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Wards Cove II: Congress Must Overturn SCOTUS' Ricci Decision

By Big Tent Democrat

Earlier this month, I cited Ian Millheiser on Wards Cove:

In 1989, the Supreme Court in Wards Cove Packing v. Antonio significantly weakened the ban on disparate impact discrimination. Congress responded almost immediately by overturning Wards Cove with the Civil Rights Act of 1991. Right-wing justices tried their best to roll back civil rights law, but they were rebuffed by elected representatives.

In light of the SCOTUS' decision in Ricci, Congress must again act to rebuff the efforts of extreme right wing judicially activist Justices to roll back civil rights law. In dissent in Ricci, Justice Ginsburg wrote:

The Court’s decision in this litigation underplays a dominant Title VII theme. This Court has repeatedly emphasized that the statute “should not be read to thwart” efforts at voluntary compliance. Johnson, 480 U. S., at 630. Such compliance, we have explained, is “the preferred means of achieving [Title VII’s] objectives.” Firefighters v. Cleveland, 478 U. S. 501, 515 (1986). See also Kolstad v. American Dental Assn., 527 U. S. 526, 545 (1999) (“Dissuading employers from [taking voluntary action] to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII.”)

The strong-basis-in-evidence standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture.

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—even for surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulate an employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.” Ante, at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself. Cf. ante, at 24. There is indeed a sharp conflict here, but it is not the false one the Court describes between Title VII’s core provisions. It is, instead, the discordance of the Court’s opinion with the voluntary compliance ideal. Cf. Wygant, 476 U. S., at 290 (O’Connor, J., concurring in part and concurring in judgment) (“The imposition of a requirement that public employers make findings that they have engaged in illegal discrimination before they [act] would severely undermine public employers’ incentive to meet voluntarily their civil rights obligations.”).

(Emphasis supplied.) As in Parents Involved, the extreme conservative, brazenly judicially activist Gang of 5 has made clear their own willingness to overturn actions by the elected representatives of the People to act to remedy centuries of discrimination.

The Congress can not let this brazen act of judicial activism stand. It must enact legislation overturning the Court's unprincipled decision in Ricci.

Speaking for me only

Full post as published by TalkLeft on June 29, 2009 (boomark / email).