Monday, July 20, 2009

Did Ricci Change the Game?

I was sitting around reading a past issue of The Chronicle of Higher Education (no seriously, all the cool kids do this) when I came across Considering Layoffs? Tips for Avoiding Legal Problems (paid subscription required). I like avoiding legal problems, so I read this Q&A piece directed toward college and university employers. It included the following:
"Q: How can colleges protect themselves from discrimination claims?
A: The college's general counsel or another employment expert should examine a list of all the employees who may be laid off to make sure that a disproportionate number of affected workers are not racial minorities [or other protected class]."
Wait a second, I think I've heard this one... isn't this Ricci v. DeStefano? The New Haven Fire Department identified individuals to promote but then never followed through with the promotions because the racial statistics were "disproportionate." The result? Title VII disparate treatment liability.

Oh sure, different adverse actions: failure to promote in Ricci; layoffs in the Chronicle article. But either way, it's deciding who gets hit with the adverse employment action based on race in an effort to balance the stats.

Imagine, an employee finds out he wasn't on the original "layoff list" but then some employment lawyer (said with utter contempt) told the employer the list wasn't "white enough." The employer adds the employee to make the stats proportionate.

Terminated because of his race? Yup. Is balancing the stats a defense? I think Ricci tells us the answer is no... unless there's a strong basis in evidence that disparate impact liability existed. The article was published June 26th. Ricci was published June 28th. Did the game change in those two days? When it comes to playing the numbers game, I think it did.