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As someone integral to the hiring process at a public institution, I take particular interest in the New Haven firefighters' case, Ricci v. DeStefano.
I don’t want to address the specific facts of the Ricci case, since specific facts aren’t what Supreme Court decisions are (supposed to be) about. I want to try to figure out, based on this case, what employers are supposed to do when they use a criterion – any criterion – that may have a ‘disparate impact’ on minority candidates.
According to Title VII of the Civil Rights Act of 1964 (as amended in 1991), there are two varieties of unacceptable discrimination: disparate treatment and disparate impact. "Treatment" is the straightforward kind of discrimination that announces itself clearly, the "we don't serve your kind" variety. Treatment is assumed to be intentional. "Impact" refers to outcomes that may or may not have been intentional, but that have the effect of disadvantaging one group as against another. The Act stipulates that criteria that have disparate impacts are presumptively invalid, unless and until the employer can show 'business necessity' and a lack of better alternatives. (The employer also has to show that the business necessity is not 'pretextual' -- in other words, that it's not just a fig leaf to mask another agenda.) In this case, the City of New Haven threw out a written test it used to determine promotions within the fire department, on the grounds that the results of the test showed a disparate impact on minority candidates. The City feared that it would be held liable under the 'disparate impact' standard, so it threw out the test after it had been administered. Some white candidates who had done well on the test sued, claiming disparate treatment based on race -- arguing that whites were singled out on purpose -- and won, 5-4.
As Justice Kennedy correctly put it in the majority opinion, "[O]ur task is to provide guidance to employers and courts..." (p. 20) Exactly so. I'm looking for guidance. Let's say that I want to comply with the law, as delineated by the Court. What would compliance look like?
Justice Kennedy holds that actions taken to remediate disparate impact are themselves disparate treatment. Drawing on 14th amendment rulings -- although at pains to say that this case wasn't about the 14th amendment -- he allowed only a "strong basis in evidence" threshold for exceptions. In other words, unless you can show a "strong basis in evidence" that you're guilty of disparate impact, you can't engage in disparate treatment to remedy it. (As Justice Scalia correctly notes in his concurrence, Kennedy's opinion doesn't address whether 'impact' trumping 'treatment' can ever make sense in the first place.)
He doesn't define "strong basis in evidence," but it must be a pretty high threshold. I know that because the majority decision didn't remand the case for reconsideration under the new rule. Instead, it simply declared that the city couldn't possibly meet the standard, so it declared a winner and closed the argument. If you know already that the threshold couldn't possibly be met, it looks less like a threshold and more like, well, a pretext. After all, appellate jurisdiction isn't supposed to be about weighing the evidence. Since I have to assume that the Court knows that, I can only conclude that it decided that no amount of evidence could possibly suffice, by definition. It's pretextual.
The point of the pretext, as near as I can tell, is to render the Civil Rights Act unenforceable without actually overturning it. This becomes clear in the application. Let's say that my college does a search, and the applicant pool turns out to be almost entirely white. What, if anything, can the college do about it? If anything remedial amounts to disparate treatment by definition, and if the threshold for an exception is so high that no amount of evidence could possibly suffice, then what, exactly, is left?
I'm at a loss.
It gets worse. Later in the opinion Kennedy makes a point that the "strong basis in evidence" standard that might satisfy the Civil Rights Act, "we...do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case." (p. 25) So even if you somehow manage to thread the needle of the pretextual standard, the Court reserves the right to yank that away, too, using a different argument. The precedent is allowed to lean only in one direction.
Justice Ginsburg's dissent is a mixed success, but the line that jumps off the page is her confident, if somewhat resigned, declaration that "[t]he Court's order and opinion, I anticipate, will not have staying power." (p. 2 of dissent) To the extent that the Court's job is to provide "guidance," a declaration that the guidance won't have staying power doesn't inspire confidence.
As a hiring manager, I literally don't know what to do with this. I'm compelled by law to ferret out disparate impact, but forbidden by law from doing anything about it. Pre-emptive compliance with disparate impact will fail to meet the "strong basis" standard, since I can't prove I'd lose a lawsuit until I actually lost it. (As Kennedy put it, "[f]ear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." (p.33) I can't just be afraid of losing; I have to actually lose.)
Left unaddressed, tellingly enough, is whether the reverse would also be true. Could I defend a disparate impact claim by asserting a strong basis in evidence that I'd get nailed for disparate (compensatory) treatment? Who knows?
As a citizen, I have my preferred outcome, but that's secondary. As a hiring manager, my primary need is clarity. If I'm going to be held accountable for following the law, I need to know what the law is. I need guidance. At that -- at the first task of the Court -- this decision is a manifest failure.
