Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In his concurring opinion in Ricci v. DeStefano (2009), Justice Scalia wrote: "[T]he war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them." Justice Scalia's point was that Title VII affirmatively requires remedial race-based employment actions when a disparate-impact violation would otherwise result but that constitutional equal protection forbids the federal government from requiring employers to engage in racial discrimination.
The "evil day" (Scalia's words) on which the Supreme Court will confront this tension might still be a long way off. But the U.S. Court of Appeals for the Second Circuit has already confronted a different conflict--one that Ricci itself has created.
A brief recap: In Ricci, White and Hispanic firefighters claimed that the City of New Haven's refusal to certify results of a promotional test in which no Black firefighter received a sufficient score to be promoted constituted disparate treatment under Title VII. In an opinion by Justice Kennedy, the Supreme Court agreed with the plaintiffs, notwithstanding the city’s argument that it refused to certify the results because if it did so it would face Title VII disparate impact liability. The Court held that “before an employer can engage in intentional discrimination . . . [it] must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”
The Court did not remand the case to determine if the "strong basis in evidence" existed but instead ordered that the New Haven test results be certified. And the plaintiffs recently settled their lawsuit with the city.
Nonetheless, Michael Briscoe, a Black firefighter (and unsuccessful test-taker) brought a Title VII disparate impact claim against the city, challenging the use of the test at issue in Ricci. The district court dismissed Briscoe's claim on the ground that by ordering certification of the test results, the Supreme Court had closed the door to a future disparate impact lawsuit against New Haven.
A panel of the U.S. Court of Appeals for the Second Circuit has now reversed that district court ruling and reinstated Briscoe's disparate impact claim. The panel rejected the city's argument that Briscoe's claim was barred under rules of preclusion (Briscoe was not a party in the Ricci case). It also held that neither Title VII nor Ricci's interpretation of it barred the lawsuit.
But Ricci cast some doubt about the correct result. Although Ricci's "strong basis in evidence" standard was developed in the context of a fear of disparate impact excusing disparate treatment, the Supreme Court's opinion contained this curious passage: "If after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability."
In seeking dismissal of Briscoe's case, New Haven argued that this passage meant what it sounds like: the "strong basis in evidence" rule applied both to disparate treatment and disparate impact and Briscoe's disparate impact claim had to be dismissed because the Supreme Court itself had found the city actually liable for disparate treatment--thus excusing any disparate impact.
The Second Circuit panel disagreed with the city's reading. Instead, the panel said, in context, the quoted language was simply a conclusion derived from the actual holding of Ricci and it did not stand for a parallel rule of strong basis in evidence of disparate treatment to excuse disparate impact. Moreover, the panel thought it impossible to reconcile the city's preferred reading with the actual holding of Ricci (which was all about excusing disparate treatment) or with Title VII jurisprudence. Among other things, the panel found it difficult to identify what sort of evidence--besides a judgment from the Supreme Court--would constitute a strong basis in evidence of disparate treatment. Thus while admitting that "we cannot reconcile all of the indications from the Supreme Court in Ricci," the Circuit panel concluded that Briscoe's disparate impact suit could proceed.
It might seem strange that Briscoe would now gets his day in court to show disparate impact even though the Ricci Court, after reviewing the evidence, concluded that "there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability."
But that result seems to be exactly what Ricci contemplates: an employer might lack the strong basis in evidence to excuse disparate treatment but still find itself ultimately liable for disparate impact.
Not a war, perhaps, but surely a minefield for employers.