Legal Commentary

Is there no room for voluntary action?

By Jack M. Balkin

Today, the Supreme Court decided Ricci v. DeStefano, a case in which firefighters in New Haven challenge the city?s decision to ignore the results of a test it had designed and offered as a basis for promotion. If promotions had been based on the test results, no African-Americans would have been eligible for the 15 available positions. Looking at these results, the city civil service board deadlocked over whether to certify the test results, effectively halting the promotions. Today the Court held that the city?s failure to certify the results was a race-based decision in violation of Title VII of the Civil Rights Act.

Justice Kennedy, writing for the Court sees the city as caught between a rock and a hard place. The rock is the disparate treatment prong of Title VII which, as Kennedy interprets it, forbids employers from basing hiring or promotion decisions on race. So, thinking about the racial make-up of the work force is verboten. The hard place is the disparate impact prong of Title VII which requires employers to make sure that racially neutral methods, like written tests or height requirements, which have a disparate impact on minorities or women actually test for knowledge and abilities important for the job. This part of the law requires an employer to be conscious of the racial make-up of its workforce in order to root out unnecessary practices that block women and minorities. What?s an employer to do?

Justice Kennedy resolves the problem by finding that an employer may consider race only when there is a ?strong basis in evidence? that the hiring procedure would violate the disparate impact prong of the law. As Justice Ginsburg, dissenting in the case, points out, this approach will leave employers with very little leeway to voluntarily work to root out hiring policies that inadvertently leave out minorities or women. Imagine the following case: an employer adopts a hiring method that produces a disparate impact. However, the method also identifies qualified candidates. A different and more expensive test would do as well without producing as strong a statistical disparity. A court might well rule that because the second test also produces some disparate impact, albeit less, and is significantly more costly, an employer is not legally required to use it. That seems fine. But if Justice Kennedy is right that there really is very little light between what the disparate impact prong requires and what the disparate treatment prong forbids, then this employer would be forbidden from voluntarily incurring this cost in order to do its best to have fairer hiring policies. This is a mistake.

The Court?s approach leaves too little room for employers to do this because of the way it interprets the disparate treatment prong of Title VII. In fact, Kennedy?s opinion expressly begins with the following premise: ?The City?s actions would violate the disparate treatment prohibition of Title VII absent some valid defense.? But does it? After all, the action at issue here is scrapping the test. This is not a race-based action. Unless, that is, you look inside the minds of the city officials and hypothesize that the reason they scrapped the test was to achieve racial balancing. Then it looks like the action is indeed based on race. But one can, as easily, describe their intention as trying to comply with Title VII. Which is it? The several opinions in the case spend considerable time debating this point. Not only is this a difficult empirical question to resolve, but both the majority and dissent err in making the city?s intent the touchstone of whether there is a violation of Title VII here.

Rather than delving into the internal recesses of the minds of government officials, the relevant issue should be the objective aspects of the action itself. Here are the facts. The city declines to base promotions on an exam that produces a statistically disparity in test passage. Is this action permissible? We don?t need to know why the Board scraps the test. All we need to know is that the test does produce a disparate impact. May a city abandon a test it designed and offered when this will be the result? The disparate impact prong of Title VII encourages this conduct and the disparate treatment prong of the same law should not be interpreted to forbid it.

Full post as published by Balkinization on June 29, 2009 (boomark / email).