Dear Emily, Linda and Walter:
There is a good deal of yipping in today's Ricci opinions about collision courses and what doctrine is on what kind of collision course with what other doctrine. It's a surefire way to confuse an issue when you insist that a failure to act swiftly and decisively will allow two constitutional worlds to collide in the manner of the aged Mr. Spock encountering the young Mr. Spock in the latest Star Trek movie.
Once upon a time, civil rights laws had two vehicles—one forbidding "disparate treatment" (overt racial discrimination) and one prohibiting disparate impact (discriminatory effects, regardless of intent). These two vehicles have been chugging along side-by-side for years, ostensibly to the same destination, until today, when they suddenly turned on each other and charged. Time and again in Justice Anthony Kennedy's majority opinion for the five justices who found a civil rights violation in New Haven's decision to toss out the promotion test results, one finds this language of damned if you do, damned if you don't: "Allowing employers 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." Or: "Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of 'practices that are fair in form, but discriminatory in operation.' … But it has also prohibited employers from taking adverse employment actions 'because of' race."
Justice Antonin Scalia sets up the constitutional smash-up to come even more apocalyptically, warning that the court today "merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?" The majority sees today's decision as the unavoidable consequence of using race to get beyond race, to paraphrase Chief Justice Roberts in his 2007 ruling about school desegregation.
The dissenters, on the other hand, don't see an imminent collision of two onrushing statutory vehicles, insisting that the majority alone is to blame for the smash-up. Justice Ruth Bader Ginsburg, in a dissent she read today from the bench, insists that the disparate-impact test is not the poor stepsister to the disparate treatment standard; indeed, it was adopted to work in tandem: "Title VII's original text, it was plain to the Court, 'proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.' "
She adds, "Neither Congress' enactments nor this Court's Title VII precedents … offer even a hint of 'conflict' between an employer's obligations under the statute's disparate treatment and disparate-impact provisions. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity."
The suggestion that from this day forward, an employer striving to comply with Title VII always risks running afoul of Title VII effectively turns the landmark civil rights law into a snake chasing its own tail. The statute, on its face, allows an employer to use race to get beyond race.
Sniffs Ginsburg, with many a scare quote: "To 'reconcile' the supposed 'conflict' between disparate treatment and disparate impact, the court offers an enigmatic standard and then explains how nobody knows what today's new standard, requiring a 'strong basis in evidence,' really means." To the extent there's a looming collision, she thinks, it's between the court's newly announced standard and the fundamental goals of Title VII.
Meanwhile, John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., writes in to tell me that none of this will change the general law of disparate impact at all:
It is important to note that the Court's ruling does not make it more difficult for minority plaintiffs to litigate against employers who have violated Title VII's disparate impact standard. For example, let's suppose African-American firefighters in Raleigh-Durham or elsewhere file a lawsuit tomorrow alleging that a promotional test has a disparate impact on racial minorities. The exact same legal standard would apply to their suit as applied prior to today's decision: Once they show a prima facie case of a disparate impact violation, the fire department would be liable for violating Title VII unless it can establish that the test is job related for the position in question and consistent with business necessity. And even if the employer makes such a showing, the African-American firefighters may still succeed by showing that a less discriminatory alternative practice is available. In other words, the end result of Ricci may result in a renewed push to vigorously enforce Title VII's disparate impact provisions by minority and women firefighters.
That's a radically different reading of the result than most folks have come to. Is Payton right? Is the snake that's chasing its tail in fact the Ricci opinion itself?