Orlando partner Kevin Shaughnessy appeared on the "AM Tampa Bay" news program on WFLA Fox newsradio on June 30, 2009, discussing the impact of the recent Supreme Court decision in the case of white firefighters who sued their city for reverse discrimination.
According to reports, the Supreme Court's ruling against the city of New Haven, Conn., which discarded the results of a firefighter promotion test after whites outscored minorities, is likely to affect employers nationwide trying to ensure that hiring practices do not exclude certain segments of society. City officials said they acted against the interests of the whites because they believed the test was flawed and they feared lawsuits from the blacks and Hispanics who failed to qualify for promotion. Supreme Court nominee Sonia Sotomayor was a member of the panel of the U.S. Court of Appeals for the 2nd Circuit that wrote the decision reversed by the justices.
Asked what impact the decision will have in the future for minorities trying to prove discrimination based upon racial hiring or promotions, Shaughnessy said, "I don't think it changes significantly the burden on minorities who are challenging a test they perceive to be unfair or discriminatory. They're still going to have to show a statistical impact that's adverse to minorities. And then the burden is going to shift to the employer—the city or private employer—to show that the test was job related and it was not otherwise discriminatory."
According to Shaughnessy, the city of New Haven "went out of its way" to ensure that the test was fair, including hiring outside monitors from around the country to come in and perform the interview process, in trying to account for the potential impact on minorities. "I think that's what the Court seized upon here," said Shaughnessy. "The Court not only rejected the legal analysis of the lower courts, the Court went on to conclude that there's no way the minorities could have challenged the exam because of the validation process."