Where Are We Now After Ricci V. Destefano?

Where Are We Now after Ricci v. DeStefano?

The Supreme Court's decision in Ricci v. DeStefano at the end of its 2008 term was the first in decades to deal with the question of what practices constitute discrimination under Title VII. This panel will explore the effect of the Court's decision, specifically the current state of the law on employment discrimination, the theory of discrimination that seems to have been adopted by a majority of the Court, and the future of employment discrimination and affirmative action.

Moderator: Professor Jeffrey Hirsch, The University of TennesseeCollege of Law

Speakers: Professor Marcia McCormick, Saint Louis University School of Law; Professor Michael Zimmer, Loyola University Chicago, School of Law; Professor Kingsley Browne, Wayne State University Law School; Professor Robert D'Agostino, Atlanta’s John Marshall Law School; Professor Harold Lewis, Jr., Mercer University School of Law; Professor Kimberly West-Faulcon, Loyola Law School Los Angeles

Ricci as a Disparate Treatment Case

By Michael J. Zimmer

In Ricci v. DeStefano, the Supreme Court gave us some lemons; my goal is to see if some lemonade is possible.
The lemons:
The majority, showing considerable sympathy if not empathy for the plaintiffs but not for the minority testtakers, easily found that New Haven had committed intentional, disparate treatment discrimination in deciding not to use the test results.
In doing so, the Court appears to have turned equal protection/antidiscrimination on its head if whites get primary protection from these laws designed to protect the historic victims of discrimination.
The lemonade:
Start from what appears to be the Court’s adoption of a color-blind standard of equal protection/antidiscrimination and see what that test can do for the historic victims of discrimination.
The color-blind standard:
In reversing a summary judgment for New Haven and granting one for the plaintiffs, the Court found disparate treatment based only on the evidence that the City knew the impact by race of the three affected racial groups – whites, African Americans and Hispanics – when it decided not to use the test results.
Members of all three racial groups would be affected whether the City decided whether or not to use the tests.
The Court accepted that the reason for the City’s decision was that using the test scores would result in an adverse impact to the minority testtakers.
Further, the Court accepted that there was no evidence of animus or intent to discriminate against the members of any racial group.
Based only on the evidence that the City knew the racial impact of using or not using the test scores, the Court held that New Haven acted “solely because of the race of the white testtakers.
In essence, that is a color-blind standard of disparate treatment liability.
How to use the color-blind standard to benefit members of groups that historically have been the victims of discrimination.
Ricci simplified the elements necessary to prove disparate treatment to two:
The employer knew the race of those affected by the decision.
The plaintiff was adversely affected by the employer’s decision.
This simplified proof structure strips away the complexity of proving defendant’s intent to discriminate by reducing the intent question to a simple factual question of the defendant’s knowledge.
Iqbal and Twombly pleading standards are easily satisfied.
Many more discrimination cases should survive summary judgment and go to trial.
The key to the meaning of Ricci may well rest on who the plaintiffs are in the next Ricci-type case that gets to the Court.
If confronted with minority plaintiffs, will the Supreme Court blink on the new, Ricci color-blind standard?

Tests, Merit, and Racial Exclusion: Reading Ricci

By Kimberly West-Faulcon

The “New Haven 20”: Ricci Plaintiffs Allege“Reverse Discrimination”

Basic Arguments in Ricci
Plaintiffs: 19 White firefighters and 1 Latino firefighter claim failure to rely on test violates (U.S. Const.) & Title VII DT provision

Defendants: New Haven city officials claim failure to rely on test = necessary to comply with Title VII DI provision

Pre-Ricci key question = When does using a test violate fairness principles or federal civil rights law?

Post-Ricci a new question is raised = When does NOT using a test violate fairness principles or federal civil rights law?
Ricci’s implicit presumption: the firefighters with the highest test scores were the most qualified for the job . . .

Ricci’s conclusion: the New Haven firefighter exam was best-available measure of job-related merit . . .

