Author: Michael Zimmer


New Takes on the Sad Shape We Are In

For some time, I have been interested in the increasingly sad plight of our polity: ever increasing economic equality, the implosion of the government in response to crises and the general decay of our political and civic life. Recently, Jeffrey D. Sachs, noted economist and now director of the Earth Institute at Columbia University, published, “The Price of civilization: Reawakening American Virtue and Prosperity,” and Larry Lessig, noted professor of law and director of the Edmond J. Safra Foundation Center for Ethics at Harvard, published, “Republic, Lost: How Money Corrupts Congress –and a Plan to Stop It.”  Both look to our current plight and both start from the same place: The extreme negative effect extreme wealth has on our political system. Sachs characterizes political power as actually being held by a “duopoly:” “[T]he only difference between the Republicans and Democrats is that Big Oil owns the Republicans while Wall Street owns the Democrats.” For Lessig, government policy to advance the interests of the people is consistently thwarted: “Change on the Left gets stopped because strong, powerful private interests use their leverage to block changes in the  status quo. Change on the Right gets stopped . . . because Congress works to block any change that would weaken the fund-raising machine.” Sachs juxtaposes what the government does with the following widely shared values of the American people:  1. “equality of opportunity, 2. “individuals should make the maximum efforts to help themselves,” 3. tthe government should help those in need as long as they are trying to help themselves,” and 4. “the rich should pay more in taxes.”

Lessig differentiates among the rich. His focus is on the rich “whose power comes not from hard work, creativity, innovation, or the creation of wealth [but] who instead secure their wealth through the manipulation of government and politicians.”  In Lessig’s view the influence of money in campaign financing and lobbying from the wealthiest interests is corrupting even if it is not illegal. Democracy has become “a show or ruse” that has resulted in the loss of faith and trust in our system of government. For one example, Lessig quotes studies showing that “from 1998 to 2008, the financial sector spent $1.7 billion on campaign contributions and $3.4 billion on lobbying expenses.” He finds it “impossible to believe that our government would have been this stupid [in allowing the financial services industry to run the economy off the rails] had congressmen from both sides of the aisle not been so desperate” for campaign contributions  and the money spent lobbying. The American people overwhelmingly think that the government is corrupt and in the hands of the rich and powerful. Presently, only 11% of the people have confidence in Congress.

Sachs traces the beginning of the collapse of American virtue to the Reagan Revolution that created “a new antipathy to the role of government, a new disdain for the poor . . . and a new invitation to the rich to shed their moral responsibilities to the rest of society.” The “extreme libertarianism” that followed has “unleash[ed] greed.” He analyzes the consequences of the Civil Rights Movement and the backlash it produced, the rise in the Hispanic population and the rise of the Sunbelt and of suburbanization. Sachs pinpoints the main impact of economic globalization to be that it has cause a “a tremendous and rapidly expanding range of sophisticated economic activities that once were carried out only the United States, Europe, and Japan can now be carried out even more profitably in China, India, Brazil and elsewhere.” Not only does globalization impact national economies, it has an impact within them as well. “High-skilled (and therefore high-income) workers are likely to benefit. . . while low-skilled (and therefore low-income) workers are likely to feel the pressure of tougher competition from abroad.”  With the resulting increase in the wealth of those at top while they have turned their backs on the rest of society has produced our present politics that is so disassociated from the needs,  interests and values of the vast majority of Americans.

To regain prosperity and a vibrant society, Sachs says we need to set some specific short term goals: 5% unemployment by 2015, 50% of those between age 25 and 29 to have college degrees by 2020,  with academic performance established using global benchmarks, by 2015, every child should be enrolled in comprehensive early childhood development programs, ensuring nutritional monitoring, safe day care, and quality preschool.  He calculates the cost of these short term as well as longer term goals concerning the deficit, the environment and other issues that need to be addressed in the longer term. Sachs further demonstrates that these goals cannot be achieved by budget cutting alone. So for him it is “time for the rich to pay their due” and that would produce enough revenue to meet our goals without creating any sort of hardship on wealthy taxpayers.

