Ricci: The Interaction of Disparate Treatment and Impact Discrimination

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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:


    (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:


    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.