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 [...]]]> “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.

The two national parties are at best rival confederations of these individual parties that each support individual candidates. The national parties have little power to discipline members of their coalition or confederation. That point was made to me long ago when I heard William Proxmire speak. Proxmire served in the Senate from 1957 to 1989 and, I have to say, I admired him. With others in the Golden Age of Wisconsin politics, including Tom Fairchild who I clerked for, he rebuilt the Democratic Party. He was a true maverick, a regular pain in the neck to everyone including the Democratic Party to which he said he belonged. His “Golden Fleece Awards” pinpointed abuses whether by Republicans or Democrats. When asked why he was such a maverick, Senator Proxmire’s answer was that he did what he thought was the right thing. If anyone wanted to get rid of him, they should begin shaking hands at every Packer game, every UW football game, etc. In essence, he came back every weekend to campaign and so, as long as the people of Wisconsin continued to reelect him, he was an independent political force. I don’t recall his saying it at the time, but he did not take any campaign contributions because he did not want to owe anyone anything.

Except for the thing about not taking campaign contributions, most members of Congress today, absent some personal scandal, do get reelected rather consistently. If the people in their districts keep voting them into office, politicians can do what they want, pretty much free of control by the national political parties, their state parties and even public opinion. As long as they set up effective constituent service systems that keep voters in their districts reasonably happy at an individual level, they gain further freedom from the need to go along with their national parties or the leadership of their parties, whether the leader is the President, the Senate Majority Leader, the Speaker of the House or the respective leaders of the party in opposition. In office, each elected official holds the power to just say no to a demand to follow the party line. Or, maybe more importantly, they can demand something in return for saying yes. Witness earmarks and other advantages aimed at individual members of Congress that are all jumbled together to get and keep a majority on some bill that is completely unrelated to the earmarks and programs aimed at benefitting particular members of the legislature. In sum, there is individual negotiation, not unity of purpose and commitment to party that is at the core of our political system.

Some might say that this is an ideal system: each elected representative can work toward his or her own vision of the public good. I admit that the idea that party discipline is a good thing does not come easily. It sounds almost un-American.

Back in the day when Bill Proxmire refused to accept them, campaign contributions were not as important as they have become. Now, amassing large amounts of campaign contributions has become the coin of the realm in politics. Among the political savvy, it has come to be that the amount of campaign contributions a candidate raises is the marker for success or failure as a politician. It is almost as if the election is an afterthought. As more money has poured into the campaign coffers of individual candidates, the need for more money just grows and grows. Candidates can never have enough, much less too much money. I have always liked Hillary Clinton and continue to do so. But she had so much money to run for President, her primary campaign resembled a potlatch – burning money to show she had money to burn. With the example of Clinton, and more recently, the close call in the reelection of Mike Bloomberg as mayor of New York, maybe the assumption is weakening that the amount of money a candidate has collected or spends is the best predictor of electoral success. Some who voted for Bloomberg’s opponent may have done so because Bloomberg spent so much money on his reelection campaign. Nevertheless, the basic assumption that money is key to election victories is still overwhelmingly strong.

When Teddy Kennedy died, many took a look back and commented about the “lions” that inhabited the Senate when he joined it. Now they mostly look like mice. As campaign contributions become ever more important to achieve the goal of victory at the polls and reelection victories thereafter, our elected officials focus more of their time and energy on collecting money. They no longer have time to “do” public policy; they have been reduced to money collectors, with collecting money almost becoming the point of the game, rather than their serving the policy goals to best serve the needs of the people. The longtime Senate Majority leader in South Carolina was Edgar “Satchel” Brown, the satchel tag because it was alleged that he had an open satchel in his office that needed to be filled if a visitor expected favorable treatment. He began his service at a time before “one person, one vote” so state government was remarkably inefficient and ineffective. Brown, not Proxmire, is the model of the modern office holder.

Devoting themselves to raising campaign contributions is what makes most of the members of the House and Senate – Republican, Democrat and Independent — seem so small in character, so limited in their ability to even speak sensibly but so responsive to the sources of their campaign contributions. Just as important, as elected officials and candidates collect huge amounts of contributions for themselves, they become further insulated from any party discipline. While Bill Proxmire campaigned hard every weekend to make himself invulnerable to challenge by an opposing candidate or to be told what to do by the Democratic Party, the candidates of today instead collect huge sums of money to make themselves invulnerable to challengers but also to the influence of their supposed parties.

This would not be so antidemocratic if the contributions came more or less equally from all of the people. Most of us probably check the box for a contribution to the Presidential elections on our annual income tax forms. If we could do that for elections to Congress as well and if those contributions were all the money candidates could spend on elections, elected officials would be freed of the overwhelming job of raising contributions. But, as it happens, campaign contributions are tremendously asymmetrical. Mancur Olson taught us a long time ago of the problem of collective action. If we all stood together, contributed financing to candidates more or less equally, we would all be best off because the officials would have no reason to do other than what she thought best served the interests of all, i.e., the public interest. But organizing all of us, or even large groups of people, is tremendously challenging. Organizing small groups, however, is much easier, especially when the group organizes around a single issue that group members have a strong interest in. Thus, the incentive for group action diminishes as group size increases, so that large groups are less able to act for their own common interest than are small ones. Special interest groups focus their campaign contributions to yield tremendous impact at relatively small cost. And, since more money is always better, those with more resources can magnify their influence in Congress.

Elected representatives respond to those special interest groups that provide them with significant amounts of campaign contributions by granting access. So, even if the representative is convinced that she is acting in the public interest, how that vision is determined is influenced by the information she receives. Since it is so asymmetrical, weighted towards big contributors, the vision is also likely to be weighted.

