It's a very educational read. 

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