The Ricci decision by the Supreme Court has two significant consequences that have, to my knowledge, completely escaped notice in the media and in critical analyses of the Court's opinion. The first consequence is that the Court's ruling expands both the scope of Title VII and the Court's discretion in interpreting and applying it, a result seemingly at odds with the conservative judicial philosophy of the Roberts Court. The second consequence is that the principal means of redressing disparate effects on minorities of employment decisions has largely been revoked; the "disparate impact" provisions in Title VII that previously applied only to minorities were extended by the Supreme Court to white, majority claimants as well, in direct contravention of Congress's will as expressed in the Civil Right Act of 1991.
The Court's decision is a brazen act of judicial activism by the Court, bordering on intentional defiance of Congress.
The Expansion of Title VII
The purpose of Title VII is to provide a remedy for (i) intentional acts of employment discrimination based on race, color, religion, sex, and national origin, and (ii) for acts not intended to be discriminatory but which have a disproportionate adverse effect on minorities. In other words, anyone can allege actual and intentional discrimination on a prohibited basis, but only minorities can seek redress for practices that have a disproportionately adverse impact. This is the law and, according to Justice Kennedy's majority opinion, it continues to be the law:
"Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin...(disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities... (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs."
The Supreme Court expanded the scope of Title VII in the following respects, among others:
- There is no longer any need to demonstrate actual and intentional racial animus or preference in order to prevail on a claim of intentional employment discrimination.
- Where a plaintiff making a disparate impact claim formerly had the burden of demonstrating that there were available to the employer criteria for employment decisions that were equally suited to the employer's legitimate business purposes but less disparate in racial impact, by alleging intentional employment discrimination the plaintiff can shift the burden to the employer to demonstrate that he had a "strong basis in evidence" to believe that such criteria were NOT available.
- Whereas the employer's subjective intent to comply with Title VII was formerly a defense to a Title VII claim, the Ricci decision deems the subjective intent of the employer irrelevant. An employer is liable under Title VII unless he can demonstrate that he had a "strong basis in evidence" to believe that he would have been liable under Title VII had he taken an alternative action. For instance, if the employer disparately impacted a minority by upholding exam results for promotions, he must now demonstrate that he had a strong reason to believe he would have been liable under Title VII had he rejected the exam results.
These three changes in the interpretation of Title VII represent a significant expansion of the scope of the statute, an unexpected outcome given the ideological proclivities of the Court's majority in the Ricci decision. But while the scope of Title VII is nominally expanded, the consequences of these expansions in concert is the evisceration of Title VII's disparate impact provisions that have protected minorities.
The Expansion of the Court's Power and Discretion
The Supreme Court's willingness to override the decision of the democratically elected government of New Haven to set aside the firefighter exam results attracted some attention in the media (Chuck Todd almost impishly taunted Joe Scarborough with the observation that the court appeared to have engaged in unabashedly legislating from the bench). While conservatives frequently cite a court's decision to override the decision of an executive or a legislative body as an example of "judicial activism", a court's overruling an action by another government branch is not necessarily judicial activism. Judicial activism inheres in a court's willingness to either impose its policy in an area where the legislature declined or neglected to set policy or, as in the Ricci case, act in defiance of legislatively adopted policy.
The Ricci court expanded its power at the expense of Congress and at the expense of local governments in two ways:
First, it impinged on Congress's prerogatives by reversing Congress's decision that a "disparate treatment" claim (as opposed to a "disparate impact" claim) require a demonstration of actual discriminatory intent and by expanding "disparate impact" claims so that they are available to white, majority claimants as well as minority claimants. Each of these actions are in direct contravention of the Civil Rights Act of 1991.
Second, prior to Ricci an employer's subjective belief that it was complying with Title VII was considered compelling evidence of an absence of any intent to discriminate. The reasons behind this judicial approach are obvious. The Ricci court, however, imposed a standard that can result in a finding of intentional discrimination even in the absence of any evidence of actual intent to discriminate and in the face of evidence that the employer subjectively believed it was complying with Title VII. In other words, prior to Ricci an employer was protected from Title VII liability if it reasonably believed its action was compelled by Title VII. After Ricci, courts are constrained by the Supreme Court's ruling to completely set aside the judgment of the employer and substitute in its place the court's interpretation of Title VII. If the court's interpretation of Title VII's disparate impact provisions is different than the employer's, the employer will be liable for intentional discrimination under Title VII, even in the absence of any evidence to establish actual discriminatory intent. This is another form, and another example, of rampant judicial activism.
Why Would Roberts, Alito et al Expand the Scope of Title VII?