All the elected national figures are in exactly the same position. It does not matter whether they are Republicans, Democrats or Independents, they all have their own political parties that get them elected and reelected.  And the election machinery now runs on money. If they individually raise huge amounts of campaign contributions, they do not need to respond to calls for part unity. In short, these officials act individually, but there are no more Bill Proxmires.

If truth be told, we, the members of the public, are also at fault. Too many of us may be too much like the “humans” portrayed in the movie WALL-E: floating blobs of self-absorbed hedonism. Maybe we have learned the lesson of the logic of collective action too well and so we have given up working for the common good.

So, what can be done about this sordid mess we call our democracy, even though it more nearly resembles an oligarchy? Some reforms would take constitutional amendments, which are extraordinarily difficult to achieve. Reforming election laws so that the candidates need not live in their districts would take a lot of work in many states. But, putting the power in the national political parties to select which candidates would run in which districts would create more party discipline than now exists. Even that would not necessarily create enough added leverage for the national parties to impose some semblance of discipline. Eliminating the filibuster rule in the Senate would require every Senator to give up the added power he or she has as the last holdout augmented at the 60 vote cloture rule rather than a 51 vote majority rule. None of the Senators, regardless of party, are likely to be enthusiastic about ceding any of the personal power that holding out to be the 60^th vote gives them.

What about campaign finance reform? As I write, we await a decision by the Supreme Court that might expand the new form of a Lochner grip that already restricts campaign finance reform. This time the Lochner grip on democratic decisionmaking is not based on economic substantive due process grounds but is based on highly attenuated notions that money given as campaign contributions is speech and so the contributions are protected by the First Amendment.  It is true that elections now require that money be spent and that elections involve speech. But that does not make money speech. The outcome in the case before the Court can hardly be considered encouraging since last Term, four members of the Court did not think there was a constitutional problem when a litigant in a case pending before a state Supreme Court spent enough money to get a Justice elected who then voted on his behalf. Constitutionalizing the right to spend money in elections and not comprehending that asymmetrical campaign contributions weakens democracy and the rule of law simply helps bolster the power of the oligarchy. This makes public financing of elections, which would take away the advantage that focused interest groups have, ever more difficult. Getting politicians, who live and die based on the campaign contributions they can collect, to adopt true reforms seems quite unlikely. Requiring a constitutional amendment to authorize reforms is even more difficult.

To conclude on a somewhat more positive note, the impact of the Netroots phenomenon on the last election seems to have been substantial. Maybe that is the wave of the future. An internet-based attempt might work to publicize the sources of candidates’ campaign contributions, to correlate those contributions with actions taken by officials, to organize opposition to those who appear to represent special interests rather than to the public interest, and to get a significant number of small contributions directed to candidates who reject special interest influence. WALL-E blobs we may be, but blobs do have access to the internet.

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 [...]]]> 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.

One student thought that the result in 14 Penn Plaza put employees covered by collective bargaining agreements that include arbitration provisions covering discrimination claims in a marginally better position than employees who go to court with their discrimination claims. While Alan Hyde claims that arbitration is where discrimination claims go to die, the student pointed to data on success rates for plaintiffs in court that is so abysmal that discrimination cases go there to die as well. With collective bargaining arbitration, the employees might be represented by the union, while most plaintiffs in court cases are pro se. Thus, at least some employees would be better off in arbitration than in court. 

Another thought 14 Penn Plaza would have a horrible impact on union organization efforts since it should now be assumed that all employers will, in collective bargaining, push for provisions pouring all discrimination claims of employees into arbitration, just as so many employers now require employees not represented by unions to “agree” to arbitrate their disputes . Workers, deciding whether or not to support a union organization, will have to balance what they might gain from union representation against the loss of their right to take their individual statutory claims to court. 

A third thought that collective bargaining arbitration of statutory claims would only work if all individual grievants would have a right to take their statutory claims to arbitration with the union paying for all those arbitrations either by representing the grievant or paying for the grievant’s representation, along with the union’s share of the cost of the arbitrator. Given the low rate of success of discrimination claims in court, an alternative dispute system like that might work better. 14 Penn Plaza, of course, left open how the arbitration of these disputes would work, especially the role of the union in that process.

Following from that, a fourth argued that the expense and lack of control over all these grievance arbitrations would so drain unions of resources that, given the pressure of employers to accept arbitration of statutory claims, unions would now have a reduced interest in agreeing to arbitrate any disputes in order to escape the obligation to pay for all discrimination grievances to go to arbitration. Without arbitration as the more or less single rule of federal collective bargaining agreement law, section 301 enforcement actions would require the federal courts to build out a real jurisprudence of collective bargaining agreement law. 

After the decision, Senator Feingold introduced Senate Bill 931 which would overturn  14 Penn Plaza:

COLLECTIVE BARGAINING AGREEMENTS- Nothing in this chapter [of the Federal Arbitration Act] shall apply to any arbitration provision in a contract between an employer and a labor organization or between labor organizations, except that no such arbitration provision shall have the effect of waiving the right of an employee to seek judicial enforcement of a right arising under a provision of the Constitution of the United States, a State constitution, or a Federal or State statute, or public policy arising therefrom.

So, should Congress adopt Senator Feingold’s amendment to the Fairness in Arbitration Bill that has been before it for some time 

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 [...]]]>  

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, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, for a further development of this argument.

Perhaps the powerful impact of constitutional law is that in his opinion for the Court Justice Kennedy draws on equal protection authority that he imports into Title VII to establish the “strong basis in evidence” standard to resolve the conflict that the Court’s decision created between disparate treatment and disparate impact claims of discrimination. The source for this standard was the earlier Supreme Court equal protection decisions, such as Croson and Wygant, involving challenges to affirmative action that involved racial classifications.

