The Record of Judge Sonia Sotomayor on Critical Legal Rights for Women: Federal Anti-Discrimination Protections: Promotion Policies and Affirmative Action

Judge Sotomayor's Legal Record: Federal Anti-Discrimination Protections

July 2009

Promotion Policies and Affirmative Action

A great deal of public attention has focused on Judge Sotomayor's participation in the lower court decision in one Title VII disparate impact case involving promotion policies in the public sector, Ricci v. DeStefano.[1]

In 2003, the City of New Haven administered written and oral promotional examinations for captain and lieutenant positions in its fire department. Based on the results, no Hispanic or African American applicants were eligible for the available lieutenant positions, and only two Hispanic and no African Americans were eligible for the captain positions. In fact, though not a part of the case, no women of any race were eligible for promotion to any job as a result of the test. Following hearings before the City's Civil Service Board, the Board determined that it should not certify the exam results for promotions, believing that the City could be in violation of Title VII if it made promotions based on the results of a flawed exam.

The City would not have been able to justify its use of the exam if it could not show that the exam was both job-related and consistent with its business needs. And even if it could make such a showing, there remained the questions of whether an acceptable, nondiscriminatory alternative was available. The City therefore also considered testimony about alternative approaches to the exam. Testing experts offered evidence that other methods of testing candidates for promotion were available and suggested that alternative tests might not have an adverse effect on minority candidates. Twenty white firefighters, including one Hispanic firefighter, filed suit, claiming that the decision by the City to not certify the test results was reverse discrimination.

In an extremely thorough and detailed opinion, the district court rejected the firefighters' arguments that the City was required to certify the results of a test that it believed violated Title VII. A panel of the Court of Appeals for the Second Circuit, including Judge Sotomayor, affirmed the district court decision in a summary order following a very active oral argument.[2] The unsigned order stated that the panel was constrained in its decision by Second Circuit precedent. A judge on the Second Circuit sua sponte requested a vote on whether the case should be heard en banc, but a majority of the Second Circuit judges declined to review the panel's decision. The firefighters petitioned for certiorari, and the Supreme Court agreed to review the case.

In a 5-4 decision, the Supreme Court ruled in favor of petitioners.[3] In so doing, the majority opinion, written by Justice Kennedy, declared that employers must have "a strong basis in evidence" before discarding a discriminatory test or practices.[4] This represents a shift in the standard traditionally guiding employers confronting discriminatory practices, which the Second Circuit panel could not have anticipated and could not have reasonably instituted itself. In fact, no other court to consider the application of disparate impact and disparate treatment cases had ever applied the "strong basis in evidence" standard. Four Justices, including Justice Souter, would have upheld the Second Circuit ruling.[5] The closely divided decision demonstrates that the Second Circuit panel fell within the mainstream of judicial thought, with four Justices in agreement.

Judge Sotomayor has been criticized both for the summary manner in which the Second Circuit panel disposed of the case and for the actual outcome in the decision. But these critics do not account for the standard practice of summary orders (unpublished orders adopting the reasoning of the district court) on the Second Circuit. The Second Circuit rules allow for summary orders where "there is no jurisprudential purpose" in publishing an opinion and 75% of the court's cases are disposed of in this manner.[6] Its use in Ricci was not so unusual given that there was directly applicable Second Circuit precedent. There would have been no way for the panel to have anticipated that, upon review by the Supreme Court, an entirely different rule never before applied to Title VII disparate impact claims would be adopted.

In addition, the Center strongly believes that the Second Circuit and district court reached the right outcome and authored an amicus brief in support of New Haven that stressed the importance of the disparate impact provision, particularly in nontraditional fields, for women.[7]

Despite intense and lengthy questioning about the case during her confirmation hearing, Judge Sotomayor consistently made the point that she was following Second Circuit precedent and that the summary opinion was justified, given the lengthy and persuasive lower court opinion.

In other cases involving the disparate impact of promotional practices, Judge Sotomayor has similarly applied the law consistent with the facts before her. And where the lower court decision was inconsistent with Second Circuit or Supreme Court precedent, she joined opinions to vacate the lower court decision. In Malave v. Potter,[8] for example, Judge Sotomayor joined an opinion vacating a district court's grant of summary judgment in a challenge to the promotion practices of the Postal Service, which the plaintiff claimed had an unlawful disparate impact on Hispanics. The panel held that the district court outlined the wrong standard of proof for a Title VII disparate impact claim. The court required the plaintiff to prove that the promotional practices had an adverse impact by looking at the number of Hispanics applying for promotional positions. As the panel decision noted, this standard conflicted with both Supreme Court and Second Circuit precedent, which permitted adverse impact to be determined by looking at either the applicant pool or the eligible labor pool.

In Atkins v. Westchester County Department of Social Service,[9] Judge Sotomayor joined a summary order affirming the district court's decision to grant summary judgment against a group of African American employees who claimed that the promotional exam used by the county had an unlawful disparate impact. But, the panel noted, the plaintiffs were unable to show a measurable racial disparity. In fact, the promotion rates were actually higher for African American candidates than white candidates.