To end the grip that the “corporatocracy” has on government, Sachs proposes public campaign financing, free media time for elections, banning campaign contributions from lobbying firms, stopping the “revolving door” and taking away the government “trough” for corporate interests. The problem is, of course, how to get from here to there.

Lessig suggests a number of possible strategies to reduce the impact of money on politics: First, There should be primary election challenges to incumbents by “citizen politicians” who do not want the job but will stay in the race until the other candidates commit exclusively to public financing. Second, a presidential candidate could pledges that, if elected, “she will (1) hold the government hostage until Congress enacts a program to remove the fundamental corruption that is our government, and (2) once that program is enacted, she will resign.” Given the slight chance these two strategies have of being adopted, Lessig proposes a Constitutional Convention to force reform onto our system. Even if this final step is taken, it is not clear whether money could be taken out of politics.

The emergence of these extreme critiques of the present plight of the United States by people at elite institutions reflects a groundswell that real change is necessary if we are to stop our decline. Sachs and Lessig show how deeply entrenched the defects are that are destroying the nation. Their proposed solutions also demonstrate how difficult real change will be to end the corruption of our government resulting from the hold that big money has on it. Holding a constitutional convention in face of some of the proposals being bandied about by groups such as the Tea Party would be extremely risky but our situation may be so tenuous that the risk must be taken.


Ok, You Asked For It: A Bit More About Wal-Mart v Dukes

I have been asked why I am so fearful that the Supreme Court’s decision in Wal-Mart v. Dukes foreshadows the demise of systemic theories challenging patterns or practices of discrimination. After all, the case is about class actions. My fear is that, has it done in other areas, the lower courts and the Supreme Court itself will look back and declare that systemic antidiscriminaiton law is as it was described in Wal-Mart. My fear is based on articles by Barry Friedman in the Georgetown Law Review, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona),, and Margaret Moses’ article, Beyond Judicial Activism: When the Supreme Court is No Longer a Court, 14 U. Penn. J. of Const. L. 161, _1781243. Friedman analyzes recoent decisions by the Robert Court that do not expressly overrule precedent but interpet so that nothing but hollow shells are left. Moses shows how the Robert Court reaches out to decide issues to impose the majority’s public policy predilections, thereby underminng precedent, even where the parties did not bring those issues to the Court or where those issues were never decided by lower courts or sometimes even briefed by the parties.

Wal-Mart itself is an exmple of the Court looking back to precedent but in doing so radically distorting it. General Telephone Co. v. Falcon was an earlier class action case in which the Court rejected the “across the board” theory of class actions. The “across the board” theory had approved class actions where a plaintiff, claiming one type of discrimination, could being a class action challenging every kind of discrimination of the employer. Falcon claimed he was a victim of defendant’s hiring discrimination but he tried to bring a class action challenging the employer’s promotion discrimination. After deciding such “across the board” class actions could not generally be brought under Rule 23, the Falcon Court, in a footnote, described two exceptions where a plaintiff could still bring a class action claiming more than one type of discrimination: 1. If the employer used a common test in more than one context, for example if in Falcon General Telephone used the same employment test for both hiring and promotion decisions and 2. if the employer had a “general policy” of discrimination.

The plaintiffs in Wal-Mart did not try to bring an “across the board” class action challenging all the ways that Wal-Mart discriminated. Instead, their action focused on Wal-Mart’s discriminatory pay and promotion practices at its stores. Since the level of pay was significantly influenced by whether an employee had been promoted or not, pay and promotion were closely interwined, unlike the hiring and promotion claims in Falcon. Falcon was inapposite Wal-Mart, yet the Court relied on it to reject plaintiffs class action. The Court turned the two exceptions from Falcon which would allow a plaintiff to bring a class action that reached more than one type of employer discriminaiton into a limit on the scope of class actions involving a single type of discriminatioin. Thus, it now appears that class actions challenging a single type of employer discrimination will be denied unless the employer uses either an employment test or has a general policy of discrimination. Since the Wal-Mart majority was unable to conceptualize the operation of Wal-Mart’s policy granting unchecked discretion to store managers on pay and promotions as a pattern or practice of discriminaiton, my fear is that lower courts and the Supreme Court itself will decide that systemic disparate treatment claims are limited to situations challenging the employer’s use of an employment test or where the employer has a formal, i.e., general, policy of discrimination. That would mean that Teamsters, Hazelwood and Bazemore, which interpreted Title VII to prohibit systemic patterns or practices of discriminaiton, are victim of stealth overruling.

