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Ruth Marcus Tries To Rescue Sotomayor From Ricci

In the Washington Post this morning Ruth Marcus attempts to rescue Sonia Sotomayor from her decision to deny Frank Ricci, the white New Haven firefighter, the promotion he had earned. Sotomayor is not a ?quota queen,? she argues, because the real culprit is disparate impact law itself. ?If the appeals court got it wrong,? she writes, the reason is not Sotomayor?s devotion to quotas but rather ?in the intricate minuet dictated by federal anti-discrimination law.?

Under federal anti-discrimination law, employers (here, the city of New Haven) can be found liable for discrimination even in the absence of evidence that they intended to discriminate. If an employment practice (here, a test) appears neutral but has a ?disparate impact? on minorities ? if it is ?fair in form, but discriminatory in operation,? in the words of a 1971 Supreme Court ruling -- the employer must justify the need for the practice. (Chief Justice Warren Burger wrote for a unanimous court.) Even then, the employer could be subject to liability if there is a less problematic alternative.

I, too, have just argued (here) that disparate impact law often produces discriminatory results, that in effect disparate impact itself often has a disparate impact. My problem with Marcus?s column, and why it?s probably not right to say that she regards disparate impact law as the real culprit in New Haven, is that she seems all too willing to regard the unfairness visited upon Frank Ricci et al. as an acceptable price to pay to keep the disparate impact standard alive.

And let there be no doubt: Sotomayor herself is an avid advocate of disparate impact. If she has her way, there will be many more Frank Riccis in our future.

Full post as published by Discriminations on June 10, 2009 (boomark / email).