Why would Roberts court do this? In order to establish a "reverse discrimination" precedent that creates a "disparate impact" claim for whites. Prior to Ricci, whites couldn't avail themselves of disparate impact claims, and so were left only with "intentional discrimination" claims. The New Haven firefighters, recognizing that they could not make disparate impact claims, filed an intentional discrimination claim, alleging that (i) the city's rejection of the exam results had disproportionately affected white firefighters, and (ii) the city had been motivated by matters of political patronage (as contrasted with racial animus to whites or preference for blacks). The New Haven firefighters did not allege, and the court did not find, that the city of New Haven was motivated by either racial animus to whites or racial preference for blacks.
Each of the three steps taken by the Ricci court to broaden the scope of Title VII were essential to creating a "disparate impact" claim for whites out of thin air and in defiance of Congress. As discussed above, step one involved discarding the "intent" standard applied by the lower courts and substituting the "strong basis in evidence" standard, an action perfectly incompatible with Congress's desire that Title VII claims by whites require a demonstration of actual, intentional discrimination. Justice Kennedy's obliviousness to this is stunning:
Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.
In other words, the New Haven firefighters' claim of intentional employment discrimination would prevail even if the City of New Haven were motivated simply by a desire to avoid violating Title VII and had no intent to discriminate on the basis of race. In Justice Kennedy's view, if New Haven erred in its interpretation of Title VII's disparate impact provisions, then the firefighters should prevail on their claim of intentional discrimination even in the absence of any evidence of actual, intentional discrimination.
Kennedy performs this legal legerdemain with another example of stunning judicial obtuseness. Whereas prior courts had concluded that a subjective intent to comply with Title VII's disparate impact provisions protected an employer from any inference that it had been motivated by racial animus or preference and therefore had engaged in intentional discrimination, Kennedy concludes that New Haven's setting aside of the exam results was ipso facto an act of racial discrimination in the sense that it was motivated by a concern that not enough African Americans had passed, and that this instance of intentional discrimination is excused under Title VII only by a "strong basis in evidence" that New Haven's upholding of the exam results would have violated Title VII's disparate impact provisions. Kennedy's analysis, however, sets up a tautology that virtually eliminates any distinction between intentional discrimination and "disparate impact" violations of Title VII. Under Kennedy's analysis, New Haven had to have a "strong basis in evidence" that it had violated the disparate impact provisions in order to avoid liability under the intentional discrimination provisions, an approach that almost eliminates the distinction between intentional discrimination and disparate impact claims under Title VII.
Having virtually eliminated any distinction between intentional discrimination and inadvertent "disparate impact" claims, Kennedy takes another step that not only further reduces any distinction but arguably makes it easier for claimants to prevail with intentional discrimination claims than disparate impact claims. Whereas plaintiffs alleging disparate impact violations under Title VII have the burden of demonstrating that another test or employment criteria would have had a less racially disparate impact while preserving the legitimate business objectives of the employer, Kennedy imposes upon an employer defending against an intentional discrimination claim the burden of demonstrating that it had a strong reason to believe that such alternative test or criteria existed.
Kennedy's shift of this burden from plaintiff to employer has the anomalous consequence that plaintiffs with disparate impact claims will frequently be better off making intentional discrimination claims in order to shift the burden of demonstrating the existence of alternative, less racially disparate tests and criteria to the employer. With this shift of evidentiary burdens, Kennedy effectively eliminates any substantive distinction between intentional discrimination claims and disparate impact claims, a result clearly in conflict with the Civil Rights Act of 1991.
It is a measure of the Ricci majority's confusion and utter lack of judicial self-awareness that Scalia could make the following statement in his concurring opinion:
"It is one thing to free plaintiffs from proving an employer’s illicit intent, but quite another to preclude the employer from proving that its motives were pure and its actions reasonable."
This, of course, is precisely what Kennedy did in the majority opinion, freeing plaintiffs in intentional discrimination cases from proving any illicit, discriminatory intent, and so it is amazing to consider that Scalia was referring to Title VII's disparate impact provisions. Scalia is apparently completely unaware that he and the Court's majority had created in the intentional discrimination provisions of Title VII precisely the defect he perceives in the disparate impact provisions.
The Priorities of the Roberts Court
What is most striking and most disturbing about the Ricci decision is the unavoidable inference that the Roberts court was willing to subordinate its notions of judicial activism and strict statutory construction - the core of its professed conservative judicial philosophy - to its efforts to achieve complete color blindness in the law, an objective that will completely strip Congress of its ability to redress racial imbalances, completely destroy affirmative action in any form, and effectively eliminate the racially ameliorative power of Title VII disparate impact provisions by making them equally available to the white majority.
It is increasingly apparent that the Roberts court believes that the paramount racial issue in 21st century America is "reverse discrimination" against whites, a belief so at odds with the evidence that it can only be attributable to a radical racial ideology tantamount in many respects to white supremacy.
The Roberts Court is a complete disgrace.