Because the Wal-Mart majority hollowed out class action precedent to truncate class actions, that misuse of precedent forewhadows the use of the language in Wal-Mart to truncate the substance of the systemic theories of discrimination.


Our Fractured Age

The disconnect between what seem to the common interests and needs of most of us – now the 99% of us – and how we think about ourselves collectively has fascinated and troubled me for quite some time. Daniel T. Rodgers, Henry Charles Lea Professor of History at Princeton, has recently published a very interesting book entitled, “Age of Fracture,” that explores the intellectual basis for that disconnect. Looking at a broad set of social, economic, philosophical and political intellectual traditions, Rodgers explains how the intellectual underpinnings of our thought processes have shifted from the idea of collective identity to one of individualized freedom, but freedom from reality.  Reviewing the intellectual history of the late twentieth century until now, his analysis crosses the left-right divide to show how all of these different disciplines can by synthesized because they all vector in the same direction, this idealized sense of individual freedom.

Rodgers starts by describing the political rhetoric Presidents have used in their speeches. Presidential speechwriters rely on tropes that resonate because that rhetoric helps bolster Presidential leadership: The better the rhetoric connects to the prevailing mindsets of the people, the more effective the “bully pulpit.” Presidential rhetoric has interested me ever since I read Gary Wills’ Pulitzer Prize winning book, “Lincoln at Gettysburg: The Words That Remade America.” In essence, Wills analyzed President Lincoln’s use of rhetoric to show that it both reflected but helped reify a change in the concept of the nature of our country: Our  concept of American changed from, “The United States are . . .” to, “The United States is.” Rather than going back that far, Rodgers begins with the rhetoric of our Cold War era Presidents – for example, Kennedy’s “Ask not what this country can do for you; ask what you can do for this country” – calling us to gird our loins and stand united to advance our collective national interest in order to better confront the menace we faced by the menace of Communis and the Soviet Union. With the ending of the Cold War, President Reagan’s rhetoric moved away from that sense of collective identity and obligation toward an idealized, almost dream-like, sense of individual “freedom,” including freedom from the actual conditions of our lives as well as our from much sense of collective obligation. That predominant mindset allows us to escape hard choices and to assume a perfected life will be easy to achieve. It is not as if a Reagan’s rhetoric by itself caused the shift. Rather, presidential rhetoric both reflects but also amplifies the ideas that are already settling into our unexamined background mindset.

Having launched this project through the lens of presidential rhetoric, Rodgers then looks at developments across a wide swath of our intellectual life. He starts with economic theory and describes how the earlier macroeconomic Keynesian theory was supplanted – he quotes economist Robert Lucas, “The term ‘macroeconomics’ will simply disappear from use” — by microeconomic theory, the idealized world of individual rational actors motivated solely to maximize their profits. While he shows how disconnected this was from reality, Rodgers fits microeconomic theory within the broader conceptual view of the world of the individualized but unreal “freedom” reflected in President Reagan’s speeches. Rodger’s next chapter moves to politics and political theory. He traces the shift from Galbraith’s earlier view that the overwhelming  economic power of megacorporations gave them extraordinary political power to the microeconomic view that disconnects economic from political power by its focus on individual economic actors focused solely on their own economic agendas. In an interesting take, Rodgers shows how political theory moved toward rational choice analysis with its exclusive focus on the “power-seeking saturated world of politics” means that the problems of our powerless subordinated groups slip “out of the categories of analysis.” In a tour de force, he then describes how the divergent views of Gramsci, Genovese, Geertz and Foucault, nevertheless when taken together, conceptualize power as dispersed extremely broadly in “spheres of culture, ideas, everyday practices [and] science.” In sum, if microeconomic theory is all about individual economic gain disconnected from politics, political gain is all about special interest “rent seeking” divorce from collective needs and power is defined so broadly that it is so diffused as to exists everywhere, Rodgers asks whether power is in fact “nothing at all.” If power is nothing at all for us, that leaves most of us collectively powerless. Read More


