Since disparate-impact doctrine has been controversial since the Supreme Court first articulated it in 1971 in Griggs v. Duke Power, it is not surprising that some people propose to resolve the confusion created by the Ricci decision by essentially scrapping it. But even if you think this is a good idea, it is the job of Congress, not the courts, because disparate impact comes from a statute. In fact, the last time the court tried to gut disparate impact—in 1989 in Wards Cove Packing Co. v. Atonio—Congress responded by explicitly endorsing and strengthening the doctrine in the Civil Rights Act of 1991.
And Briscoe's case suggests why gutting disparate impact law is a bad idea. A promotion process that screens out well-qualified candidates and perpetuates past discrimination is both unjust and inefficient, even if it is formally evenhanded. As overt racism becomes less and less common, practices that reinforce the racial exclusion of the past have become the greatest impediments to equal opportunity. Disparate-impact doctrine allows us to dismantle these impediments without the finger-pointing that typically accompanies claims of intentional discrimination. We needn't hunt today for racists to blame in order to eliminate practices that needlessly perpetuate the racism of yesteryear. That's why the law against disparate-impact discrimination should appeal broadly—to zealous champions of social justice, beady-eyed utilitarians who just want the best person on the job, and jaded curmudgeons who are sick and tired of people playing the race card.
Correction, Oct. 23, 2009: The original sentence omitted the Hispanic plaintiff in Ricci's suit. (Return to the corrected sentence.)