President Obama's nomination of Judge Sonia Sotomayor to the U.S. Supreme Court has caused a media uproar. News anchors have agonized over Judge Sotomayor's remarks about appellate courts "making policy," and interviewers have cringed at the thought of Judge Sotomayor’s social identity as a Hispanic woman influencing her perspective on legal issues.
But what will Judge Sotomayor’s impact be on employers?
The best predictor of future behavior often is past behavior, so it is useful to examine the opinions she’s rendered during her tenure as a judge. Those opinions provide the best insight into the influence she might have on the composition of the Supreme Court.
Judge Sotomayor will take the place of former Supreme Court Justice David Souter, a George H.W. Bush appointee associated with the liberal wing of the Court. In the Court's last session, Justice Souter wrote for the majority in two employment-related matters, both ruling in favor of the employee.
In the first decision, Crawford v. Metro Government of Nashville and Davidson County, the Court considered whether the scope of Title VII's protection extends to an employee who reports unlawful harassment in an employer’s questionnaire. Writing for the majority, Justice Souter explained that Title VII protects an employee who responds to his or her employer's questions about harassment from retaliation just as it would protect an employee who otherwise complains about harassment. The second decision, Meacham v. Knolls Atomic Power Laboratory, addressed age discrimination and the Court held that an employer bears both the burdens of production and persuasion when asserting that an otherwise discriminatory employment practice is permissible due to "reasonable factors other than age."
Judge Sotomayor and Justice Souter bear some remarkable similarities. Judge Sotomayor was also a Bush appointee. Both graduates of Ivy League law schools, they devoted much of their professional careers to public service. More importantly, Judge Sotomayor's employment-related decisions resemble those of Justice Souter, because they tend to sympathize with employees more often than employers.
The case that has caused the most heartburn for employers is Ricci v. DeStefano. The plaintiffs in Ricci were white firefighters whom the City of New Haven (Connecticut) had denied promotions when it determined that the examination used to grant promotions had a disparate impact on black firefighters. The plaintiffs felt they had been penalized for scoring well on the exam.
However, the summary order rendered by Judge Sotomayor and two of her colleagues reasoned that the city's action was permissible because it was trying to fulfill its obligations under Title VII.
The Ricci decision echoes those of Justice Souter because it focuses on guarding the integrity of civil rights legislation that protects employees. However, it is also a troubling decision because it blurs the line between avoidance of racial discrimination, which is legally required, and enforcement of racial quotas, which is illegal. It leaves employers without clear directions regarding their obligations under Title VII.
Take a Deep Breath and Relax
Before you give yourself an ulcer over Ricci, rest assured that the decision has been appealed to the U.S. Supreme Court. The Court resolved the confusion by employing the "strong basis in evidence" standard used by courts in affirmative action cases, intending to ensure that actions taken to avoid discrimination will not incidentally result in more discrimination. Because the city's disregard for the evaluation scores did not satisfy the "strong basis in evidence" test, the Court held that it erred when it failed to take the scores into consideration. Problem solved. And regarding Judge Sotomayor's nomination, you can relax about that, too. She is taking Justice Souter's place, and Souter was by and large a liberal judge.
Did you really expect President Obama to replace him with a conservative? The Supreme Court is comprised of nine Justices with nine different perspectives. Thus, although her nomination has created some controversial news headlines, don’t expect Judge Sotomayor's appointment to mark a significant shift in the overall jurisprudence of the Court.