September 19, 2014

Lawyer says Supreme Court ruling in state descrimination case has some positives

The Iowa Supreme Court upheld a Polk County District Court ruling that determined the State of Iowa did not discriminate against African-Americans in their hiring and promotion practices. Attorney Tom Newkirk had argued in the class action suit that the mostly white managers had an implicit bias against African-Americans.

Newkirk says he is not surprised by the Supreme Court ruling, but says the justices did not totally overlook his arguments. “But it was also surprising and mildly heartwarming to see the court in a unified way express how Iowa law is different, how it is going its own way from the federal system to some extent, and how the court has acknowledge not only the risk of implicit and subconscious forms of bias in our society, but also the role that they may play in generating inequality in our system,” Newkirk says.

The Supreme Court acknowledged discrimination may have occurred, but said the arguments didn’t convince the court it was widespread throughout 37 departments in the state. The ruling did indicate the court may be sympathetic to implicit bias cases in the future. “It’s funny when you read an opinion like this you think, ‘well maybe the lawyers should have taken a different tactic is that what they are telling them?’,” Newkirk says. “But I think that the answer is, noone would have predicted not even myself, that the court would be suggesting that Iowa may go the way of what’s called maybe a negligence theory,” Newkirk says.

The case was first brought in 2007. Newkirk doesn’t believe anything has changed in the years the lawsuit has been making its way through the court system. “I would say almost without fear of contradiction — that other than platitudes and that state saying it is been making continual improvements — that there have been zero substantive changes to how the state runs its hiring and promotion system from the time we exposed this problem to them, to the present day,” according the Newkirk.

He says the Supreme Court ruling suggests the state remains open to more legal action. “Unless they want some other law firm coming in and applying some new theory to it, they need to get on the stick and get it fixed,” Newkirk says. “We’ve offered to help them for the last seven years to get it fixed, but they have continued to ignore us. And I am fearful that they will continue to do so.”

Iowa Solicitor General Jeff Thompson says since the suit was filed, Iowa has worked to make hiring more objective. “Justice Waterman points out that some of the statistics raise questions. We’re aware of that, we’ve been working on that, and we’ve been actively perusing improvements in the hiring process to address those issues,” Thompson says. There are 29 named class members in the lawsuit and as many as 6,000 members involving over 20-thousand employment applications going back to 2003.