Somin on Disparate Impact Claims

When the Supreme Court decided Ricci v. DeStefano in favor of white firefighters suing over a nullified civil service exam, it created a difficult situation for employers, placing them in jeopardy of litigation regardless of what they do: If tests used for promotion or hiring effectively eliminate minorities, they cannot discard the results, but they are liable for disparate impact based on the test results.

"The bottom line is, ironically, the easier you make it for non-minorities to sue for disparate treatment, the harder it is to adopt race conscious policies that might shield [employers] from liability for disparate impact," says Professor Ilya Somin.

Somin disagrees with those who fear the ruling has put disparate impact in danger of disappearing as a cause of action.

"As I read the decision, it doesn't seem to constrain disparate impact lawsuits," Somin says. "Disparate impact liability is very strongly embedded in the Court's jurisprudence. I think they would be reluctant to radically revise their own statutory interpretations that way."

U.S. Supreme Court discrimination ruling may put employers in lose-lose situation, Lawyers USA, June 30, 2009. By Kimberly Atkins.

"Although the case involved municipal workers, employers and employees in the private sector are also covered by Title VII, so the ruling affects them too.

"'Title VII applies with equal force to the private sector and the public sector,' said Rae T. Vann, a partner at the Washington labor and employment firm Norris, Tysse, Lampley & Lakis, and general counsel for the Equal Employment Advisory Council, which also submitted an amicus brief in the case.

"'Private sector employees should not sit back and assume that because a municipality was involved [in this case] that it does not impact private sector employment and selection and promotion processes,' she cautioned.

"That's not to say that the decision gave employers a clear rule to follow to avoid liability.

"'I don't know that the ruling provided us with any clarity,' Vann said. 'I think [the justices] made the situation a little more challenging as far as navigating that Catch-22 because they changed the rules of the game without giving employers the guidance that they need.'

"Without knowing just what qualifies as a 'strong basis in evidence' of the likelihood of being found liable for creating a disparate impact, many employers will chose not to discard a selection or promotion process that yields few minority candidates once it is in place, possibly drawing a disparate impact suit.

"Those who believe they do have such a strong showing could be hit with disparate treatment claims.

"'The risk of litigation is much greater either way,' Pincus said.

"The problem is the wording of the statute itself, which was drafted in the civil rights era and aimed at stopping discrimination against blacks and members of other minority groups. But the wording prohibits race-based employment action that adversely affects any racial group."

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