Race, Racism, & The Law Memorandum

Impact of Ricci regarding reverse discrimination in the workplace

INTRODUCTION The Ricci case had earned much notoriety as a result of Justice Sotomayor's senate confirmation hearings during the summer of 2009. Members of our legislature opposing her nomination, for whatever reasons they, continually focused on her role in this decision prior to its appeal to our nation's highest court. I remember intently watching the confirmation hearings, hearing Justice Sotomayor being grilled from members of the senate committee solely on the topic. It was not until I began researching this case for the purposes of this memorandum that I learned that Justice Sotomayor did not write an opinion to this case at all, but merely signed an order affirming summary judgment. Ricci v. DeStefano, 264 Fed.Appx. 106 (2d Cir. 2008).

There was a very brief opinion attached to the order. The short text that was given explained that the firefighters did not have a viable Title VII claim; and the Board acted lawfully in refusing to validate the exams to satisfy Title VII requirements when faced with results with a showing of disproportionate racial impact. Id. Subsequent to the order, an active judge of the Court requested a poll on whether to rehear the case in banc. Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008). The Second Circuit of Appeals in a 7-6 vote, withdrew their order affirming, and instead issued a per curiam order. Id. Then Judge Sotomayor concurred with Judge Katzmann and Judge Parker in their opinions to decline an en banc rehearing of Ricci. But because of the continuous opposition against Justice Sotomayor during the confirmation hearings on this decision, in addition to the press' nonstop reporting on this attack, my interest in the developments of Ricci was certainly incited. Racism in American society stemming from the time of slavery still exists to a varying degree. Though slavery is of course no longer an issue; prejudice, intolerance, and bigotry continues to inject itself into culture whether those who are realize it or not. To combat this, Congress enacted The Civil Rights Act of 1964 that outlawed discrimination and ended racial segregation in America.

Contributed by: Andrew Thomas Smith In Ricci v. DeStefano, the principle case in this memorandum, the Supreme Court particularly examines an aspect of Title VII of the Act; which prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin. But interestingly enough, legislation that was passed to prevent discrimination of minorities in the workplace, has become the means to prevent discrimination of non-minorities. Discrimination has grown to become a complex entity in itself. Reverse discrimination and affirmative action programs have become the source of much controversy in cases involving inequality in the workplace; and we see the source of ire in the principle case stems from it. Reverse discrimination is: 1) a concept of prejudice directed; 2) against members of certain social or racial groups, as white persons; 3) thought of as being dominant or having benefited from past discrimination against minority groups who are now favored. These are often as a result of (and most commonly associated with) affirmative action programs; the policies that take factors including "race, color, religion, sex or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination..

LEGISLATIVE HISTORY OF THE CIVIL RIGHTS ACT OF 1964 TITLE VII Title VII of the Civil Rights Act of 1964 has been used to both defend and oppose reverse discrimination decisions by employers. The Civil Rights Act of 1964 was the subject of the longest Congressional filibuster in history, and until this day it continues to hold that record. Crain, Kim, Selmi, Work Law: Cases and Materials 536 (2006 Lexis/Nexis). Prior to the enactment of Title VII of the Civil Rights Act, it was legal for employers to discriminate on the basis of race, sex, national origin, and religion. Id. But the bottom line principle of Title VII is found in section 703(a)(1): "It shall be an unlawful practice for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.