Ricci: The Interaction of Disparate Treatment and Impact Discrimination
Until Ricci, the interrelation between intentional disparate treatment discrimination and unintentional disparate impact discrimination had not been worked out very thoroughly by the courts. Nevertheless, as Justice Ginsburg put it in her dissent, no conflict existed between the two theories:
“Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate treatment and disparate-impact provisions. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending work place discrimination and promoting genuinely equal opportunity.”
In the pre-Ricci period, employers were tasked with not making employment decisions with an intent to discriminate. Acting based on knowing the race of the individuals affected by the decision, however, was not sufficient proof that the employer acted with an intent to discriminate. At the same time, the employer was also tasked with avoiding using employment practices that had a disproportionate impact on members of minority groups unless that practice was job related and consistent with business necessity. Knowing the racial consequences of the use of an employment practice was the first, and necessary, step toward avoiding disparate impact liability. But an employer, acting with that knowledge did not trigger disparate treatment liability without more. So, as long as the employer did not act with an intent to discriminate against anyone on the basis of race, it avoided disparate treatment liability and, if it acted on the known racial consequences of its employer practices to avoid disparate impact liability, that was not disparate treatment discrimination.
What created the conflict between the two concepts that emerged in Ricci is the new notion that acting with knowledge of the racial consequences of the decision is acting with an intent to discriminate, at least in certain circumstances. In Justice Kennedy’s view, the employer does not act with an intent to discriminate, if, before a practice is used, the employer undertakes to review its likely racial consequences in order to shield itself from disparate impact liability. If, however, the employer has used the practice and its use has created reliance interests in others, it is too late to abandon the outcomes of that practice because that is disparate treatment discrimination unless the employer has a “strong basis in the evidence” of its disparate impact liability if it went ahead and use the practice.
Ex ante, it is, of course, not always clear whether the future use by an employer of a particular practice will, or will not, result in disparate impact discrimination. But, it appears that investigating the potential impact, which requires that the employer know the racial makeup of the group that would be subjected to the practice, does not trigger disparate treatment discrimination. It is only after the practice has been used and it creates legitimate reliance interests that the employer commits disparate treatment by attempting to at that point act to avoid an adverse impact on a group protected by Title VII. Once the employer starts to use the practice and people have some reliance interest created by its use, then, if the employer knows the racial consequences of its use, it is too late to decide to avoid disparate impact liability by acting in a way that defeats those reliance interests. Undermining those reliance interests amounts to disparate treatment discrimination unless the employer has “strong basis in the evidence” of it vulnerability of disparate impact liability. If that evidence is lacking, the employer is liable to those with the reliance interest and, presumably, it is also liable to those who are members of the group that suffered the adverse impact by the use of the practice if those plaintiffs can prove their case. In other words, the employer is dammed if it does, and dammed if it doesn’t.
So, what is an employer to do? Presumably, before an employer begins the use of anything the Title VII law would characterize as “an employment practice,” it should determine as best it can whether or not its use will result in some disparate impact to some member of a protected group. If the employer determines that a prima facie case of impact could be made out, then it has to decide whether or not to do something different to avoid the impact. In making that decision, there is no role for the “strong basis in the evidence” rule since the employer ex ante does not actually know the racial consequence of a practice yet to be used and no reliance interests have been created. It would be quite strange if anyone would have a reliance interest in the mere chance that an employer might use some practice, even if it is likely that one group or the other would do well if that practice was adopted and used. Simply, they would not have suffered an “adverse employment action.”
Once the employer begins use of a particular practice to make employment decisions, even if those decisions are made in a race blind way, the employer is likely to come to know the racial consequences of those decisions but it faces disparate treatment liability if, at that time, it acts in ways that defeat the reliance interests among those who would be favored if the results of the practice were not used. It is in this situation where the employer would need a “strong basis in the evidence” that it would face disparate impact liability to defend its action that undermines the reliance interests created by the use of the practice in the first instance. Because the Supreme Court so easily found that the City of New Haven failed in carrying that burden, as a matter of law without trial, the burden on the employer is quite difficult.
The subsequent litigation in Briscoe v. City of New Haven, will work out whether a disparate impact plaintiff can succeed in establishing liability even though the City failed, in its defense to the Ricci disparate treatment case, to establish a “strong basis in evidence” that it would lose just such a case. Further, the disparate treatment claims of other African-American testtakers to challenge the City’s announced intention of implementing the promotions of the Ricci plaintiffs will further be the basis for working out the relationship between disparate treatment and disparate impact claims.
The simplicity of the pre-Ricci has been replaced by this new, more complicated and risky set of relationships between disparate treatment and disparate impact doctrine. In other words, Ricci is a gift of the Supreme Court that will keep giving, at least to lawyers counseling employers to avoid this new, more complicated map of Title VII liability. The other side of this is that this new regime established in Ricci will be a trap for the unwary and those without good counsel advising them.