In Ricci: Racial Difference in “Merit” justifies Disparate Impact

In Ricci: Racial Difference in “Merit” justifies Claims of “Reverse Discrimination”

Presumption that Ricci plaintiffs were the most “meritorious” is the driving force in the Ricci majority opinion
Disparate Impact (against people of color) = RACIAL EXCLUSION NORMALIZED
AND
“Reverse Discrimination” claims (by rejected whites) = OVER-REPRESENTATION ENTITLEMENT
Competing Explanation for Racial Differences in Test Scores:

The River Runs Dry: When Title VI Trumps State Affirmative Action Laws, Kimberly West-Faulcon, 157 U. Pa. L. Rev. 1075 (2009) (articulating “minority deficiency” or “test deficiency” as justifications for disparate impact of use of SAT scores)

“Test Deficiency” Explanations: racial differences in tests scores result from flaws in measurement-capacity of mental tests. Id.
“Minority Deficiency” Explanations: racial differences in test scores are accurate measures of racial disparities in mental ability. Id.

Ricci’s “Tests = Merit” Paradigm (“Folk” Understanding of Intellectual Merit)
Racial Gap in Test Scores = (Justifiable) Racial Exclusion

Most Qualified = Best Test-takers = Intelligence ≠ Racial Diversity

Important Missing Framing #1:
Mental Tests (promotional exams) are= merit-measuring technology
Is the testing technology designed and being used properly?

More Intelligent Design: Testing Measures of Merit, Kimberly West-Faulcon, 13 U. Pa. J. Const. L. __(2011) (arguing that consideration of mental tests should be conceptualized as technology that can be improved).

Important Missing Framing #2:
Title VII Disparate Impact Provision is= (“racially attentive”) merit-enforcing legislation
Title VII asks: 1) Are test results racially-skewed? AND 2) Does highest test score = “greatest job-related merit”?
Reading RicciRicci’s Mistakes →

Title VII DT: ignores McDonnell Douglas→

Title VII DI:fails to remand for Griggs’ business necessity and LDA analysis→

Ricci’s New Rules
Racially selective application of McDonnell Douglas = (“whitening discrimination”)

Treat (racially attentive) merit-enforcement as “virtual” affirmative action (SBE) = (“race-ing” test fairness)

Reading Ricci: Whitening Discrimination, Race-ing Test Fairness, Cheryl I. Harris and Kimberly West-Faulcon, 58 UCLA L. Rev __ (2010)(replacing “colorblindness” with more robust concepts of “racial attentiveness” and “racial inattentiveness”).

Important Missing Framing #3: “The New Haven 13+”
Missing from Ricci: noacknowledgement that “Victims” of use of tests that fail to measure job-related merit include:
a) Black and Latino firefighters (may have a Title VII DT or DI claim)
b) Black female and White female firefighters (may have a Title VII DT or DI claim)
c) White male firefighters (state law claim?)
d) citizens of New Haven (policy claim)
e) even some members of “New Haven 20”

Ricci – What Now?

By Robert J. D’Agostino

We do not know what a Supreme Court decision really means until lower courts apply its holding.

Possible Significance

Is it a prelude to holding race conscious decrees and remedial orders, that are, essentially, agreements or judicial requirements for proportional representation unconstitutional under either or both Title VII and the Equal Protection Clause?

Is it a decision that signals that Title VII’s prohibition of intentional discrimination (disparate treatment) can be more easily used against those seeking social results? The Court states that “respondents own arguments…show that the city’s reason for advocating non-certification were related to the racial distribution of the results. Without some other justification, this express race-based decision making violates Title VII command that employers cannot take advance employment action because of an individual’s race.”

Has the Court indicated, contra to the Civil Right’s Restoration Act of 1991 that it shifted the burden, to a limited degree and so far as it can, back to the usual plaintiffs by rebalancing disparate impact and disparate treatment? This is accomplished by making it clear that statistical evidence without more is not enough for a prima facie case. This may mark a continuation of the move away from a results oriented approach.

Is the implied “null hypothesis” that all groups are equal being implicitly questioned?