Beyond that clear reliance on equal protection doctrine to resolve a Title VII issue, it is possible to tease out Justice Kennedy’s position on the constitutionality of the disparate impact provisions of the Act by looking at the approach he took to the use of race to assign individual students to schools in Parents Involved, where his concurring opinion is the Court’s holding. There he differentiated the use of race consciousness in setting of a school board planning how to set up a system of school assignment that would operate to prevent the resegregation of the schools from the subsequent assignment of students by their race to the schools:

“In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, they are free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race.”

Similarly in Ricci, now writing for the Court, Justice Kennedy indicates that, before any individuals have established reliance interests or expectations, an employer can act with race consciousness so that its employment practices provide equal employment opportunity for workers. This use of race does not violate Title VII without having to satisfy the “strong basis in evidence” created in Ricci that kicks in once those expectations have been created.

“Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.”

That changes once the employment practice has been used in a way that created reliance interests in some employees: “[O]nce that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Presumably, once those expectations have been created a law requiring that someone act with race consciousness to avoid disparate impact could only be justified as constitutional by proof of a compelling governmental interest. Perhaps in some limited settings the sort of educational diversity relied on in Grutter might work, but a generalized goal of addressing societal discrimination would not.

Claiming that the constitutional issue will eventually have to be decided, Justice Scalia’s concurring opinion stakes out a position at odds with what appears to be the likely position of Justice Kennedy: “[T]he resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.” 

The basis for Justice Scalia’s position articulated in Ricci is that disparate impact law requires employers to act knowing the racial consequences of that action: “[I]t is clear that Title VII not only permits but affirmatively requires such actions [of taking account of race] when a disparate-impact violation would otherwise result. . . . Title VII’s disparate impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” For Justice Scalia that renders the disparate impact provisions of Title VII unconstitutional on their face because the law is equivalent to imposing racial quotas:

 “[D]isparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles.”

The question is what that equal protection jurisprudence amounts to in a sharply divided Court with Justice Kennedy as the swing vote in so many important cases. Given the longstanding dispute over the significance of first Justice Harlan’s famed statement in his dissent in Plessy v. Ferguson that, “Our Constitution is color-blind,” it could be argued that Ricci either adopts, or moves the Court closer to adopting, such a broad standard. Ricci could be seen as further building on the line taken by Chief Justice Roberts in the plurality part of his opinion in Parents Involved, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” But the Chief Justice’s opinion also emphasized the traditional strict scrutiny/compelling governmental interest approach to the constitutionality of racial classifications rather than declaring them to be absolutely prohibited. Going back one generation of reverse discrimination equal protection cases, even Justice Scalia in his dissent in Grutter (though not Justice Thomas in his) acknowledges the vitality of the strict scrutiny approach.

As was the situation in Parents Involved, Justice Kennedy may well be at odds with Justice Scalia and the other rightist members of the Court. He would not likely vote to find Title VII’s disparate impact provisions unconstitutional on their face, but might find them unconstitutional as applied in certain circumstances. With his language about “intentional discrimination. . . one step up the chain,” Justice Scalia’s appears to be challenging the distinction that Justice Kennedy has drawn between acting before versus after reliance interests have been created. That situation would appear to be one step up the chain where Justice Kennedy would find no constitutional problem with the use of race but Justice Scalia would.  Justice Scalia, however, appears at most to be speaking for four members of the Court. Given that Justice Kennedy has written for the Court in Ricci and has established the holding in his concurrence in Parents Involved, it appears that there is a risk that the disparate impact provisions of Title VII will be held unconstitutional depends as applied to cases involving established expectations. Alternatively, the use of race by an employer in the planning phase of its use of an employer practice to avoid an adverse racial impact would not be the basis for finding that application of Title VII’s disparate impact provisions was unconstitutional.

In Briscoe v. New Haven, a disparate impact case challenging the City of New Haven’s use of its weighting formula between the written and oral test scores, would arguably escape both Ricci’s Title VII disparate treatment problem as well as an as-applied claim that Tile VII’s disparate impact provisions violated equal protection. This is because the focus is on the time frame when the City was setting up its promotion procedures, well before any individuals had taken the test: Briscoe will claim that no reliance interests had been created at that time and so it was not only constitutionally permissible but statutorily required that the City take steps to avoid disparate impact to African-American and Hispanic testtakers.

In sum, the Ricci Court took one step closer to a statutory and constitutional “color-blind” standard. On one hand, it did not appear to change the equal protection standard applicable to express racial classifications that was established in Adarand Constructors: “[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.” On the other hand, it likely expanded the scope of application of strict scrutiny to some, but not all situations, where a governmental actor (or a private actor acting under compulsion of law) takes action, knowing the racial consequences of that action. Strict scrutiny does not apply if that action is taken before expectations have been established or reliance interests created in individuals. But strict scrutiny does apply once those expectations have been established.     

Ricci is a cornucopia. It created a new collision between the Title VII obligations of employers to neither intentionally discriminate nor use unjustified practices that caused an adverse impact upon groups protected by the Act. It resolved that collision by importing an equal protection test – the strong basis of evidence — into Title VII. By so readily finding the employer liable for intentional disparate treatment discrimination while incorporating equal protection doctrine into Title VII, it seems to have expanded both Title VII’s disparate treatment and equal protection law to apply the strict scrutiny standard that has been in place since the Korematsu case beyond racial classifications to race conscious decisionmaking.  Finally, because it stops short of imposing strict scrutiny to all situations of race conscisous decisionmaking, it reinforces the position of Justice Kennedy as the most significant justice on the Court because he has located himself in the middle of the ideological spectrum of the justices.

 “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 [...]]]> 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.

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 [...]]]> 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.

