Reverse-discrimination case splits Supreme Court

Justice Antonin Scalia said that the two provisions seem to be "at war with one another."

Deputy Solicitor General Kneedler and New Haven's lawyer, Christopher Meade, said the law works toward a common goal.

The disparate impact section of the law is a prophylactic against intentional discrimination, Kneedler said. It is designed to encourage employers to self-police their employment practices by halting and correcting any practice that might result in a disparate impact against minority workers, he said.

The justices were divided over whether the completed employment test should have been so easily discarded.

"Shouldn't there be some standard that there has to be a significant – a strong showing after the test has been taken that it's deficient ... before it can be set aside?" Kennedy asked.

Kneedler responded that the Obama administration did not believe such a high showing was necessary because the city invalidated the test results for all candidates, not simply the white candidates. The government viewed the blanket invalidation as racially neutral.

Several conservative members of the court took issue with that view. Chief Justice John Roberts said New Haven's position, if adopted, would create a "blank check to discriminate" against white employees.

One recurring issue during the argument was whether employees who pass a promotion test are entitled to not have the test thrown out.

Kennedy said federal law creates a presumption that such employment tests should not be easily dismissed.

Mr. Meade disagreed. "Just because a test has been administered doesn't mean that Title VII's disparate impact provisions suddenly disappear," he said. "There's no entitlement to be promoted on the basis of a flawed or discriminatory test."

Meade said the alternative would be to force employers to make workplace decisions based on a suspect test. "It's much better for an employer to stop," he said, "rather than to rush forward and to create potentially further discrimination and a more aggressive use of race down the road."

Arguing from the liberal side of the court, Justice David Souter took issue with the firefighters' approach to the case.

"The problem I have with your argument is that it leaves a governmental body like New Haven in a damned-if-you-do, damned-if-you-don't situation," Justice Souter said. Either the city gets sued by the white firefighters, or it gets sued by the black firefighters.

Souter added, "Whatever Congress wanted to attain [in passing Title VII], it couldn't have wanted to attain that kind of a situation."

The firefighters' lawyer, Gregory Coleman, told the justices that the city threw his client's high-ranking test scores out based on a mere "good faith belief" that the city might be sued. He said the city should have to demonstrate more to justify the adverse action against his clients.

"Our firefighters had already taken the test; they had earned their promotions under state law," he said.

A decision in the case is expected by late June.

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