Ricci: The Interaction of Disparate Treatment and Impact Discrimination

Until Ricci, the interrelation between intentional disparate treatment discrimination and unintentional disparate impact discrimination had not been worked out very thoroughly by the courts. Nevertheless, as Justice Ginsburg put it in her dissent, no conflict existed between the two theories:

 “Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) 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 work place discrimination and promoting genuinely equal opportunity.” 

In the pre-Ricci period, employers were tasked with not making employment decisions with an intent to discriminate. Acting based on knowing the race of the individuals affected by the decision, however, was not sufficient proof that the employer acted with an intent to discriminate. At the same time, the employer was also tasked with avoiding using employment practices that had a disproportionate impact on members of minority groups unless that practice was job related and consistent with business necessity. Knowing the racial consequences of the use of an employment practice was the first, and necessary, step toward avoiding disparate impact liability. But an employer, acting with that knowledge did not trigger disparate treatment liability without more. So, as long as the employer did not act with an intent to discriminate against anyone on the basis of race, it avoided disparate treatment liability and, if it acted on the known racial consequences of its employer practices to avoid disparate impact liability, that was not disparate treatment discrimination.

What created the conflict between the two concepts that emerged in Ricci is the new notion that acting with knowledge of the racial consequences of the decision is acting with  an intent to discriminate, at least in certain circumstances. In Justice Kennedy’s view, the employer does not act with an intent to discriminate, if, before a practice is used, the employer undertakes to review its likely racial consequences in order to shield itself from disparate impact liability. If, however, the employer has used the practice and its use has created reliance interests in others, it is too late to abandon the outcomes of that practice because that is disparate treatment discrimination unless the employer has a “strong basis in the evidence” of its disparate impact liability if it went ahead and use the practice.  

Ex ante, it is, of course, not always clear whether the future use by an employer of a particular practice will, or will not, result in disparate impact discrimination. But, it appears that investigating the potential impact, which requires that the employer know the racial makeup of the group that would be subjected to the practice, does not trigger disparate treatment discrimination. It is only after the practice has been used and it creates legitimate reliance interests that the employer commits disparate treatment by attempting to at that point act to avoid an adverse impact on a group protected by Title VII. Once the employer starts to use the practice and people have some reliance interest created by its use, then, if the employer knows the racial consequences of its use, it is too late to decide to avoid disparate impact liability by acting in a way that defeats those reliance interests. Undermining those reliance interests amounts to disparate treatment discrimination unless the employer has “strong basis in the evidence” of it vulnerability of disparate impact liability. If that evidence is lacking, the employer is liable to those with the reliance interest and, presumably, it is also liable to those who are members of the group that suffered the adverse impact by the use of the practice if those plaintiffs can prove their case. In other words, the employer is dammed if it does, and dammed if it doesn’t.

So, what is an employer to do?  Presumably, before an employer begins the use of anything the Title VII law would characterize as “an employment practice,” it should determine as best it can whether or not its use will result in some disparate impact to some member of a protected group. If the employer determines that a prima facie case of impact could be made out, then it has to decide whether or not to do something different to avoid the impact. In making that decision, there is no role for the “strong basis in the evidence” rule since the employer ex ante does not actually know the racial consequence of a practice yet to be used and no reliance interests have been created.  It would be quite strange if anyone would have a reliance interest in the mere chance that an employer might use some practice, even if it is likely that one group or the other would do well if that practice was adopted and used. Simply, they would not have suffered an “adverse employment action.”  

Once the employer begins use of a particular practice to make employment decisions, even if those decisions are made in a race blind way, the employer is likely to come to know the racial consequences of those decisions but it faces disparate treatment liability if, at that time, it acts in ways that defeat the reliance interests among those who would be favored if the results of the practice were not used. It is in this situation where the employer would need a “strong basis in the evidence” that it would face disparate impact liability to defend its action that undermines the reliance interests created by the use of the practice in the first instance. Because the Supreme Court so easily found that the City of New Haven failed in carrying that burden, as a matter of law without trial, the burden on the employer is quite difficult.

The subsequent litigation in Briscoe v. City of New Haven, will work out whether a disparate impact plaintiff can succeed in establishing liability even though the City failed, in its defense to the Ricci disparate treatment case, to establish a “strong basis in evidence” that it would lose just such a case. Further, the disparate treatment claims of other African-American testtakers to challenge the City’s announced intention of implementing the promotions of the Ricci plaintiffs will further be the basis for working out the relationship between disparate treatment and disparate impact claims.

The simplicity of the pre-Ricci has been replaced by this new, more complicated and risky set of relationships between disparate treatment and disparate impact doctrine. In other words, Ricci is a gift of the Supreme Court that will keep giving, at least to lawyers counseling employers to avoid this new, more complicated map of Title VII liability. The other side of this is that this new regime established in Ricci will be a trap for the unwary and those without good counsel advising them.