 These are the six different groups:

 1. The  24 African American who, because the City decided not to use the test scores,  now have an improved chance for promotion if some other method is used to make the promotions. The City claims their threat of a disparate impact lawsuit was why it decided not to use the test scores.

2. The three African-American testtakers who might be considered for promotion to lieutenant if there were more openings over the two year life span of the test results. If it was decided not to use the test scores, their chance for promotion probably decline but that would not be known until it was known what the alternative promotion procedures the City might adopt would mean for them.

 3. The 20 Hispanic testtakers who, like the 24 African-American testtakers in group 1, would not have been promoted under the tests.

 4. The 51 white testtakers who did not score high enough to be promoted if the test scores would be used. Like the African-American and Hispanic testtakers in groups 1 and 3, their chances for promotion were improved by the City’s decision not to use the test scores because they had no chance for promotion if the test scores were used.

 5. The 17 white testtakers who did score high enough to be promoted if the test scores were used. With the decision not to use the test scores, their chances for promotion declined. They lost a sure thing and only have some chance for promotion under whatever system the City would decide to use for promotions instead of the test scores.

 6. The two Hispanic testtakers who scored high enough to be promoted if the test scores were used. Like the members of group 5, they have a reduced chance of promotion because they lost a sure thing.    

 In sum, there are six distinct groups involving three different racial groups and two possible outcomes. Each racial group had members in the group that would be treated more favorably if the test scores were used and had members in the group who likely would be treated more favorably if the scores were not used and some alternative selection method was adopted. In other words, the results as to all the testtakers resembles a racial mosaic, with the decisions not made along strict racial lines. This table shows the results as to all six groups: 

                                               Racial Groups

 Based on this, how could the Court conclude, as a matter of law, that the “City rejected the test results solely because the higher scoring candidates were white”? Was it also disparate treatment discrimination against the two Hispanic testtakers who would be promoted if the test scores were used and the three African-American testtakers who had some chance for promotion during the life span of the test results? None of these questions were addressed in Ricci. Why was this solely discrimination against the 17 white testtakers and not anyone else or everyone else?

 The basis for the Court’s conclusion appears to be simply that the City acted with knowledge of the racial impact of using or not using the test scores on all three races, not just the impact on the 17 white testtakers who were the first group to sue. The Court assumed there was no animus against any of the racial groups because there was disparate treatment racial discrimination “[e]ven if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination.”

 So, even if the City had subjectively intended to benefit members of the first three groups that included whites, Hispanics and African Americans, its decision not to use the test scores amounts to an intent to discriminate against only one group, the whites who would benefit if the test scores were used. If the City’s decision was disparate treatment discrimination against the white plaintiffs, what is the explanation for it also not being disparate treatment against those members of these two minority groups who were similarly situated to those white plaintiffs? Since those Hispanics and African Americans did not sue, is it simply out of sight, out of mind? 

Deciding to benefit, or not to disadvantage, most of the testtakers be they African-American, Hispanic or white inevitably, for the Court, supports drawing the inference, as a matter of law, that the City acted with an objective intent to discriminate solely against the comparatively small group of whites who were disadvantaged by that decision. Apparently, what got the City in trouble with the Supreme Court was that the City acted, knowing the racial consequences of its decision not to use the test. Of course, the City also had to know that its decision would also disadvantage some Hispanic and African-American testtakers as well as the white plaintiffs and that it would also be to the advantage of members of all three racial groups who would get a new chance to be promoted under whatever alternative promotion system the City might adopt.

Can support for this objective intent rule be found in the Title VII systemic disparate treatment cases where plaintiff establishes liability by proving the existence of an explicit, written employment policy that expressly discriminates? For example, in Los Angeles Department of Water & Power v. Manhart, plaintiffs proved that the defendant had an employment policy requiring all women to contribute more for their pensions than all men. That policy was drawn with all women on one side of the classification and all men on the other. That is not the situation in Ricci since members of all three groups fall on both sides of the line and there is no express policy to discriminate.  In International Union, UAW v. Johnson Controls, the Court found that an express employment policy excluding all fertile women but no fertile men from jobs making batteries was systemic disparate treatment even though non-fertile women and all men were not disqualified. This is not Ricci since not all members of one racial group were on one side of the line as the men were in Johnson Controls and, again, there was no express policy drawing any racial division. Those cases give little support to the idea that disparate treatment liability can be found without an express classification and with impact that leaves members of all racial groups on both sides of the line.

It is also not clear that the systemic disparate treatment cases based on statistical evidence proving the employer had an intentionally discriminatory employment practice support the holding in Ricci. In Teamsters and Hazelwood School District, the statistics established intent, even in the absence of proof that no African Americans were, respectively, over-the-road truckers or school teachers. In the situation of an “inexorable zero” of African-American truckers in Teamsters and the statistically significant absence of African-American teachers in Hazelwood is quite different from the statistics in this case where disparate treatment was found even though the white plaintiffs were only 25% of all the whites who took the test. Looking at the statistics alone, it would seems to be unlikely to support drawing an inference of intentional race discrimination against the members of any of the six groups without drawing the same inference as to the members of each of the six groups. That would not be disparate treatment discrimination.

There is support in the cases for the proposition that simply being conscious of the race or gender of the affected individuals does not support drawing an inference of intent to discriminate sufficient to support a claim of disparate treatment discrimination. Justice O’Connor, in her concurring opinion in Price Waterhouse v. Hopkins, made it clear that intent to discriminate cannot be found solely on the fact that the race or gender of the person affected by the decision is known to the decisionmaker:

“Race and gender always ‘play a role’ in . . . a benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral fashion. For example, . . mere reference to ‘a lady candidate’ might show that gender ‘played a role’ in the decision, but by no means could support a rational factfinder’s inference that the decision was made ‘because of’ sex.”

