Via Mark Thompson, Ilya Somin argues that today’s decision in Ricci will potentially open employers up to even more lawsuits alleging race-based discrimination.
Justice Kennedy’s majority opinion holds that an employer may not use race-conscious measures to try to avoid “disparate impact” liability under Title VII of the 1964 Civil Rights Act unless it “can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” A disparate impact lawsuit is a case alleging discrimination by the employer on the grounds that its hiring or promotion standards disproportionately disadvantage minority applicants, even if the employer wasn’t deliberately trying to discriminate against them.
The Court’s ruling makes life more difficult for employers trapped between the Scylla of Title VII disparate impact liability and the Charybdis of “disparate treatment” suits by white employees (“disparate treatment” suits are cases alleging traditional intentional racial discrimination). If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities. But if the business adopts race-conscious measures to try to shield itself from liability (e.g. – by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to “disparate treatment” lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.
To avoid this dilemma, business groups have long sought to persuade the courts to interpret Title VII to shield them from liability for race-conscious hiring policies that are intended to prevent disparate impact lawsuits. The Equal Employment Advisory Council, a group representing numerous large corporations and other businesses, filed an amicus brief in Ricci urging the Court to rule for New Haven for precisely this reason.
The five conservative justices weren’t buying that argument, however.
Not having had an opportunity to read Ricci yet, I won’t evaluate Somin’s argument–I just found it to be an interesting one.