Duking It Out With Wal-Mart

Thanks for inviting me back to Concurring Opinions. Last visit, I spent much of my month ranting about Ricci v. DeStefano – the New Haven firefighters case. This year I will try to avoid doing the same about Wal-Mart v. Dukes but I do want to say something. The decision is a major procedural decision limiting the availability of class actions for employment discrimination claims but also for class actions generally. To reach its decision, the Court indicated that it had to address the underlying substantive law which involved claims of systemic disparate treatment and disparate impact. The discussion of substance was in the context of deciding whether there were common questions of law and fact needed to satisfy Rule 23(a) and that is certainly not the same as discussing the substantive law directly. Nevertheless, I think the way the substantive law was discussed may well be a foreshadowing, a grim foreshadowing, of how the lower courts and the Supreme Court will treat the two systemic theories of discrimination in the future. The hope is that Wal-Mart will be treated “only” as a procedural class action case.

The plaintiffs’ claim was that Wal-Mart had a policy of granting unfettered discretion to its store managers to make pay and promotion decisions and it operated as a pattern of pay and promotion discrimination . The discretion policy is in sharp contrast to the general way in which Wal-Mart operates. Wal- art has been heralded as having developed the most sophisticated systems yet for collecting, analyzing and acting upon data flowing to its Bentonville headquarters in real time in all aspects and all locations of its business. If, for example, a freezer unit in a Wal-Mart location in Shanghai starts drawing electricity beyond established parameters, that information is transmitted to Bentonville, analyzed and the local facility is notified and ordered to deal with whatever problems that heightened power usage reveals. Like the rest of the data generated in the operation of the business generally, the pay and promotion data is collected in the Bentonville. The difference is that nothing is done about what were concededly dramaticshortfalls in pay and promotion of women working at Wal-Mart stores.

The evidence, which was unchallenged, showed that women filled 70% of the hourly jobs but only 33% of management jobs, with most promotions coming from the pool of hourly workers. Further, it took women longer than men to rise into the management ranks and the higher in the management hierarchy the fewer the women. Finally, women were paid less than men in every region and that salary gap widened over time, even for men and women hired into the same jobs at thesame time. Based on that basic statistical evidence, plaintiffs claimed that this system of making pay and promotions was a pattern of systemic disparate treatment discrimination and the discretion policy operated as an employment practice that resulted in disparate impact to women. This post will deal with one aspect of the systemic disparate treatment claim – the failure of the Court to confront the statistical evidence of discrimination that plaintiffs presented.  Read More


Democratic Deficit or an Oligarchy?

“It has been said that democracy is the worst form of government

except all the others that have been tried.”

Winston Churchill

I suppose the retort is that, if we have a democracy, these other forms must be really, really terrible. The U.S. seems mired, incapable of even starting to come to grips with our problems. After a 50 year struggle to get a rational health care system, we are closer but still not there. And, we may yet not get there. Waiting in the wings are issues such as reforms in financial regulation, climate change, and important civil rights issues. At the glacial pace of health care reform, these issues may not be reached, much less decided, before the next election cycle starts in full swing.

Some will say that we are doing just fine because inaction is the point of our governmental system. As Thomas Paine put it, “That government is best which governs least.” Whether or not that might still be true in some philosophical sense, the reason for our governmental inaction is not policy but is the result of a tremendous and growing democratic deficit in the way our government is structured and operates. And, of course, our government is not really that small, it is just ineffective.

A number people, particularly Sandy Levinson, have called out our democratic failings. Commonly reported causes of that deficit include federalism, a national government of limited powers, a President not elected by the people, separation of powers between the Congress and the President that diffuses responsibility, the disproportionate power of seniority in both Houses of Congress, each State getting two seats in the Senate no matter how miniscule or large its population and the filibuster rule of the Senate requiring supermajorities to get anything done.