Similarly, in the context of equal protection law, the Court, in Personnel Administrator of Massachusetts v. Feeney, found that an absolute preference for hiring military veterans at a time when men were 98% of the veterans was not intentional discrimination against all women other than the 2% of veterans who were women even though the vast majority of women would be disqualified if even one veteran applied for the job:

“’Discriminatory purpose,’ however, implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

The concurring opinion of Justice Alito in Ricci argues that the motive for the City deciding not to use the test was the mayor’s fear of the consequences of local, racialized politics aimed at him: “[W]ere the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” Assuming that avoiding the wrath of some members of the community was what drove the decision not to use the test, the City’s announced reason for not using the tests of trying to avoid disparate impact liability seems like a pretext. But, a pretext for what? It is hard to conclude that it is a pretext for discrimination against some of the testtakers. Giving in to political pressure to benefit African-American does not equate with an intent to discriminate against some but not all white, Hispanic and African-American testtakers “because of” their race. Justice Alito’s reasoning is at odds with Hazen Paper Co. v. Biggins, where the Court, in an age discrimination case, held that an illegitimate, even unlawful, intent to discriminate to deny the plaintiff his pension simply was no evidence of age discrimination. Of course, decisions can be motivated by more than one factor, but where is the evidence of another factor other than racial politics or the subjective intent to not disadvantage African American testtakers? If anything, Justice Alito has inadvertently provided a defense in this case that the City did not think to present. Perhaps its best defense would have been to admit that the City gave into political pressures. That may be a lot of things, but it is not evidence of an intent to discriminate “because of” race against the 17 white testtakers who sued first. Whether or not what he claims was the motivation for the City’s action is true, Justice Alito’s position does not support finding the City acted with intent to discriminate against the 17 Riccii plaintiffs.

The Court appeared to take a giant leap from the fact that the City knew the racial distribution of the testtakers and the racial consequences of using the test to concluding, as a matter of law, that the decision not to use the scores was “because of” the race of one of the six different groups. With whites, Hispanics and African Americans in both groups of those affected positively and negatively by whatever decision that was made, it is hard to see where intent to discriminate because of race against these particular plaintiffs played any role at all.

Should civil rights advocates take Ricci as a progressive step forward?  Ricci does seem to have tremendous potential for changing the approach to proving intentional discrimination to the advantage of plaintiffs: Plaintiff can establish liability simply by proving that (1) the defendant knew the racial or gender consequences of its decision and (2) it then made that decision and (3) the plaintiff suffered an adverse employment impact. The intent to discriminate element, which traditionally has been the hardest to prove, becomes simply a question of the defendant’s knowledge of the racial consequences without more.  Not only is plaintiff’s burden of proving intent vastly simplified, the Court’s approach seems to knock out the linkage, the “because of” race element, that supposedly joins a defendant’s intent to discriminate to an adverse employment action suffered by the plaintiff “because of” the victim’s race. All that is necessary is proof that the defendant knew the race of those affected by the decision and that those adversely affected were of one race or another or, as in Ricci, of as many racial groups that are involved. Go back to the opening quote. Once the racial consequences of the use of the test were known, a huge debate broke out, with some claiming the use of the test was discrimination and others claiming the refusal to use the test was discrimination. The City picked one of those two outcomes and the Supreme Court found it liable for discrimination in making that choice. If the City had picked the other outcome, would not there just be a different group of plaintiffs claiming disparate treatment discrimination?

Let’s see how this works now that the City of New Haven has announced that it will implement the test scores to promote firefighters to the lieutenant and captain openings. Without more evidence, the outcome on all six groups is the same though the valence has flipped: As before some, but not all, white testtakers, Hispanic and African-American testtakers are positively affected by using the test scores and some members of all three racial groups are negatively affected.  Assuming no other proof of subjective intent to discriminate because of race against anyone, is the City nevertheless liable for intentional disparate treatment based against those newly affected by the decision to go ahead using the test scores?  Just as in Ricci, the City will be acting, knowing the racial consequences of its action. Only this time, those who were advantaged when the test scores were not used are now disadvantaged and vice versa. This makes the City damned if it does, and damned if it doesn’t. But, that is the outcome that logical consistency seems to require based on the minimalist grounds relied on to find, as a matter of law, disparate treatment discrimination in Ricci.

We may get to find out how this will be worked out since some African-American testtakers who will be disadvantaged if the City goes ahead with its plan to use the test scores have moved to intervene in Ricci at its implementation phase and have filed EEOC charges that the decision to use the test scores is both disparate treatment and disparate impact discrimination. Further, Briscoe v. City of New Haven involves a claim by an African-American testtaker that the test caused disparate impact because of how the test score were weighted with oral test scores to make the rank order list. Briscoe claims that if the weighting were different, he would be among those promoted.

Some might argue that it is wrong to put the City in the situation of being liable to the Ricci plaintiffs for deciding not to use the test scores and to the new plaintiffs for deciding to use the scores. If the standard is in fact to be “color-blind” in decisionmaking that affects employees, that is, that making a decision knowing its racial consequences is disparate treatment discrimination, the result may seem harsh but it seems logically to follow. Further, holding the City liable to both groups does not put it in the position of having mutually inconsistent obligations: Because of Ricci, those white plaintiffs will get promoted (as will the two Hispanics and, if openings subsequently occur within two years, up to three African Americans as well). Because of a disparate treatment challenge recently brought against the City for now deciding to use the test scores, these new plaintiffs also get a remedy, but it would not include replacing those promoted using the test scores. Since these new plaintiffs have yet to be determined to be qualified for promotion, presumably, the City would be ordered to establish a nondiscriminatory system of promotions. Then, if these plaintiffs successfully wend their way through that process, they would be eligible openings for lieutenants and captains that occur after the time span for the use of the test has passed. Presumably, they would receive as backpay and frontpay the difference between their pay as firefighters and lieutenant or captain salaries which would last until they are promoted into openings as they arise.

