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Ricci: the majority’s way, the dissenters’ way, and Sotomayor’s way

Title VII of the Civil Rights Act of 1964 bars employers from using facially neutral selection devices (such as tests) that disproportionately exclude minority group members, unless the device “is job related for the position in question and consistent with business necessity.” And even if the selection device satisfies this “business necessity” standard, it is still unlawful if the plaintiff can show that the employer refused to adopt an available alternative device that has less disparate impact on minorities and serves the employer’s legitimate business needs. The discrimination that can be found as the result of this analysis is called “disparate impact discrimination.”

In Ricci, the Supreme Court was called upon to decide whether, or under what circumstances, an employer can discard the results of a facially neutral selection device in order to favor members of a particular racial group, where the purpose of doing so is to avoid a potential claim of disparate impact discriminaton. The City argued that employers should be able to do so where they have a “good faith belief” that this step is necessary to avoid liability for disparate impact discrimination.

The Ricci majority rejected this view. Justice Kennedy explained that the “minimal standard” advocated by the City

could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system in which a focus on statistics could put undue pressure on employers to adopt inappropriate prophylactic measures.

This is the heart of the matter. For more than 30 years, since my days as a government civil rights lawyer, important elements of the civil rights community and the civil rights bureaucracy have wanted employers to relax their standards to the extent necessary to guarantee that minorities enjoy proportional representation in the workplace. This urge has increased over the years, as it has often seemed that no matter how hard employers try to create tests and other selection devices that will not adversely affect minorities, they continue to come up short (or, stated differently, minorities continue to come up short on the tests).

For example, in the New Haven case, the city took testimony from a professor at Boston College whose area of “expertise” was “race and culture as they influence performance on tests and other assessment procedures.” Declining even to look at the City’s exam, she testified that no matter what test the City had administered it would have revealed a disparity between blacks and whites, as well as Hispanics and whites, particularly on a written test. In the 1960s, liberals would considered such a claim to “racist.” These days, some liberals liberal rely on it.

Today’s decision represents a setback to those who would impose a de facto quota regime. Employers will not be allowed to throw up their hands and abandon selection criteria merely because the criteria have an adverse impact on minorities and they don’t feel like being sued (or in the case of political entitiies, because they want to favor, or curry favor with, minority groups and cite the risk of litigation as an excuse for doing so).

Under the standard articulated for the majority by Justice Kennedy, an employer may discard the results of a selection device that would have an adverse impact on minorities only if the employer has a “strong basis in the evidence” to believe that using the selection device would cause it to violate Title VII by engaging in disparate impact discrimination. Thus, the employer must have a strong basis in the evidence to believe that (1) using the device will result in disparate impact and (2) the test cannot be justified under the job relatedness/business necessiity standard or (3) there exists an equally valid, less-discriminatory alternative selection device that it refused to adopt.

Justice Ginsburg, in dissent, argued for a more lenient standard than the majority’s “strong basis in the evidence” test. The dissenters would uphold the discarding of results from a test with a disparate impact where “the employer has good cause to believe the device would not withstand examination for business necessity.” Depending on how this standard were applied, it could perhaps be sufficient to avoid a de facto quota system, and Justice Ginsburg made a point of claiming (albeit not very persuasively) that her standard would, in fact, avoid that result.

In any event, even the dissent’s more lenient standard is a departure from that endorsed by Judge Sotomayor. As Justice Ginsburg wrote in footnote 10, “the lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act.” In other words, Judge Sotomayor refused to demand even that New Haven have “good cause” (never mind a strong basis in the evidence) to believe that it was vulnerable to a meritorious suit for disparate impact discrimination, before depriving the white firefighers of promotions they would have received had they been black.

It is not encouraging that Judge Sotomayor showed less concern than the four liberal Justices for protecting white employees from being treated differently from other employees based on their race, and for avoiding a de facto quota system. Nor is it encouraging that Judge Sotomayor reached this result without appearing to engage the issue, through a summary order that may well have been intended to bury the claims of the white firefighters. But such is the jurisprudence of the “wise Latina” jurist President Obama has nominated for the Supreme Court.

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