Question 1
The examinations are traditional, and fire fighters spend a fortune to get crucial certification and possible qualifications and thus the City’s decision to disregard them because a racial minority did not perform well. The decision was clearly driven by racial considerations, and thus accounts to discrimination or disparate treatment against the racial majority by using the statistical performance to make decisions (RICCI v. DeSTEFANO , 2009). In addition, the district court was mistaken in asserting that the motivation of the city to refrain from making promotion decisions that would perpetrate racial discrimination, since the discrimination did not amount to legal discrimination. However, while using the results would not have been legally discriminative, not using exams that have been historically and legally used as a basis of promotions amounted to discrimination. Effectively, the city engaged in discrimination by attempting not to discriminate. Such actions are only justifiable as the court pointed out, under Title VII and the 1964 Civil Rights Act, but only if a lack of affirmative action discrimination would actually amount to contravening these and other laws (Lindgren, Taub, Wolfson, & Palumbo, 2010).
Other cases on discrimination and affirmative action or equal protection precedents indicate that disparate impact treatment and disparate-impact provisions conflict as well as the justifications for any other discriminatory treatment against some people must be founded on the strong evidence basis standard. The examination results had been long established as a standard for promotions and once the criteria had been objectively set and setting it aside especially because of racial considerations fails to meet the strong evidential basis standard required to justify affirmative discriminatory actions (RICCI v. DeSTEFANO , 2009). This is both illegal and hurtful to the majority white fire fighters that had worked hard in passing their examinations, including using a lot of their financial resources to get results that would simply be set aside by the bosses. In addition, while the objectives of the city fathers were well meant, averting unintentional discrimination that leads to perpetration of intentional discrimination cannot be a justification for discrimination and as the ruling observed, the disparate impact provisions of Title VII that categorically forbid employers from taking racially discriminative actions.
Neither is good faith a sufficient justification for racial discrimination, whether it is intended or otherwise a justifiable reason for the action taken by the city (Lorenzo-Blanco, Unger, Ritt-Olson, Soto, & Baezconde-Garbanati, 2011). In terms of precedent, if the actions of the city bosses had been validated by the court, it would have led to even more discrimination in the future, and rendered the examinations and made promotions in the fire department to be less meritorious.
Question 2
Ginsberg opined that the court’s decision that the city hardly showed that it met the required standard to justify discrimination i.e. strong basis in evidence for the defence to stand up in court. According to him, the court assumed that the New Haven city bosses set the test results aside just because of the fact that the white candidates performed better. It is this reason alone that informed the decisions that had been reached by the court (Lorenzo-Blanco, Unger, Ritt-Olson, Soto, & Baezconde-Garbanati, 2011). It however ignores the considerable evidence of the inherent flaws in the examinations that were administered to the fire fighters. In addition, Ginsburg holds that there are other tests used by other cities, which did not suffer from similar flaws as in New Haven, which subsequently gave rise to fairer results. The results in other cities ensured that racial biases did not actually exist. Accordingly, the equal opportunities in form described what was legally regarded as equal opportunities (RICCI v. DeSTEFANO , 2009). This included affirmative action that is contemplated in the Civil Rights Act 1964, Title VII of the constitution and other laws that encourage favourable discrimination.
However, equal opportunity in fact seeks to ensure equal opportunities that live up not necessarily to the established laws, but the spirit of those laws. The laws were set up with the intention of ensuring both non-discrimination as well as promote better opportunities for economic, social, political minorities etc (Hatzenbuehler, McLaughlin, Keyes, & Hasin, 2010). Effectively, while the examination results were on their face value fair and to the exercise of equal opportunity translated to honouring the results, the equal opportunity in fact was not guaranteed. The inherent flaws in the examinations skewed the system towards favouring the majority white population of fire fighters, which effectively meant that the minority population of fire fighters in the city were discriminated against. This is despite the fact that it was perfectly legal and actually according to the existent laws a shining example of equal opportunities for all populations.
The equal opportunities in fact was thus not ensured. The equal opportunity in fact refers to ensuring equal opportunities by respecting the intentions of the existent laws as against simply applying the existent laws and the constitution. In this respect, equal opportunities in fact are far more relevant and progressive that the equal opportunities in form, which are restricted by the existent laws.
Question 3
There is no obligation on a private employer to ensure that their workforce is racially diverse. However, diversity among employees is crucial to the creation of important competencies, which subsequently help the firm to be competitive. This may present a motivation for employers to seek to maintain diverse employees (Hatzenbuehler, McLaughlin, Keyes, & Hasin, 2010). The biggest reason for diversity within an organization however is actually natural, and the private employer’s responsibility is to actually to nothing that would prevent the natural course of growth in the diversity of the organization. Whenever organizations need to recruit, promote, train, retain and other membership or human resource management, they will receive applications reflecting the diversity of the population in which they operate and even beyond. The decisions to have members or staff into an organization etc must only be based only on the qualifications and suitability of the candidates for the purpose (Lindgren, Taub, Wolfson, & Palumbo, 2010). In this way, an organization etc would have diversity within it, without any deliberate decisions on its part to do so.
Discrimination is only allowed if the discrimination criteria is determined by technical requirements e.g. blind applicants for a piloting job or if such discrimination is sanctioned by lawful affirmative action, then it would be illegal (Lindgren, Taub, Wolfson, & Palumbo, 2010). If organizations discriminate against any persons in order to attain diversity or avoid diversity within an organization, is illegal and the decision makers must be sure to avoid it. As such, there is no obligation to maintain diversity within an organization, other than avoidance of illegal discrimination.
References
Hatzenbuehler, M., McLaughlin, K., Keyes, K., & Hasin, D. (2010). The Impact of Institutional Discrimination on Psychiatric Disorders in Lesbian, Gay, and Bisexual Populations: A Prospective Study. American Journal of Public Health, Vol. 100, No. 3 , pp. 452-459. doi: 10.2105/AJPH.2009.168815 .
Lindgren, R., Taub, N., Wolfson, B., & Palumbo, C. (2010). The Law of Sex Discrimination. New York: Cengage Learning.
Lorenzo-Blanco, E., Unger, J., Ritt-Olson, A., Soto, D., & Baezconde-Garbanati, L. (2011). Acculturation, gender, depression, and cigarette smoking among U.S. Hispanic youth: the mediating role of perceived discrimination. Journal Of Youth And Adolescence Vol. 40 (11) , 1519-33.
RICCI v. DeSTEFANO , Nos. 07-1428 and 08-328 (Supreme Court of the United States June 2009).
