ACSBlog has a series of discussions about the Ricci case and underlying labor law and the changes that Kennedy’s majority opinion brought to the mix which I thought might be of interest to readers. I especially found Sherrilyn Ifill’s essay helpful.

For my money, the Ricci case takes aim square at Griggs v. Duke Power.  And the question is:  how long will Title VII stand when SCOTUS was willing to do a de novo review of the facts in the Ricci case, rather then the usual practice of remanding back to the District Court for further inquiry?  I sense a shift in civil rights laws if they can find a case to swing it.

And with the right wing bloc of SCOTUS is willing to rewrite the laws from the bench — as in be an activist judiciary?  That is exactly what the right wing cries foul about when they disagree with the outcome of the case, isn’t it?  

Activist judges come in all philosophical stripes.  It’s worth keeping that in mind — and pointing it out whenever it happens.  What Justice Kennedy did was to enunciate a new standard from the bench.  Which is the very model of a modern activist judge, isn’t it?

The NYTimes puts together a similar round robin discussion on the labor law back and forth, with a particularly fine essay from Christine Rodriguez on the real difficulties inherent in these kinds of cases. And the broader questions for municipalities who have to thread through Title VII, fairness and equity questions and still find leaders among their employees:

The narrower question worth asking now is: what might the Ricci case mean for the use of standardized testing? Will it lead employers who want to create diverse workforces – particularly public employers concerned with the prospects of their black and Hispanic constituents – to use standardized tests less frequently, or search harder for alternatives? Or, will it allow employers to rely more heavily on tests while escaping responsibility for using hiring and promotion practices more likely to provide opportunity for racial minorities?

Justice Kennedy emphasizes that standardized tests are “objective” measurements presumably capable of fairly identifying the best applicants. In a sense, testing has been a way to ensure fairness by reducing the influence of nepotism, subjective race-based judgments and the value of informal hiring mechanisms. On the other hand, as Justice Ginsburg points out in dissent, the tests themselves are often tools of exclusion that are not always aligned with the qualities that make for a good firefighter, such as inter-personal skills and “command” presence.

As Steven Greenhouse points out in the NYTimes, the Ricci decision is likely to raise even more questions for municipalities trying to navigate Title VII considerations. But it does make the written test versus other means of identifying leadership candidates a bigger part of the debate, which I think is a good thing for most municipalities anyway.

Written tests have been phased out in most places, in favor of other leadership measurements, and I think the Ricci decision is likely to hasten that trend, don’t you? (more…)

US Constitution via kjd.

In a 5-4 decision spilt, led by Justice Anthony Kennedy, SCOTUS reversed the Ricci case outright, preferring a full reversal to what was thought might be a middle ground compromise on liability versus Title VII grounds.

The full opinion is available for download here (PDF). The key language from Kennedy:

Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34.

Let the spin war begin, I suppose.  With the issuance of the much anticipated Ricci decision, the political SCOTUS spin wars will begin anew on the Sotomayor nomination.

Evidence of this?  The Federalist Society has a briefing call set up for 11:30 am ET today.  It was ready to go with Gail Heriot, C. Boyden Gray and Roger Clegg on tap before the SCOTUS opinion on the case ever got released.

Federalist Society holds a discussion via teleconference on how the expected Supreme Court ruling on Ricci v. DeStefano will impact discrimination, employee rights and the Supreme Court nomination of Sonia Sotomayor.

Talking points at the ready and….go! Who cares about the actual opinion!

That sound you hear is journalists with pens at the ready for stenography.  Except?

Anyone who tries to tell you that this is simply a race issue or an easy call doesn’t know jack about labor law. Marcia at Workplace Prof blog did an exceptional layout of the nuances and legal parsings from the SCOTUS oral argument. And, as anyone who reads it can see, it isn’t just black and white. Not by a long shot. (more…)

Photo via Big Grey Mare — Out On Pasture.

I do not envy Hilda Solis’ task at the Department of Labor.  Reversing the last 8 years of not-so-worker-friendly Elaine Chao-isms is not going to be an easy task.  Especially where there are these types of concerns:

In one case, the division failed to investigate a complaint that under-age children in Modesto, Calif., were working during school hours at a meatpacking plant with dangerous machinery, the G.A.O., the nonpartisan auditing arm of Congress, found.

When an undercover agent posing as a dishwasher called four times to complain about not being paid overtime for 19 weeks, the division’s office in Miami failed to return his calls for four months, and when it did, the report said, an official told him it would take 8 to 10 months to begin investigating his case.

This is not the first time problems have been reported with child labor law enforcement particularly, something that is supposed to be a sacrosanct enforcement priority at Labor. Via Jamie Parks at AFL-CIO:

On a typical day, more than 400 workers younger than 18 are hurt on the job in the United States and one is killed every 10 days. At the same time, the number of federal child labor investigations has declined by half since the Bush administration took office eight years ago….

The U.S. Labor Department has 750 investigators who look into both child labor and wage and hour complaints, 20 percent fewer than in 2001, according to Rep. Lynn Woolsey (D-Calif.), who chairs the House Education and Labor subcommittee on Workforce Protections. Woolsey, who conducted hearings last September on child labor, has vowed to work with the incoming Obama administration to strengthen child labor laws and increase the number of inspectors. The current laws have been loosely enforced at best, the Observer found. Under federal law, the maximum penalty for most child labor violations is $11,000, but in 2006 the average penalty was less than $1,000.

The Charlotte Observer series that Jamie references is wrenching, intersecting poverty, despair and dangerous conditions for the kids working at a poultry plant that actively recruited underage workers because they were more "compliant." (Full series here. Part I and Part II on child labor.)

That drop in child labor enforcement and reduction of staffing didn’t happen by accident, now did it? Is it what happens when you put people who loathe government and labor organizations in charge of the Department of Labor?

Do workers’ interests get a fairer shake in a Democratic administration? I certainly hope so, and will be watching. (more…)

I don’t know about you, but I’m sick of GOP vapors and scare tactics. As Digby said:I’ve been hearing rumblings since the election that Democrats in congress were getting wobbly on the Employee Free Choice Act and that the administration was inclined to push it down the agenda. Presumably this is because the wingnuts are planning to stage a mass case of the maidenly vapors the minute they bring it.

Hilda Solis was confirmed this afternoon as the new Labor Secretary in a vote of 80 to 17. This is excellent news. Mike Hall at AFL-CIO has details: Says [AFL-CIO President] Sweeney: She understands that the Employee Free Choice Act is critical to rebuilding our economy because working men and women deserve the freedom to choose whether to form a union without employer interference.

As Ben Smith reports, President Obama invited several folks over for a White House cocktail soiree yesterday evening.

I’m told by a source that Valerie Jarrett’s office organized the get-together. On the menu?  From the guest list, it sure looks like the Employee Free Choice Act (EFCA) was on the White House front burner.