In the lead up to judge Sotomayor's confirmation,
a case involving New Haven, "my home town" was used by Republicans to attempt and frame Ms. Sotomayor, "an American-Puerto Rican female who worked her way up through poverty" as a racist. There was nothing more disturbing than seeing the Republicans questioning Ms. Sotomayor, "all older white males" then reading the online suggestions that Ms. Sotomayor was not qualified for this position due to her stance on race. This meant, all those questioning her were somehow more qualified.
The connection was based in a theory that Ms. Sotomayor was only chosen because she was a Hispanic woman. Being a recipient of affirmative action favor, so the theory goes, she voted with the city of New Haven in the Ricci v DeStefeno case.
There are many undertones of racism involved with this view, beginning with the notion that those who use anti-discrimination laws in their favor are doing so because they are other wise unqualified to achieve their goals.
Problems with the Supreme Courts findings on Ricci v DeStefano.
The Supreme Court voted along party lines to overrule local and district courts in this case.
The conservative judges justification is found in Title VII of the Civil Rights Act. The court argued that Ricci, and the other firefighters faced discriminatory hiring practices by the city of New Haven based in the Equal Protection clause of Title VII.
The original reason for throwing the test results out was also found in Title VII of the Civil Rights Act. In Title VII there is the option for employers to not use aspects of their hiring procedure if they ended in racial disparity. This protected employers against litigation.
The city contracted the test creation to a private company “Industrial/Organizational Solutions, Inc.” Once the test was taken, half the number of African Americans passed than that of Caucasian. This disparity was wider than that of previous exams. New Haven’s independent exam rule board was split on their decision regarding the tests 2-2, so the tests were not certified.
Ricci, and the other firefighters who did pass this test sued the city. Connecticut courts upheld the city of New Haven's right to do away with the test under Title VII disparity laws. The regional court held in New York, "judge Sotomayor's tie into the case" upheld New Haven's right, as an employer to give a new test
The Supreme Court found that in this specific case, one aspect of Title VII, “Equal Protection”
was more significant than another part of the same act, “prohibition of hiring practices which produce disparate racial results.”
The court did not re-write the law to say this,
and that is where the problems begin.....
The court did not re-write the law to describe in what occasion a test may be thrown out, or not thrown out. Conservative judges Scalia, Alito, and Thomas publicly argued that since the tests were related to job performance they were not subject to disparity claims. The judges did not re-write the law to say this. In fact, the disparity language in title VII did not change at all.
The conservative judges simply felt that New Haven probably would have won if sued over disparity.
What was the result of this finding?
Now all employers must weigh whether to throw out aspects of hiring practices that result in disparity or not. Employers could face litigation under racial disparity if steps taken during the employment practice produce very uneven outcomes based on race, but they could also face litigation by the majority group if the employer decides to scrap the aspect of employment which caused the disparity in an attempt to protect its self from that very same litigation.
The only avenue of guidance given by the Supreme Court is that they believe disparity suits will not be won.
There is now precedent for two different findings on the same topic, with neither over ruling the other.
The Supreme Court is supposed to take on cases which result in new views of established law. What the court did was say in this specific case disparity was not enough to justify throwing away the tests, but in the future disparity may be enough for litigation. The court did not change the law, it ruled on this specific case.
One must wonder if Judge Sotomayor were not a candidate for SCOTUS if this case would have been given back to District with notes of concern, since now definite change in the law occurred.
- This ruling has already been challenged in NYC. U.S. District Judge Nicholas G. Garaufis agreed that the city has discriminated against minorities in its hiring of firefighters, causing blacks and Hispanics to comprise only 10 percent of the fire department's work force even though most city residents are minorities.
This is the argument Judge Ginsburg gave in her dissenting vote against the conservative judges in the Ricci case.
- Back in New Haven at the end of July, the New Haven jury awarded five minority Greenwich police officers $157,000 in a federal racial discrimination case.
Do these cases need to be appealed all the way to the Supreme courts to find a resolution? The Supreme Court's findings were essentially a non-finding, and eerily political.
The irony of the whole case is that due to the findings by the Supreme Court, determining a discriminatory hiring practice has become subjective,
the very term Republicans used to slander Sonia Sotomayor.
- In the future people such as Frank Ricci may find it harder to win lawsuits.
In 1995 Ricci sued New Haven for discrimination, "dyslexia" when he was not chosen for
1 out of 40 positions among 795 candidates applying for a fire fighter position.
The case was settled on 2007, when Ricci finally received his position.
It also happens that Ricci sued the city of Middletown in 1998 over his dismissal. The Connecticut Department of Labor investigated, and found Ricci's firing was justified.
Where are these health care reform protesters coming from?. 