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7 Responses

  1. RJ says:

    Compounding his earlier mis-statements about what Title VII actually says regarding the cirumstances in which disparate impact liability may be imposed on an employer, Zimmer this time mischaracterizes what Justice Kennedy said in the Ricci opinion. Justice Kennedy did not say, as Zimmer claims, that it was permissible for a employer, in designing tests, to consider the “likely racial consequences” of it. What Justice Kennedy SAID was that the court did not question an employer’s “affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made.” Leave it to a liberal like Zimmer to remake Kennedy’s statement into something else so he can purport to cite a theoretical problem with it. Moreover, Justice Scalia made clear his view that an employer would act unlawfully if it, in the planning stage, intentionally designed a test or selection procedure as a back door means to achieve racial quotas. As for Zimmer’s expectation that that the Briscoe action and the second action brought by the black firefighters will “work out” Zimmer’s propositions, Zimmer is fantasizing, or serving as a willing shill for those litigants’ lawyers who are fantasizing. Both actions should and will be dismissed. And if they are not, many will gladly use both of them to tee up for the Supreme Court the very issue that Justice Scalia believes should be resolved.

  2. AF says:

    RJ:

    (1) The only fair reading of Justice Kennedy’s opinion is that Title VII permits employers to consider the racial impact of a test before the test is administered.

    (2) Justice Scalia’s concurrence (and Kennedy’s opinion) acknowledge that the Court has not reached the question of whether Title VII’s disparate impact provisions are unconstitutional. All the Court has said is that Title VII permits consideration of race, but that once a test is given, it can only be abandoned for race-conscious reasons if there is a strong basis in evidence to believe that proceeding with the test will violate Title VII’s disparate impact provisions.

    (3) That said, I do think that Kennedy intended to avoid the “damned if you do, damned if you don’t” implication of Ricci by telegraphing that in his view a disparate impact claim would fail. That statement is pure dicta, and moreover is uninformed by any evidence presented by the Briscoe plaintiffs, so Professor Zimmer is correct as a formal matter that the issue remains to be worked out. However, I fear RJ is also correct that if the Briscoe plaintiffs prevail in the lower courts the Supreme Court would reverse — if New Haven decided to seek cert.

  3. RJ says:

    The problem I have is with your broad cast of Justice Kennedy’s words as “dicta”. Under your view, virtually everything Kennedy said in that opinion could be dismissed as dicta. I don’t think it flies here for the SC by its own acknowledgement was called upon (by New Haven’s very defense)to decide what the city’s Title VII liability and duties were/are in respect to the very exam process and selection procedure that is the subject of the latest actions by black firefighters. Zimmer keeps citing Ginsburg’s dissent in arguing that the competing claims can proceed and peacefully co-exist with the Ricci plaintiffs’ judgment – but Ginsburg is a dissenter. Citing the dissent for your propositions is a loser’s game. The SC adjudicated New Haven’s Title VII liability in that matter fully and finally. Zimmer’s suggestion that some lower court can now entertain a new action, the admitted aim of which is to gain a conflicting liability determination in the same matter is just nuts. Zimmer’s clinging to Ginsburg’s dissent is not only useless (because Ginsburg’s views lost out) but ignores the fact that Ginsburg was complaining about exactly what I just noted – the majority’s decision not to remand the case with an open question on liability. Zimmer is arguing for that which Ginsburg sought and failed to get from the majority. The case is over and Zimmer and like-minded others disgruntled over should get over it.

  4. AF says:

    RJ:

    As I said, I tend to agree with you that Justice Kennedy’s intention was to preempt a disparate impact suit by the minority plaintiffs and that the Supreme Court would dismiss any such suit if given the opportunity.

    It’s important to remember, however, that Ricci was decided without the participation of disparate impact plaintiffs and without discovery as to their claims. Also, the question at issue in Ricci was not whether promoting based on the tests would have a disparate impact, but whether New Haven had a strong basis in evidence to believe that. It is possible for the Briscoe plaintiffs to produce evidence of disparate impact that New Haven did not have at its disposal. It would be inconsistent with principles of res judicata and due process for a district court to hold that a claim by the disparate impact plaintiffs is foreclosed by the Court’s findings in Ricci.

    The only way for a lower court to dismiss the Briscoe plaintiffs’ claims without discovery would be to read into Ricci an implicit weakening of disparate impact law –a holding, essentially, that any professionally designed test that asks questions related to the job is lawful, regardless of the scoring method or the available alternatives. Such a holding would be inconsistent with the text of Title VII and case law (including Supreme Court case law) interpreting it. And it is certainly not the explicit holding of Ricci, which purports to apply existing disparate impact law rather than change it. But it does seem to be what the Court assumed the law to be.

  5. RJ says:

    The complaining minorities knew what the scoring and selection methods were before the exam was given. That is announced beforehand. It had been in place for years. If you claim, as Briscoe does, that a procedure that uses written exams violates Title VII because written exams are known to have a disparate impact on blacks and further claim belatedly, as Briscoe has, that they are not a good measure of qualifications, I’d say Briscoe will have a hard time justifying waiting five years to make the allegation. Otherwise, he is just a “let me see how I did first” guy and that is not likely to fly.

  6. RJ says:

    Update – this just came over the AP wire – judgment entered for the plaintiffs and they’ve been ordered promoted by the lower court in accordance with the SC judgment.

    http://news.yahoo.com/s/ap/20091125/ap_on_re_us/us_firefighters_lawsuit