Lower Courts

NAACP v. North Hudson Regional Fire and Rescue, 109 Fair Employment Practices (BNA) 262 (2010). The court remanded on the issue of whether a city’s use of residency requirements for hiring violates Title VII. The business necessity defense seemingly would apply. Note that an expanded geographical area would adversely impact Hispanics and benefit African-Americans.

The Defendants argue that “Ricci conclusively states that raw statistical date-the very kind that Plaintiffs employed to support their request for a preliminary injunction-does not create a strong basis in evidence of disparate impact liability. … This contention is simply premised on a misreading of Ricci. In Ricci, the Supreme Court instructed that a statistical finding of disparate impact, on its own, did not form a strong basis in evidence that the employer would be subject to disparate impact liability. 129 S.Ct. at 2678. There, the Supreme Court accepted that the City had made out a prima facie showing of a statistical disparity. The Ricci Court found that the City failed to proceed to the next step, which would be examining whether the practice is job related for the position in question and consistent with business necessity.”

Cleveland Fire Fighters For Fair Hiring Practices v. City of Cleveland ( N.D. Ohio, Eastern Division. August 20, 2009 Slip Copy). The court terminated its supervision

stating that:

[T]his Court seeks fairness for everyone, regardless of race. As such, the Court must examine whether a bona fide job-related examination that is nondiscriminatory could satisfy the goals set forth in the Second Amended Consent Decree, absent continued Court intervention.

This question is not dissimilar to one arising recently before the United States Supreme Court. On June 29, 2009, the Supreme Court examined a difficult question arising in unemployment discrimination law in the matter of Ricci v. DeStefano, --- U.S. ----, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009).

. . .

As in Ricci, what is integral here is the administration of an examination, as part of an overall hiring process, that is fair to all people-regardless of race. The Supreme Court’s decision in Ricci reminds us of how far we have come from the origination of affirmative action in 1960s. Places such as the Cleveland Fire Department, which were virtually all white, now more closely mirror the population within the City. Progress has been made, but the judiciary continues to struggle to find the proper balance to ensure equal opportunity between minorities and non-minorities alike. Ricci calls to mind what this Court noted in Rutherford, that its decision with respect to the necessity or propriety of race-based remedies has a wide-ranging impact on everyone’s lives, regardless of the color of their skin.

. . .

The United States Supreme Court examined the issue of long-standing consent decrees recently in Home v. Flores, No. 08-289, slip op. (June 25, 2009). There, the Supreme Court recognized that long-standing consent decrees are not immune from reexamination, stating that “[i]njunctions of this sort bind state and local officials to the policy preferences of their predecessors and may thereby improperly deprive future officials of their designated legislative and executive powers.” Id. at 12 (internal quotations omitted). It stated that, “Scholars have noted that public officials sometimes consent to, or refrain from vigorously opposing, decrees that go well beyond what is required by federal law.” Id. at 11. As such, this Court is not constrained to extend the terms of the Second Amended Consent Decree simply because it inherited the long-standing agreement. See id. at 11-13.

Carroll v. City of Mt. Vernon, 2010 WL 165 7409 (S.D.N.Y.)

In construing Ricci, the Court stated that:

Without some other justification, this express, race-based decision making violated Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.” Id. The real issue before the Court, however, was whether such a race-based employment action was permitted when it was taken in a good faith effort to avoid disparate-impact liability.

. . .

But, the issue was would promotion of white candidate violate the Consent Decree. Therefore, if Ricci is read narrowly to apply only where an employer acts to avoid disparate-impact liability, it is not controlling in this case. Even if I were to read Ricci broadly to mean that an employer cannot take “race-based” action in an effort to avoid any sort of liability, Ricci is distinguishable.

The consideration of liability caused a long enough delay to prevent the promotion of a white candidate.

Is the Court suggesting that it will no longer countenance third parties (judges, EEOC bureaucrats) deciding that a certain group should be privileged because of race or ethnicity to the detriment of another group regardless of individual merit? The Court majority, using its opportunity, made clear that the use of valid criteria must be central to decision making for hiring and promotion, not statistical balance.