If the Court has adopted a something like an absolute “color-blind” test of intent to discriminate for Title VII, the only way employers can insulate themselves from disparate treatment liability is to make employment decisions behind a veil of ignorance as to race. Employers may have to follow the lead of symphony orchestras that have come to use blind auditions when selecting new members of the orchestra. If there was no other evidence of discrimination, the effective use of a veil of ignorance would seem to protect the decisions from claims of disparate treatment discrimination since the racial consequences were not known by the decisionmaker when the decision was made. The “cats paw” case that the Supreme Court recently granted cert. on may illuminate this area of discrimination law.

Where did this radical “color-blind” standard of disparate treatment discrimination come from and how can it be? While, during the Sotomayor nomination proceedings, some talking heads and commentators denounced empathy as a factor in judicial decision making, the Ricci majority, and the dissent, exude empathy for the white plaintiffs who did go to great effort and expense to prepare for the exam and thought they won the prize: test scores high enough to result in their promotions to lieutenant and captain positions. The decision not to use the test scores dashed those expectations. Justice Kennedy expressed it this way:

“[A]fter the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe.” 

One way of looking at this from a technical point of view is that the Court feels compelled to justify finding that the reduced opportunity for promotion which resulted from the decision not to use the test scores was sufficiently adverse to satisfy the “adverse employment action” element of a disparate treatment discrimination case. Without finding some present impact on these white testtakers, it might be hard to conclude that they had suffered an adverse employment action. Dashing an earned reliance interest does provide an adverse employment action even though nothing has actually happened to these plaintiffs or, in fact, to any of the testtakers. But Justice Kennedy seems to make much more out of this. It appears to be the basis for jumping past the “because of” element of a disparate treatment case so that racial consciousness satisfies the intent to discriminate element which establishes liability when an adverse employment action results from that decision, whether or not that decision was “because of race.” 

Another way of looking at this earned reliance interest issue is as a limit on the scope of application of this newly announced disparate treatment doctrine: The employer does not commit disparate treatment discrimination if its decision that is based on the known racial consequences precedes the creation of reliance interests in anyone. Planning to use some sort of employment practice, such as the written test in Ricci, can include the employer projecting what the racial consequences of that use of that practice might be and revising the plan so as to reduce disparate impact, just as long as all the action takes place before anyone has a reliance interest in the implementation of the employment practice. This meaning seems consistent with Justice Kennedy’s concurring opinion in Parents Involved, as to the ability of school boards to act to establish school attendance policies that take account of the racial populations of the different schools just as long as race is not used to decide the school to which individual students will be assigned. So, not all action when the racial consequences are known constitutes disparate treatment discrimination. But the employer must be “color-blind” when some employees have an established reliance interest. So, perhaps, employers need not establish race-blind procedures to make all employment decisions, as long as no one has any established reliance interest as stake. An important new issue will be, therefore, when reliance interests are created because, once they are, risk averse employers will use race-blind procedures.

Does anyone believe that Ricci is a tremendous progressive step making employment discrimination cases very much easier for plaintiffs? Will a majority of the Court now empathize with the African-American plaintiffs who have challenged the use of the test scores in Ricci as disparate treatment discrimination against them?  If a majority of the Court avoids finding liability as to them, how will they support such a decision, given  the logical consequences of its move toward a color-blind standard of liability in this race conscious society of ours?

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would [...]]]> UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.

Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.

The major focus of the Court turned to whether the City showed it had a strong basis in the evidence that the test was neither “job related for the position in question [nor] consistent with business necessity.” Long story short, the City had spent a lot of money hiring a test consultant who did an analysis of the lieutenant and captain jobs and then drafted a written test asking questions about information relevant to the jobs. Instead of jumping from job analysis to test writing, the next step should have been, at least under the EEOC’s Uniform Guidelines on Selection Procedures, deciding what kind of test should be constructed, if any, and what strategy should be used to validate the test. Under the classic approach established by the professional standards of industrial psychologists, a pen-and-pencil written test for a job that did not require the workers to take such tests as part of the job would have to be validated using criterion-related validation.

Criterion-related validation would require giving the test, hiring all the testtakers, doing a subsequent evaluation of their job performance and then running a correlation coefficient to determine whether the test scores correlated with their subsequent job performance scores. Since criterion-related validation is not used out in the real world, the City’s test consultant simply argued that the written test was content valid, i.e., that the written test was a sample of the lieutenant and captain jobs even though test taking was not part of the job.

Relying on content validation, even though it technically was inappropriate for this written test, would not be not risky if the City had been sued for disparate impact discrimination. Basically, the lower courts have upheld pen-and-pencil tests as content valid even though the job did not require workers to take pen-and-pencil tests as long as the defendants had spent some real money constructing and administering the tests and the test questions asked about the job. So, given the judicial abandonment of the professional test validation standards and if business necessity and job relatedness were the only issues, the City would have prevailed on its affirmative defense. With the test being held to be validated, the City could use it. So, on the issue of the validity of the written test, it is no surprise that the Supreme Court found as a matter of law that the test was job-related and justified by business necessity. If that was the only issue, the City would lack a “strong basis” in evidence that it faced disparate impact liability if it had used the test results.

