The Magazine

Reversing Sotomayor

The Ricci decision points to ongoing controversies about race.

Jul 13, 2009, Vol. 14, No. 40 • By TERRY EASTLAND
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The city's attempt at a valid defense, as summarized by Kennedy, was its "good-faith belief that [it] would have violated the disparate-impact prohibition . . . had [it] certified" the test results. Here Kennedy noted that Congress in enacting the disparate impact prohibition in 1991 made no such "good-faith" exception to disparate treatment liability. "Allowing employers," he wrote, "to violate the disparate-treatment prohibition based on a mere good faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact." Such a minimal standard, Kennedy said, could lead employers to throw out lawful and useful exams and hire and promote by the numbers, perhaps even with the intent of achieving racial balancing, which Title VII explicitly prohibits.

So it was that New Haven had no valid defense for its unlawful act of discrimination.

Yet this is not all there is to the Ricci decision. The Kennedy majority also undertook "to provide guidance to employers and courts for situations when [the] two prohibitions could be in conflict absent a rule to reconcile them."

Thus, the majority endorsed an approach taken from its constitutional cases--those saying that governments may remedy past racial discrimination by taking race-based actions but only when there is "a strong basis in evidence" that such actions are necessary. The majority also disagreed with New Haven's claim that even under "the strong basis in evidence test" its refusal to certify the results was allowed under Title VII: The city could point to the racially disparate numbers, but the tests themselves were job-related and consistent with business necessity, and the city didn't have an equally valid testing alternative that it had failed to adopt. Had the tests been otherwise, and such an alternative spurned, the city's belief that it would face a disparate impact lawsuit would have been valid and its discriminatory treatment of Frank Ricci and company excused.

Should there now be a push in Congress to overrule Ricci, it would doubtless seek to substitute a standard more easily met than the strong-basis-in-evidence test. It could be "good faith belief," which the Court rejected, or something seemingly more objective, like "good cause." But whatever it might be, it would likely tend to promote race-based action by employers--racial discrimination--if not at the slightest hint of disparate impact, then at a slight one nonetheless. De facto quotas--an explicit concern of the Ricci majority--would almost certainly enjoy protection.

In a brief concurring opinion, Justice Antonin Scalia made clear his own belief that the majority opinion was inadequate in its efforts to limit the racial discrimination that the disparate impact provision often produces. Ricci, he said, "merely postpones the evil day on which the Court will have to confront" a question it has never addressed--and which the mere raising of shocked Ginsburg--"Whether, or to what extent, are the disparate impact provisions of Title VII . . . consistent with the Constitution's guarantee of equal protection?" Here Scalia put his finger on another set of laws potentially in conflict, and one of more significance.

As Scalia explained, the disparate impact provisions of Title VII "place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies and to make decisions based on (because of) those racial outcomes"--decisions that will be discriminatory. Yet the higher law of the Constitution, as interpreted by the Court, demands that government, including in what it requires by statute of both private and public employers, treat all citizens equally as individuals and not as mere components of racial groups. Nor does it excuse racial discrimination on grounds of an ostensibly "benign" motive.

Where Ginsburg seems to anticipate a congressional overruling of Ricci, Scalia contemplates a case in which even the disparate impact law as interpreted by Ricci is subjected to constitutional review. A congressional response to Ricci that places a heavier "racial thumb on the scales" would only sharpen the conflict ("war" is Scalia's word) between disparate impact and equal protection, triggering litigation perhaps more quickly.

Not incidentally, and as a predictor of how Sotomayor might approach disparate impact cases in the future, she did not exactly demand much of New Haven. As Stuart Taylor of National Journal explained, the racially disparate exam results combined with the notion that minority firefighters might just file a disparate impact lawsuit were enough for her panel to rule in the city's favor. It didn't matter whether the exams were valid or the lawsuit could succeed.