Written by Debra Eichenbaum, Legal Intern,
National Women's Law Center
This post is part of a series about the nomination of Judge Sotomayor for the Supreme Court.
Hardly any issue has garnered as much criticism and questioning this week as Judge Sotomayor’s participation on a three-judge panel in Ricci v. DeStefano. And over the past two days, Judge Sotomayor repeatedly explained both the Second Circuit decision and the new rule established by the Supreme Court in that case. After her exchange yesterday with Senator Cornyn, we thought it might be helpful to explain in more detail exactly what the Supreme Court did in Ricci.
As we’ve explained before, the Supreme Court established a new rule for an employer that seeks to set aside what it believes a discriminatory test or practice. And as Judge Sotomayor explained further, in establishing a new standard for employers, the Court "borrow[ed] from other areas of the law." In fact, the Court applied a constitutional standard for race-based decisionmaking, holding that an employer must have "a strong basis in evidence" that it will be subject to Title VII liability if it administers a test.
As Justice Ginsburg noted in her dissent, this approach had never before been applied in a Title VII case.
Unfortunately, we’re quite confidant that Judge Sotomayor will face similar questions on Ricci as the hearings continue and there will be efforts to suggest that the Second Circuit decision should have been in line with the Supreme Court. Whether you think the Supreme Court decision was a fair application of Title VII (or, like us, think that the ruling was truly a setback for equal opportunity for women and minorities), there simply would be no way for the Second Circuit to anticipate the Supreme Court’s ruling.