The effect of the United States Supreme Court's ruling last week in Ricci vs. DeStefano should not be understated: the decision threatens to undermine the vital function of the country's historic civil rights legislation.
Since its passage in 1964, Title VII of the Civil Rights Act -- the law at issue in the Ricci case -- has served as a guide for employers and employees. It prohibits employment discrimination on the basis of race and sex, among other characteristics. Plaintiffs can challenge an allegedly discriminatory employment action under two theories: disparate treatment and disparate impact. Under the disparate treatment theory, an employer intentionally engages in unlawful discrimination when it treats a member of a protected class, such as a woman or a racial minority, differently than a similarly situated person outside the protected class. The disparate impact theory of discrimination is used to demonstrate that a policy or practice that appears neutral on its face in fact has a negative effect on a protected group.
The Ricci case arose out of unique situation, never before decided upon by the Court, where a city's attempt to avoid disparate impact for one group was alleged to be an act of intentional discrimination against another. The Court rejected the City of New Haven's argument that its desire to avoid using a test that disparately impacted racial minorities and women was sufficient justification for throwing out the results of the exam which was used as the basis for promotions in the Fire Department.
The decision effectively creates a new, vague standard for proving a policy has a disparate impact. Before the Ricci decision, employers, upon discovering that a particular test or work requirement was inadvertently favoring one group over another were obligated and encouraged to take proactive action to tackle that problem. The majority opinion, however, asserts that employers now must have more than just statistical proof in order to justify canceling the test results or establishing a new policy. The Court determined that, in Ricci, the City's efforts to fix the disparate impact resulted in intentional discrimination against those that benefited from the unfair exam. In order for an employer to be justified in taking such an action, the majority explained, there must be a "strong basis in evidence" that the original policy was indeed resulting in disparate impact. The statistics demonstrating the imbalanced test results were not sufficient to meet this new standard.
Other than the vague words "strong basis in evidence," employers seeking to correct inadvertently discriminatory work practices, women and minorities who experience unfair conditions hiring or promotion patterns at their offices, and advocates for equitable, diverse workplaces are left without a map for addressing policies that are obviously putting some workers at a disadvantage.
If "statistics" -- often the most objective and clearest measure of a particular policy's or test's disparate impact -- are not sufficient initially to demonstrate disparate impact, one wonders what would be. We enter a bizarre world wherein an entry examination test could exclude 100% of qualified women applicants over years, yet the Court would not acknowledge that as de facto discrimination barring the existence of the Court's ephemeral "strong basis in evidence."
While employers are still bound by the mandate of Title VII to prevent discrimination at workplaces, the Court has created a standard of proof for disparate impact claims that is at best, impractical, and, at worst, contrary to the primary congressional intent of the landmark legislation.
These are not abstract concerns: as Justice Ginsburg noted in her dissent, despite honorable service to the communities, fire-fighting and police forces have a history of race and gender-based discrimination. While some industries and employers have proactively tackled discrimination in the workforce, others have been reticent to change. With the Court muddying the standard for demonstrating disparate impact, nudging these ambivalent and sometimes hostile employers along will become even more challenging for women and men of all races, who simply want a fair shot at success on the job.
Moreover, employers who, like the City of New Haven, find that a policy is unfair to a particular group, will find themselves paralyzed between a rock and a hard place, wherein they could be subject to a lawsuit if they fail to fix the policy, and equally subject to a lawsuit if they attempt to amend it. While the Supreme Court acknowledges their difficulty, it throws them no rope and offers no directions on how they should responsibly extricate themselves.
We can hope, in the word of Justice Ginsburg's dissent, that "The Court's order and opinion... will not have staying power." At some point, the Court must define, clearly, the meaning of "strong basis in evidence."
In the mean time, the only thing that is clear is that this decision will have an undeniably negative impact on working women and minorities who continue to need Title VII's protection and the employers who try to abide by that law.