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The Supreme Court's ruling in the Ricci case
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After reading the actual Supreme Court decision in Ricci, the statement I made in my post yesterday to the effect that, the Court, "drove a stake in the heart of “disparate impact” discrimination law theory…" was far too sweeping an assertion to make in light of the narrow basis for the court's ruling. In its holding in Ricci, the Supreme Court did not explicitly rule on the constitutionality of disparate impact theory itself, namely the legality under the Equal Protection Clause of the 14th Amendment of race-conscious remedies for situations where no discriminatory intent is present but nonetheless where the results of employer hiring/and or promotion policies, from a statistical standpoint, disproportionately impact minorities. While the court did not specifically rule on the constitutionality of disparate impact remedies, as Justice Scalia noted, the issue cannot be sidestepped forever.
The court, quite properly, limited itself to the specific and narrow issue before it: whether the fear of potential disparate impact lawsuits brought on behalf of minority firefighters who failed to achieve passing test scores was a sufficient basis for the city of New Haven to throw out the results of an otherwise racially-neutral and properly administered promotions exam. The court rejected this as a basis for the city's intentional discrimination against the white firefighters.
As Justice Anthony Kennedy explained, the city's "good faith belief" that it would be subject to disparate impact litigation:
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.
In establishing a standard for employers, Justice Kennedy wrote that the results of racially-neutral promotion tests can be rejected only if there is a “strong basis in evidence” to believe the employer will be liable under disparate-impact discrimination legal principles.
Even though the constitutionality of race-based remedies based on disparate impact was not addressed, what is the practical result of the court's ruling on employers? It should be noted that all members of the Supreme Court rejected Judge Sotomayor's legal reasoning to the effect that disparate racial results alone justified New Haven's decision to ignore the scores on the promotional exam without even inquiring into whether it was fair and job-related. Even Justice Ginsburg, as she argued in her dissent, would have required the city of New Haven to produce some evidence that the promotion test was invalid.
At a minimum, the holding in Ricci will require employers to be more circumspect before they ignore the results of promotion/hiring tests based solely on the disproportionate impact such selection criteria have on minorities. In short, bean counting alone after the fact will not suffice to justify discrimination against those who achieved passing scores on tests that can be shown to be racially-neutral and job-related. The fact that the desired outcomes were not achieved will no longer support throwing out merit-based criteria. Thus, the "strong basis in evidence" test elucidated by the court, will clearly have an impact on many organization's existing and planned hiring/promoting policies.
The statutory requisites of disparate impact provide that an employer's selection criterion that produce a disparate impact will be liable for unintentional discrimination only if (1) the test is not "job-related... and consistent with business necessity," or (2) the employer is presented with and refuses to adopt another, similarly job-related test with less disparate impact. The inherent problem with the statutory provisions of disparate impact law is that no test or basis for determining merit can ever be perfect and potential litigants could argue endlessly that another job-related test could have been administered that had less disparate impact.
As Stuart Taylor of the National Journal notes:
…racially disparate scores on virtually all objective tests are unfortunately the norm, not the exception. It's not hard to understand why: Studies have long showed that because of unequal educational opportunities and cultural differences, the average black high-school senior has learned no more than the average white eighth-grader -- and considerably less than the average white senior.
Of course, this would be no justification for basing promotions on test scores that have little relationship to the requirements of the job. But the New Haven exam was clearly job-related and carefully developed to insure race-neutrality, as the majority opinion of Justice Anthony Kennedy detailed.
The reality, acknowledged by the majority in Ricci, is that reverse discrimination is a concomitant aspect of every disparate impact decision or analysis. One of the reasons for the incoherence is that disparate impact theory doesn't concern itself with actual discrimination but rather inferred discrimination based purely on statistical results after the fact of employer hiring/promotion decisions. Since proponents argue that disparate impact is a remedial device for past discrimination, at what point in time does it outlive its usefulness? Yet, on this important question, many of those who argue for its legitimacy are content to maintain the practice in perpetuity.
The Supreme Court's decision did not address whether or not the government under the Equal Protection clause, can ever require third parties to intentionally discriminate based on disparate impact. But, the next time the issue is before the court, they will be faced with reconciling the irreconcilable.
The incontrovertible factual circumstance of the Ricci case lend credence to those who assert that no matter what its stated purposes were in theory, in practice, affirmative action — particularly the disparate impact provisions — has evolved into a doctrine that in some circumstances, concerns itself not with equality of opportunity, but rather, equality of result.