The point I want to add to the discussion is the role of our system of political parties, the lack of much party discipline, and the role of campaign contributions.  We tend to talk about the Republican Party and the Democratic Party as if they were monolithic institutions that play significant roles in governance. That assumes some discipline within each party that is lacking. Each elected national official – President, Senators and Representatives – has his or her own, individualized political party as do their opponents trying to replace them. Yes, individuals who call themselves Democrats or Republicans sometimes work together under the umbrella of one party name or the other. Yes, the so-called national parties have some money to contribute to the campaign war chests of some candidates. Presidential elections come as close as we get to national parties because in each election there is a national Democratic Presidential Election Party and a Republican one as well.  But, these parties are really creatures of the candidates, not the other way around. Read More


Comparative Constitutional Law, “Exceptionalism,” and “Originalism”

Last summer I was fortunate to share with Anne Massie the chance to teach Comparative Constitutional Law in the Loyola Chicago program at its Rome campus. Part of what made it enjoyable was the participation of Justice Ruth Ginsburg, along with her law professor husband, Marty Ginsburg. Justice Ginsburg gave three lectures – one on the inner workings of the Court, a second on her experiences litigating women’s rights cases in the 1970s, and the third on dissents. Her lectures revealed to enthralled students how passionate she is about what she is doing and how personal the relationship is among most of the Justices. Marty gave a wonderful lecture entitled “Imperfections.” It was about how things that happen that might seem not so desirable at the time can, nevertheless, lead to even better outcomes. He started with wondering what would have happened if big law firms would have hired women lawyers when Sandra Day O’Connor and Ruth Bader Ginsburg graduated from law school. That would have been good, but, had that been the case, both of them would now be rich, retired partners of major law firms. As things turned out, much better things happened because one path had been closed. His warmth and humor made the ambiance so relaxed that a student was so bold to ask how he and Justice Ginsburg had met, which they took turns answering.

What I want to comment on, however, is an insight that teaching comparative constitutional law allowed me to have and has been useful in my thinking about American constitutional law. It ties together our supposed “exceptionalism,” our doctrine of judicial review, and “originalism.”

I have always been proud that the US Constitution has been the inspiration for the development of written constitutions and of constitutional democracy, including individual constitutional rights, in many countries around the world. Judicial review, as originally articulated in Marbury v. Madison, has taken hold around the world in part because of our experience with it, particularly in its role in developing individual constitutional rights to expand the concept of what a democracy entails.

In recent times, however, our Constitution and the decisions of our Supreme Court are not cited that often by the courts making constitutional decisions in these other countries. Given the strident rejection of any citation to foreign legal developments by some in the US, including some member of our Supreme Court, one explanation is simply that turnabout is fair play: If the constitutional law of other countries is to be avoided at all costs in US courts because of our supposed “exceptionalism,” why should the courts in other countries cite US decisions?

There may be some of that.  However, I think more is at stake. The demand for isolationist “exceptionalism” may have something to do with our turn toward “originalist” interpretative approaches that has come to so dominate the discourse about constitutional law in this country.  “Originalism” creep is even expanding across the ideological spectrum of US constitutionalists. “Originalism” in any of its many versions is simply a non-starter for the courts of most other countries deciding constitutional questions.

The absence of “originalist” talk outside the US may be because most of the countries that now have constitutional judicial review have written it into their constitutions. Some have even created specialized constitutional courts with jurisdiction limited to decisions of constitutional questions. Our written constitution lacks such an explicit provision, though the structure of our constitution, with the horizontal separation of powers into three branches for the national government and a vertical power distribution between the national and supposedly sovereign states, seems to me to ache for judicial review to resolve the inevitable disputes that emerge in such a complicated power sharing system. In countries with express judicial review provisions, there is no question of the legitimacy of judicial review, though, of course, there are intense disputes over any particular exercise of that power.

So what is the link between “originalism” and an explicit judicial review power? Given security over the legitimacy of judicial review in those countries where it is explicitly established in the written constitution, it struck me that one way of looking at our obsession with “originialism” is that it reflects our collective insecurity about the legitimacy of judicial review. The strident cry of US “exceptionalism,” as virtuous and not to be contaminated by the introduction of foreign influences, is a way of shielding our constitutional discourse about judicial review from any recognition of its calm acceptance in so many other countries. What is exceptional is not judicial review but our insecurity over its legitimacy.