But, even if a defendant proves its written test is job-related and justified by business necessity, the plaintiff has one more bite at the apple. That is by showing that the employer refused to adopt an available alternative that had less disparate impact and served the employer’s legitimate needs. The Court did discuss this and, in light of the weak “available alternative” authority that has been developed in the lower courts, it is not surprising that it found that the City lacked a “strong basis” in evidence that potential disparate impact plaintiffs would prevail on their available alternative surrebuttal claim. While shifting the weighting of the written and oral scores to reduce reliance on the written part of the exam would be an alternative that the Court indicated would have reduced the test’s disparate impact, that was not enough to establish that the test was illegal. The Court found that the City produced no evidence to show that a different weighting would be equally valid in determining who was qualified. In other words, an alternative that reduced the impact of the test was a necessary but not sufficient condition for this surrebuttal stage. There would also have to be a strong basis in the evidence that a change in weighting the scores would have adequately served the employer’s interests. While there was some testimony before the City when it was making its decision whether or not to use the test scores that the City of Bridgeport had reduced the disparate impact of its written exams by changing its weighting with an oral score, the City did not have before it any evidence that doing this would serve the City’s legitimate interests. This is a bit debatable since the claim was made that the revised system used by Bridgeport worked just fine. All in all, applying the prevailing lower court authority to this pen-and-pencil exam, it was likely that the City would not have a strong basis in evidence that it would be liable if it used the test scores. In sum, the Court pretty much applied the prevailing authority from the lower courts regarding job-relatedness, business necessity and available alternatives in deciding that the City would have won, not lost, a disparate impact challenge if it had used the test scores for promotion.

This is where the recent, post-Ricci disparate impact claim, Briscoe v. City of New Haven, comes in. Plaintiff, an African American firefighter who took the test at the same time as the Ricci plaintiffs, claims that he would have been promoted if the weighting were changed and that the weighting of 60/40 favoring the written component had a disparate impact on African Americans. Further, he claims the City knew, even before it decided to use a written test for promotions, that using this 60/40 weighting would have a disparate impact. Nothing was done about the weighting issue because it was a longstanding feature of the collective bargaining agreement between the City and the firefighters’ union even thought the existence of that contract obligation would not be a defense to a disparate impact claim. Briscoe’s claim of impact is that, of the 77 candidates for the lieutenant position, he scored the highest on the oral part of the exam, but his overall score using the 60/40 weighting left him 24^th on the list and thus not eligible to be promoted. His complaint alleges:

“The City did not believe that the 60 percent weighting that it required was job related, and it knew that the weighting would have a disparate impact on African-American candidates: for example, on the lieutenant exam immediately preceding the 2003 exam, the African-American candidates as a group performed substantially better than the white candidates on the oral exam, but they were scored much lower overall because of the 60 percent weighting given to the written test.”

The job-relatedness of the written test, as decided in Ricci, is irrelevant to Briscoe’s claim because he focuses on the impact and job-relatedness of the weight given to the written test scores, not the test itself, when those scores were combined with the oral scores to rank order those who would be promoted. The claim relies on Connecticut v Teal, where the Court upheld a disparate impact challenge to part of an overall selection process – the use of a written test – even though there was no disparate impact resulting at the end of the whole selection process. In Teal, African-American plaintiffs had flunked a written exam and so were not eligible to continue further in the selection process. Because of the impact that the written test scores had in the overall process, they could challenge the test even though when the hiring decisions were finally made there was not a disparate impact on African Americans among those hired.  

Briscoe tries to escape Ricci entirely by making his disparate impact based on fact that the liability of the City is triggered by events that all occurred before the test was administered, before the consequences in terms of the scores of different groups were known and before the City decided not to use the test results because it knew the racial consequences of using the scores. Thus, the argument will be whether or not Ricci has any relevance because Ricci’s focus was at a time after the test had been given, its racial impact was known, including the racial composition of those who would be promoted if the scores were used. In Ricci, Justice Kennedy seems to emphasize that the case focuses on what happened once the test was given.

“Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. . . . Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.”

That suggests that when the City was planning to use the written test it was required to look, rather than being restrained from looking, at the potential disparate impact of its subsequent use. In other words, Ricci only comes to bear once a test has been given and the successful testtakers have an established reliance interest in its use.

Assuming that the earlier time frame does makes Ricci irrelevant to his claim, Briscoe focuses his attack on the disparate impact of the weighting of the written and oral scores and not the rest of the test as it was constructed by the test consultant. Again, the complaint alleges that:       

“If the oral exam were weighed 60 percent and the written test 40 percent instead of the other way around, the plaintiff would be ranked ninth instead of 24^th and would be promotable. . . . If the written test were not considered [at all], . . three African-Americans would be in the top 12, and the plaintiff would be at the top of the list.”

Briscoe looks more deeply at the issue of what caused the disparate impact in the City’s promotion process than the simple recognition in Ricci that, at the end of the day, the City’s selection process caused a disparate impact on the basis of race. Based on Teal, the weighting element of the selection would appear to make out a prima facie case of disparate impact discrimination. That was not addressed in Ricci because that case focused on the justification, the job-relatedness, of the written test itself, not how the test results were to be used. 

If Briscoe establishes a prima facie case on the weighting issue, the burden of persuasion shifts to the City to demonstrate that the weighting formula it used was “job related for the position in question and consistent with business necessity.” The only evidence in Ricci about the weighting was whether it was an available alternative, an issue upon which the City failed to carry its burden of persuasion. That does not address the business necessity issue as to the weighting at all. And, even if the City did prove that the weighting formula it used was job related and consistent with business necessity, that should still leave to plaintiff the chance to prove that a different weighting formula was an available alternative that the City knew of and failed to adopt. Just because the City failed to carry its burden on that issue in Ricci, would not seem to bar Briscoe from carrying his burden unless the Ricci Court meant that, as a matter of law, the alternative of changing the weighting was not an available alternative. 