Ricci v. DeStefano, Disparate Impact and Equal Protection

By Marcia McCormick

Our prior speakers focused on the two main issues in both the majority and dissenting opinions: disparate treatment discrimination and disparate impact discrimination. I’m going to focus on a third issue raised only by Justice Scalia in concurrence, and that is whether Title VII’s disparate impact provisions might violate the equal protection guarantee that is part of the Fifth Amendment.

The constitutional issues surrounding the disparate impact theory of discrimination have evolved significantly over time. First the question was whether equal protection embodied disparate impact. Most people assumed yes, but the Supreme Court said no in 1976 in Washington v. Davis. Second, the source of Congress’ power to prohibit disparate impact discrimination was called into question with the so-called federalism revolution. Only if it was within Congress’ power under Section 5 of the Fourteenth Amendment could disparate impact legislation be applied to the states consistent with the Eleventh Amendment. That issue was discussed but not resolved. The question in Ricci goes one step further: to the extent that the prohibition on disparate impact discrimination requires employers to take race conscious action, can Congress enact it consistent with the Fifth Amendment’s guarantee of due process?

Justice Scalia likely has at least two other votes (probably three, and in at least some circumstances maybe four) to say that the prohibition of disparate impact discrimination is race conscious and can only be enacted to remedy a history of demonstrated disparate impact by employers.

Continuing the theme of change with the passage of time since the civil rights era, there are now a number of tensions in the employment discrimination context that only seem to grow. And we’re left with many questions:

Is disparate impact race conscious in the sense Justice Scalia and the majority seem to think?

How can this be reconciled with prior Supreme Court opinions upholding voluntary affirmative action by employers?

As we get further in time from the civil rights era and highly visible public displays of race discrimination, does that mean there is less validity for Congress to mandate that employers avoid disparate impacts?

In the end, much in this area seems to be about framing the issues—a task that is harder for supporters of Title VII with the passage of time because even if at one time we had consensus, we no longer do on these fundamental issues:

What is discrimination/Equal Protection?

Is disparate impact discrimination—or at least discrimination that should be illegal?

Is disparate impact affirmative action?

Is affirmative action insurance against discrimination, a remedy for past discrimination, a remedy for social discrimination?

Is there a tension between group-based harms and individual harms?

Do Equal Protection or Title VII embody anti-subordination principles or formal equality principles alone?

What’s All This Fuss About Ricci?

by Kingsley R. Browne

Many of the arguments against Ricci are overwrought. Despite attacks on the doctrine that it announced, conceptually the majority and dissent were not that far apart. Ricci actually announced for the first time a new defense to disparate-treatment claims. Moreover, despite claims by some, Ricci did not modify the disparate-treatment prima facie case.

Argument: The Majority Dramatically Rewrote Discrimination Law.
Majority vs. Ginsburg Dissent: No real conceptual disagreement. Both agree that an employer who discards a test because of its racial result must show that there was some likelihood that it would be held liable for disparate-impact discrimination.
Majority: In order for the employer to discard a test because of its racial result, there must be “a strong basis in evidence of disparate-impact liability.”
Ginsburg: In order for the employer to discard a test because of its racial result, “the employer must have good cause to believe the device would not withstand examination for business necessity.”
So “strong basis in evidence” versus “good cause.” What’s the difference?
Perhaps a big one in practice. The majority was probably concerned that many employers would use fear of disparate-impact liability as a pretextual justification to achieve the proportional representation that they can’t seek under Croson.
Given the uncertainties and ambiguities in disparate-impact law, it will always be relatively easy to find an expert to criticize what employer has done, as in Ricci, where the expert was a competitor of the company that designed the test. Presumably, a statement “I could have done better” would give employer “good cause” under Justice Ginsburg’s standard.
Argument: Disparate-impact and disparate-treatment have never been thought to clash before.
It is true that conflict doesn’t usually come up, but the Court simply hasn’t had a case that presented the issue so squarely. Conflict doesn’t come up in the “usual case”, e.g., IF
New Haven had gone ahead and certified the results of the test and then been sued by minority firefighters, OR

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