In addition, while Judge Sotomayor was a PRLDEF board member, the organization was involved in litigation challenging promotional exams,[10] and filed a number of amicus briefs in Supreme Court cases dealing with affirmative action policies challenged under Title VII,[11] including Johnson v. Transportation Agency,[12] Local 28 v. EEOC,[13] and Local 93 v. City of Cleveland.[14] The affirmative action plan in Johnson did not contain numerical requirements, but the plans at issue in Local 28 and Local 93 did. The Supreme Court upheld the plans in all three of these cases.

PRLDEF staff did report to the Board that they had been involved in these cases,[15] but as Judge Sotomayor testified at her confirmation hearings, Board members did not review the organization's legal work generally[16] or review amicus or other briefs.[17] As a result, it is fair to say that Judge Sotomayor knowingly served on the Board of Directors of an organization that engaged in litigation challenging promotional exams and supported legal protection for affirmative action programs in the context of employment.

[1] Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008) (per curiam).

[2] See Warren Richey, Sotomayor on tape: What she said in firefighter race case, Christian Sci. Monitor, May 29, 2009, available at http://features.csmonitor.com/politics/2009/06/03/sotomayor-on-tape-what-she-said-in-firefighter-race-case/.

[3] No. 07-1428, slip op. ( U.S.n> Jun. 29, 2009).

[4] Id.

[5] No. 07-1428, slip op. ( U.S.n> Jun. 29, 2009) (Ginsberg, J., Stevens, J., Souter, J., and Breyer, J., dissenting).

[6] The Second Circuit's Handbook states that 75% of cases are decided on summary orders. See http://www.ca2.uscourts.gov/Docs/COAManual/everything%20manual.pdf

[7] Following the decision, the Center produced materials and participated in a coalition press call to explain the impact of the Ricci decision on women.

[8] 320 F.3d 321 (2d Cir. 2003).

[9] 2002 WL 465163 (2d Cir. May 27, 2002).

[10] See, e.g., Puerto Rican Legal Defense and Education Fund, Inc., Report of Program Activities, 1987 (describing several challenges to promotional exams brought under Title VII) supra.

[11] Brief for the Lawyers' Committee for Civil Rights under Law, the Mexican American Legal Defense and Education Fund, the National Association for the Advancement of Colored People, and the Puerto Rican Legal Defense and Education Fund, Inc. as Amicus Curiae Supporting Respondents; Johnson v. Transportation Agency, 480 U.S. 616 (1987) (No. 85-1129) WL 728159 [hereinafter Johnson Amicus Brief]; Brief for the NAACP Legal Defense and Education Fund, Inc., National Association for the Advancement of Colored People, Mexican American Legal Defense and Education Fund, Inc., National Urban League, Inc., Puerto Rican Legal Defense and Education Fund, Inc., Asian American Legal Defense and Education Fund, Inc., and the New Jewish Agenda as Amicus Curiae, Local 93 v. City of Cleveland, 478 U.S. 501 (1986) (No. 84-1999) WL 728300 [hereinafter Local 93 Amicus Brief]; Brief of the NAACP Legal Defense and Education Fund, American Jewish Congress, American Jewish Committee, National Association for the Advancement of Colored People, Mexican American Legal Defense and Educational Fund, Inc., National Urban League, Inc., Puerto Rican Legal Defense and Education Fund, Inc., Asian American Legal Defense and Education Fund, Inc., the New Jewish Agenda, the Commission on Social Action of the Union of American Hebrew Congregations and the Central Conference of American Rabbis as Amicus Curiae, Local 28 v. E.E.O.C., 478 U.S. 421 (1986) (No. 84-1656) WL 1031747 [hereinafter Local 28 Amicus Brief].

[12] 480 U.S.n> 616 (1987) (challenge to voluntary affirmative action policy).

[13] 478 U.S.n> 421 (1986) (challenge to affirmative action plan ordered as part of contempt sanctions).

[14] 478 U.S.n> 501 (1986) (challenge to affirmative action plan entered into pursuant to consent decree).

[15] See PRLDEF, A History of the Litigation 1982-1987, supra note 56.

[16] Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States Supreme Court, Jul. 14, 2009, available at http://www.nytimes.com/2009/07/14/us/politics/14confirm-text.html?_r=1&ref=politics.

[17] See, e.g., Transcript, Hearing: Nomination of Sonia Sotomayor to be Associate Justice of the United States Supreme Court, Jul. 14, 2009, available at http://www.nytimes.com/2009/07/14/us/politics/14confirm-text.html?_r=1&ref=politics; Nomination of Sonia Sotomayor to be Associate Justice of the United States Supreme Court, Jul. 16, 2009, available at http://www.nytimes.com/2009/07/16/us/politics/15confirm-text.html?ref=politics.