While Ricci seemed to adopt the weakened use of the professional test validation standards to justify a written test as job-related for jobs that did not involve test taking, that decision may not foreclose Briscoe. And, of course, if Briscoe is successful, that will have no negative impact on the Ricci plaintiffs, who have been and will be promoted using the results of the test that the Ricci plaintiffs and Briscoe took. If the City failed to carry its burden of proving that the weighting of the written and oral scores was job-related and consistent with business necessity, Briscoe would be entitled to a remedy. Presumably, the City would be ordered to adopt a new promotion process that would either not result in any disparate impact or, if it did, was job-related and consistent with business necessity. Briscoe would then be subjected to the new process and, if he showed himself to be qualified, would get the first opening for lieutenant after the cycle of use of the Ricci test was completed. He should also receive backpay plus front pay until he gets his promotion, with that determined by the difference between his earnings as a firefighter and what he would have earned as a lieutenant.  If, however, the City proved the test was valid but Briscoe proved on surrebuttal that an alternative was available, Briscoe would have to show that he was qualified if that alternative was used. If he did, he would be entitled to promotion once the Ricci test had run its course and back and front pay until that happens.

Given the success of the Ricci plaintiffs’ disparate treatment claim and assuming Briscoe will be successful on his disparate impact claim, the City of New Haven would appear to be damned for not considering the disparate impact before it set up the promotion procedure and then also damned for trying to take account of that impact once the test was given and the reliance interests of the successful testtakers had been established. But relief to the Ricci plaintiffs is not in conflict with relief to Briscoe: The Ricci plaintiffs get the promotions earned by their test scores and Briscoe would likely get the next opening of a lieutenant slot after the cycle for the use of the test had ended.

With that result, there would certainly be strong incentives for employers to investigate the potential disparate impact of any employment practices before using it and either modifying it to avoid that impact or be confident that its use can be shown to be job-related with consistent with business necessity with no alternative available to its use. Further, once the employment practice is implemented and there exists identifiable people who have legitimate expectations that their success pursuant to that practice would be followed, then it is likely too late for employers to refuse to honor those expectations. To fail to use the results of the practice would trigger disparate treatment liability unless the employer had a “strong basis in evidence” that it would be liable for disparate impact discrimination. One wonders, of course, whether an employer can prevent the creation of any expectations, or reliance interests, by making it clear from the start that the employer reserves the right not to use the results of the employment practice it uses.

10. A tie:

Equal protection because of sexual orientation. This adds to the idea that, at least in this group of law students, issues over sexual orientation should be resolved in favor [...]]]> With only 27 amendments so far in our long history with our present Constitution, a colleague and I asked all of our Constitutional Law students in the fall of 2005 to propose a 28^th Amendment. This was to celebrate Constitution Day, so we opened the exercise to everyone in the law school community. There was a range of responses across different areas of Constitutional law, including several structural proposals and the expansion of negative as well as of positive individual rights. Starting at number 10 and moving to number 1, here are the top 10 proposals:

10. A tie:

Equal protection because of sexual orientation. This adds to the idea that, at least in this group of law students, issues over sexual orientation should be resolved in favor of gay and lesbian rights.

Repeal of the Second Amendment. This was before Heller but the issue obviously was on the horizon for some. Since both classes used the Chemerinsky casebook that started with the problem of the Second Amendment even before Heller, that might explain the focus. I wonder if the response would be different if the law school was not located in the heart of a major city.

The right to equal education. Each year that I have taught San Antonio v. Rodriguez, a number of students express absolute shock that this is not already a protected individual right. Law students seem to be committed to education, though sometimes their contribution to it might appear a little weak on any particular day.

Constitutional protection for broad campaign finance legislation. Given the way our federal government operates, or fails to, this one is no surprise.

6. Equal protection because of sex or gender. The Equal Rights Amendment still lives in the hearts of some students, despite the expansion of the equal protection clause to cover sex discrimination.

5. A tie:          

Make explicit a constitutional right to privacy.

Prohibit the death penalty.

3. Guarantee universal health care. This may just show how long this issue has been on the agenda.

2. Presidential election by direct vote. Bush v. Gore still had impact five years later.

1. Legalize same-sex marriage or civil unions. While phrased somewhat differently, proposals on this topic constituted more than twice as many amendments as the next most popular proposal. Not one proposal was made to restrict same-sex marriage or civil unions. 

That the protection of same-sex personal relationships was first was a surprise at the time. But, this was not that long after the 2004 Election, when that issue was very prominent, with some thought that it turned the Presidential election because of anti-same-sex marriage proposals on the ballots in states like Ohio. With the passage of time and some real movement on the issue at the state law level, it would be interesting to know whether students today would still propose this amendment or whether some other issue might have captured their interest.

 There were a range of other suggestions outside the top 10, including two to overturn Roe v. Wade and several individual ones attempting to bolster Congressional power vis-à-vis the Executive or to limit Presidential power. Several seem quixotic. For example, one would prohibit everyone under age 30 from working over 40 hours per week, another would raise the voting age to 21 but reduce the drinking age to 18. This suggests that some of these students might have at least thought about contributing to President Obama’s electronic suggestion box where by far the most popular proposal was to legalize marijuana. But no one was quite bold enough to suggest that as an amendment. I wonder if the medical marijuana question might have greater salience this year.

Looking at the distribution of all of the proposals, it seems that law students prefer to think about constitutional law more in terms of individual rights – most would expand those rights – than the structural issues that in many ways have predominated before the Court and among academics  recently.

What do you think your students would propose?  I may ask my Constitutional Law students to do this again this coming semester. Maybe we should set up a national survey of law students to find out what they regard as the most pressing areas of need for amendment of our Constitution.