The authors of this legislation knew that employment decisions involve so many different variables that you won’t find the old “Jim Crow” practice of “white’s only jobs” in today’s workplace. But social science studies have verified that the negative perceptions of people of color come from our culture. They, more often than we realize, affect the way many of those judgments about who is “qualified” for a position are made. Even though written tests are supposed to neutralize those subjective factors, what we test and how we test often carries those same cultural biases. In New Haven the written test accounted for 60% of the score and an oral exam 40%. But this test design was based on the requirements of a twenty year old labor contract with the firefighters union and not on more up to date studies. In contrast, several other cities, including some in Connecticut have discarded those types of tests because they “don’t reflect the real world situations” that fire fighters face, nor do the measure leadership and judgment, two of the most important qualities of a supervisor.

Title VII’s “disproportionate impact test” at least required employers to look more closely at their employment practices and make sure that exams, when used, were truly related to the performance of the job. If those tests adversely impacted opportunities for minorities, then other methods that were equally as effective would have to be explored.

But yesterday the Court added a new hurdle to this process. They declared that in addition to the “disproportionate impact” standard that tests once used by an employer wouldn’t be considered invalid under Title VII unless there was also a “strong basis in evidence” that the test was discriminatory. The Court didn’t say what that “strong basis in evidence” might consist of, but when the record of the New Haven case is reviewed one cannot escape the conclusion that by adding this standard the Court has severely undermined the scope and effectiveness of Title VII.

This case is not simply about a conservative majority and a liberal dissent, as has been the trend in recent civil rights cases. It is about two vastly different ways of experiencing the world. The majority, consisting of the traditional conservative block of the Court saw “reverse discrimination” where whites simply scored higher than blacks and Hispanics. They also saw the civil rights laws as having gone too far, as encouraging quotas, even though none were present in the Ricci case and they saw the greatest evil of all--government engineering of racial outcomes. Justice Alito even went so far as to claim the city threw out the test because they were fearful of a black minister, notorious for stirring up trouble and who was a charlatan, convicted of scamming old ladies in a funeral billing scheme.

Justice Ginsberg wrote a stirring dissent and in doing so reminded us why women bring a deferent and important experience to the Court. As a lawyer Justice Ginsberg handled Title VII cases opening employment opportunities where women were previously excluded. She not only new the law, but as she pointed out, understood the “context” in which the exclusion of women and minorities occurs. Her opinion correctly pointed out that when Congress enacted Title VII it was precisely to use the law as a means of inclusion for those previously kept out of the work force. She also recognized that the factual record of the case showed numerous examples of why and how the New Haven test was flawed and how neutral experts had advised that the results be thrown out. These “facts” stood in stark contrast to Justice Alito’s theory of fear of racial hustling as the city’s motive. But the majority simply ignored this record because they could only see the facts that justified their “anti quota” crusade.

In this fiscal crisis where municipalities and states are trimming back their work force the battles of last hired, first fired will have an inevitable racial character to them. As budgets tighten, rather than explore more relevant testing methods, many employers are likely to stay with less expensive, though flawed written exams similar to the one that New Haven tried to avoid. Justice Ginsberg saw quite clearly that the “cultural wars” are really political wars, stretching over these last three decades, they involve crucial issues of power, inclusion and the remaking of public policy. After yesterdays decision it is clear that one small battle in that longer struggle was lost.