On Wednesday, the U.S. Supreme Court will hear oral arguments in a case that could reinforce or cripple the civil rights laws that for decades have helped open doors to women in the workplace. In Frank Ricci v. John DeStefano, the justices will weigh whether Title VII of the Civil Rights Act of 1964 protects employers who take common-sense steps to ensure equal employment opportunities for women and other protected classes.
The case centers around fire department officials in the City of New Haven, Connecticut, who dispensed with a promotion examination that had a discriminatory effect on African Americans. A reversal of the lower court rulings that upheld the City’s actions would have a chilling effect on employers across the country who take reasonable steps to comply with federal laws requiring that they protect employees from discrimination.
At issue are claims of discrimination based on race, but women also have much at stake in the ruling because it could weaken Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of gender as well as race and other factors. This provision has played a critical role in helping women and other groups gain entry to and advance in the workforce, especially in good-paying traditionally male jobs in the public and private sectors. The law bars not only discriminatory treatment of employees, but also employment practices that have discriminatory effects such as the examination given to aspiring firefighters in New Haven that is under scrutiny in this case.
Firefighting is a perfect prism through which to view the effectiveness of Title VII. Women began to filter into this once all-male preserve in the 1970s and ‘80s after Congress extended the reach of Title VII to state and local government employers in 1972. Since then, women have used the provision to mount successful legal challenges to discriminatory recruitment, hiring and promotion practices that had kept them out of firefighting and other fields. Under Title VII, courts have struck down certain height and weight requirements, physical ability tests, on-the-job working conditions and other selection criteria that had a discriminatory effect on women but were shown to have no meaningful relationship to job-performance.
Female firefighters are not the only beneficiaries of the law. It has led many employers in the public and private sectors to re-evaluate and, in some cases, change employment practices so that they more accurately screen for necessary skills. As a result, firefighters and other public safety officials are still fit and strong but are better able to meet the demands of their jobs. Thanks to Title VII, entry to and advancement in public safety and other careers are now based more on true merit than on gender, race or other unrelated factors.
Yet, despite progress, sex, race and other kinds of discrimination persist in firefighting and other professions. Women still remain substantially underrepresented in firefighting, holding four percent of about 350,000 paid firefighter positions in the United States. And women of color are almost entirely absent from the profession, holding just one percent of paid positions. Last November, the United States Equal Employment Opportunity Commission found that new promotion policies implemented by Houston’s fire department were unfair to women because they overemphasized seniority, making it next to impossible for women, who are new to the field, to advance in their careers.
Women continue to rely on Title VII protections to enter and advance in other traditionally male professions, which tend to have higher salaries and better benefits than female-dominated careers such as nursing and child care. Yet the law has come under attack by the more conservative court in recent years, most notably in a 2007 decision that made it more difficult for women to sue for wage discrimination (a ruling that was overturned earlier this year when President Obama signed the Lilly Ledbetter Fair Pay Act into law).
The law is once again at risk in Ricci v. Stefano. A ruling against the City of New Haven would weaken Title VII by undermining employers’ ability to take reasonable steps to comply with federal laws that require employers to end practices that have discriminatory effects on women and other groups. Employers must be able to identify and correct unfair practices in the workplace; barring them from doing so would prevent them from being able to ensure equal opportunity for all and would set back efforts to bring about a more diverse and just society.