Judge Sotomayor and the Firefighters

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Imagine yourself in the following situation:

Your favorite sports team just won a hard-fought and important game. Their months of practice and hard physical training practice paid off. The win puts your team in good position to win the championship so the players and fans are about to start celebrating. But wait what is this? The referee is signaling for attention. He asks for a microphone and announces, “The score shows that the team with the green jerseys won. However we believe that there should be more winning teams with white jerseys so we are nullifying the results and officially this game was never played. It will not count toward the championship.”

Or if you’re not a sports fan, imagine you’ve just completed a degree that qualifies you for the career of your dreams. Maybe it’s nursing, engineering, teaching or whatever you think would be an enjoyable and rewarding career. You got high grades and have been offered several positions. You take one of those jobs and go to the human resources department to do the paperwork for new employees. The HR manager takes one look at you and says, “Oh dear! We can’t have this! You have blonde hair and we’ve just decided that at least half of our new employees must have brown, black or red hair. We are canceling your employment contract. You call the other companies who offered you employment and find that they have similarly changed their requirements.

In either case I’m sure you would be incensed that people would change the rules after the game is over. In fact in some countries any referee who made such an announcement after a soccer game would put his life in danger. Yet many of our judges make equivalent announcements in employment situations. Sonia Sotomayor, nominated for the Supreme Court is one of those judges. In the case of Ricci v. DeStefano, she and other judges allowed the rules to be changed after the game was over. This had the sole objective of disallowing a win by a group they did not want to win.

New Haven, Conn. had arranged for a test to determine which firefighters would be promoted to captain or lieutenant. That test was carefully designed to be job-related, exactly what we would want is it not? All firefighters eligible for promotion had the opportunity to study and learn the needed material, then take the test and compete for one of eight lieutenant or seven captain positions. After months of study, the pressure of the test, and the anxiety of waiting, the results were finally announced – and promptly nullified. The rules had been changed after the game was over.

Why were the results nullified? There was no question of fairness, all test takers had the same opportunity to study (including one dyslexic who had to work extra hard but qualified for promotion in spite of his difficulty). Nor was there any question of applicability, nobody questioned if the test was in fact job-related. No, the nullification was because some people did not like the outcome. Not enough minorities qualified for promotion so all the hard studying of all test takers was for naught. After it was over the city decided that the game was never played because they didn’t like the results. That was racial discrimination, pure and simple.

I find it unconscionable that a city would do such a thing and that any judge would allow it to stand. Yet Judge Sotomayor and other judges did allow it, in spite of a clear constitutional provision that equal protection under the law shall not be denied. How can they claim that it is equal protection when people of one skin color are protected from failure while those of a different color are forced into failure?

In my mind, this type of decision should prevent any judge from being promoted, especially to the Supreme Court. One of the most important functions of that court is protection of the constitution. When a judge allows such a flagrant constitutional violation, that judge should never even be considered for promotion.

The constitutional provision should be enough for the courts to overturn New Haven’s discriminatory ruling. However there are good reasons why the city should never have made such a decision, even had it been constitutional.

First is the issue of fairness to employees and the resulting adverse effects on performance. Firefighters, like most employees, perform better and have higher morale if they believe they are being treated fairly. If that is not the case, they will have low morale and little motivation to improve their skills and to go out of the way to do an outstanding job. Why spend all that time in hard, boring study if your employer is just going to ignore your improved skills? Why risk your life to save someone in a house or car fire if your employer is going to promote someone on the basis of an irrelevant characteristic such as skin color?

Second, from the point of view of a citizen, what kind of firefighters and fire department officers do we want? Suppose you are having a heart attack, or trapped in a house fire or a wrecked car with gasoline leaking. A fire truck approaches. Do you care about the skin color of the firefighters aboard? I wouldn’t. I don’t care if they are black, brown, white or green with purple polka dots. Nor would it matter to me how many are male and how many are female. It would matter a great deal that they be competent and dedicated to their job. Any employment or promotion considerations beyond that are discrimination and risk my life.

Allowing racial discrimination in public employment not only violates the 14th amendment to the constitution, it is also unfair to those employees and puts citizens at risk. Any imbalance should be addressed at the education level, not by discriminating against qualified people of any race. Judges who approve discrimination should never be promoted and could do the country a favor by resigning.