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More Ricci Fallout...

The estimable Mickey Kaus, citing the estimable Walter Olson, worries about employers who will get sued if they ignore the results of tests that have a disparate impact ... and sued if they don?t, but he goes on to argue that

... Justice Anthony Kennedy?s solution to this problem in the Ricci case ? that a city can?t throw out a job test that winds up promoting whites and no blacks unless there is a ?strong basis in evidence? that it would lose a subsequent discrimination lawsuit ? seems an unsatisfying solution to the litigation vise.

What if a city, after reading the Ricci decision, decides there?s just a wee a bit less than a ?strong? basis for thinking it will lose a discrimination case, and doesn?t throw out the test (lest SCOTUS smack it down)--and then loses the discrimination case anyway?

Alas, Kaus does not offer a solution of his own, nor does he seem worried now (though I suspect he will be later) about the liberal solution, which is to remove uncertainty by regarding all tests ? indeed, all employment policies or practices ? that have a disparate impact as by definition discriminatory by virtue of their disparate impact alone. As I noted two days ago, here, quoting Stuart Taylor, Sotomayor and other disparate impact mavens believe that New Haven?s refusal to promote the white (and one Hispanic) successful test-takers should have been upheld

based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a ?disparate-impact? lawsuit ? regardless of whether the exam was valid or the lawsuit could succeed.

Fortunately, the solution to this dilemma is conceptually (if not politically) easy: demote disparate impact to its proper role, which is suggestive evidence of the possibility of disparate treatment, a possibility that can be successfully refuted by an employer?s production of credible evidence that the challenged test, policy, or procedure bears a reasonable relationship to the organization?s activities. (Of course, credible evidence that an employer adopted even such a reasonable test for a discriminatory purpose would also be barred as disparate treatment.)

Full post as published by Discriminations on July 05, 2009 (boomark / email).