Some years back, Cass Sunstein proffered a straightforward political explanation for US judicial “exceptionalism:” The national political turn away from Warren Court activism with the coming of Nixonian Republicanism. One of its goals was to stop the momentum the Warren Court had been developing for the expansion of individual constitutional rights from negative ones to include positive rights. Shutting out the experiences of other countries that had been developing broader individual constitutional rights helped stem the tide toward recognition of positive rights here.

If that is true, that raises a question of which way causation runs: Has our collective insecurity about the validity of judicial review caused the cry for US “exceptionalism” and our soul-searching “originialism”? Or, has that insecurity been used instrumentally with politically motivated calls of “exceptionalism” and “originalism” made to retard the development of individual constitutional rights?

I wish I knew the answer to that. At any rate, teaching comparative constitutional law sure put the debates over how to interpret our Constitution into a new context. I hope I will be able to expand the discussion in my US constitutional law course this coming semester.


14 Penn Plaza v. Pyett and the Fairness in Arbitration Act

Thanks to Dan, Sarah and all for inviting me to continue as a guest for awhile. They did not even require me to promise not to say any more about Ricci!

I finished my Labor Law class with 14 Penn Plaza v. Pyett. My position is that the case represented dysfunctional litigation in a number of ways. First, and foremost, Justice Thomas’ opinion appears to fail to understand anything about how collective bargaining arbitration works. The provision pouring statutory discrimination claims into arbitration is the basis for his conclusion that this “requires union members to submit all claims of employment discrimination claims to binding arbitration.”  Collective bargaining agreements, including arbitration provisions, have only two parties to them – the union and the employer. The employees covered by the collective bargaining agreement are decidedly not parties to the agreement and nothing in the provision Justice Thomas quotes does anything to make them parties to the collective bargaining agreement, the arbitration agreement, or the particular grievance of any individual employee. One wonders if any Justice or any clerk of any Justice has actually taken labor law. A problem was that the union was not a party to the case and did not weigh in until it filed an amicus brief at the Supreme Court.

 Second, the fig leaf of “consent” or voluntary agreement to arbitrate employment claims in individual employment contracts that are contracts of adhesion has been ripped away in 14 Penn Plaza. There is simply no basis for finding that the employees whose discrimination claims now can only go to arbitration ever agreed to that. So, arbitration has been deprived of any claims to being voluntary as to the employees whose claims are being determined. Finding that a union can waive the statutory right of employees simply does not make the resultant arbitration voluntary as to the employee.

 Third, once the union withdrew the grievance from arbitration because it claimed that it had agreed to the change that disadvantaged the employees, the employees should have filed a discrimination claim against the union in addition to the claim it had filed against the employer. With the two parties to the arbitration agreement now both respondents to discrimination claims, it seems hard to conclude that the arbitration process, controlled by these two parties, could be found to be fair. The conflict between the employees on one side and the employer and union on the other should have allowed the employees to seek a neutral forum in the courts.

Fourth, the opinion references the union’s duty of fair representation but the standards of proof for that are so high that a straight discrimination claim might work better for the employees. The employees should, however, have filed duty of fair representation charges with the NLRB on the chance that it would have pursued their claims on their behalf. In sum, it is my position that 14 Penn Plaza is another, in a long line of cases that is transforming voluntary arbitration into a private justice system that is inconsistent with the idea that we follow a rule of law.

The students raised some interesting points that did not necessarily agree with my position. Read More


Ricci: The Equal Protection Implications


The question presented for decision in Ricci had two elements, a Title VII aspect and an Equal Protection one:

“When a content-valid civil-service examination and race-neutral selection process yield unintended racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?” 

By deciding the Title VII question, that the City had engaged in disparate treatment discrimination that violated Title VII, the Court said it had avoided deciding the equal protection question: “In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause.”

The Court went further to emphasize that it was leaving the constitutional claim for another day and that its decision in Ricci on Title VII grounds was not in fact deciding any equal protection claim:

“Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.”

Based on what the Court said about the constitution in Ricci, this would be the end of the post. But equal protection doctrine is a powerful background issue in Ricci. See, Richard Primus, in The Future of Disparate Impact,, for a further development of this argument. Read More


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.   Read More


Ricci: Color-Blind Standards in a Race Conscious Society?

While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.

The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:

“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”

The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:

“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed.  (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably. Read More