SCOTUS: A Reverse Discrimination Claim is Just Another Discrimination Claim

Yesterday, the Supreme Court issued a unanimous decision in Ames v. Ohio Dept. of Youth Services. No surprises here. The plaintiff in Ames was a heterosexual employee who was passed over for a job in favor of a lesbian woman. Ames claimed that she was discriminated against based on her sexual orientation. 

Justice Jackson

Some circuit courts (although, notably *not* the Third Circuit where I practice) had held that a plaintiff in a Title VII discrimination claim who is a member of a majority group must make an additional showing of "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." This created a higher evidentiary standard for plaintiffs in a majority group. 

The SCOTUS opinion, authored by Justice Jackson eliminated this extra requirement: "We hold that this additional 'background circumstances' requirement is not consistent with Title VII’s text or our case law construing the statute." And, "the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group." So, a reverse discrimination claim is just another discrimination claim. 

This was pretty much a foregone conclusion before the opinion even came out, but now it's official. Perhaps more interestingly, Justice Thomas (joined by Justice Gorsuch) signaled "In a case where the parties ask us to do so, I would be willing to consider whether the McDonnell Douglas framework is a workable and useful evidentiary tool." The framework is currently used in disparate treatment claims based on circumstantial evidence (which is most of them), and McDonnell Douglas is one of the most cited SCOTUS decisions ever. 

How much younger do comparators have to be in age discrimination cases?

In discrimination cases, plaintiffs often rely on comparators. If the plaintiff was treated worse than a similarly situated co-worker who differs from the plaintiff with regard to a protected characteristic, then that creates an inference of discrimination. 

Not official use.

Ordinarily, there's not much dispute about whether the comparator is a different race, or sex, or national origin. But, age discrimination poses a unique problem. No joke, I once had a plaintiff try to use someone 8 days younger than him. Was that really evidence that the employer discriminated based on age? Of course not! So, how much younger does the comparator have to be before the Court will infer age discrimination?

Here in the Third Circuit, including Pennsylvania, that cut-off appears to be in the 5-7 year range. See, Narin v. Lower Merion School District, 206 F.3d 323, 333 n.9 (3d Cir. 2000) (7-year age difference between 56-year-old plaintiff and 49-year-old comparator was insufficient to “permit an inference of discrimination”); Gutknecht v. SmithKline Beecham Clinical Lab., 950 F. Supp. 667, 672 (E.D. Pa. 1996) ("Although no uniform rule exists, it is generally accepted that when the difference in age between the fired employee and his or her replacement is fewer than five or six years, the replacement is not considered sufficiently younger, and thus no prima facie case is made").

Third Circuit: Lateral transfer is not an adverse employment action for discrimination claim

Hardly groundbreaking stuff here, but it is an issue that pops up from time to time. A disparate treatment employment discrimination claim requires an adverse employment action. 

In Anderson v. The Mercer Cty. Sheriff Department, the Third Circuit held that a sheriff department employee who was transferred to criminal court security did not suffer an adverse employment action. It was a lateral transfer:

[I]t did not cause a significant change in her employment status. Approximately fifteen other officers were transferred at this same time, and Anderson does not allege that her responsibilities at the criminal courthouse were significantly different from the functions of other sheriffs.

She tried to bolster her claim by alleging that the courthouse was contaminated with asbestos, and she had a doctor's note that it would be detrimental to her health. No dice. The asbestos-related symptoms did not arise until 2012, about two years after the transfer.  

Third Circuit re-affirms that comparator evidence is not necessary to establish a prima facie case of discrimination

Last week, the Third Circuit issued a nonprecedential opinion in Feng v. Univ. of Delaware. The Court reversed a trial court's decision to grant summary judgment on Feng's Title VI national origin discrimination claim. Feng alleged that he was doing well at school, until the University forced him to enroll in a heavier courseload to maintain his immigration status.

The trial court granted summary judgment because Feng failed to proffer any similarly situated comparators to support his discrimination claim. Such evidence is not necessarily required though - plaintiffs may also establish a prima facie case of disparate treatment discrimination by otherwise showing an inference of discrimination, or providing direct evidence of discrimination.

Not official use.

“Although comparative evidence is often highly probative of discrimination, it is not an essential element of a plaintiff’s case.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 268–69 (3d Cir. 2010) (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 353 (3d Cir. 1999)).

The Court noted a factual issue regarding the source of the requirement that Feng take a heavier courseload. It was not clear whether federal law actually required it, or rather left the definition of the required "full course of study" to the discretion of the university. "Rather than attempting to disentangle the facts," the Third Circuit remanded to the district court.

Thoughts on "Preferably Caucasian" job posting

Uh, hey @cynetjobs - what's with this?

Your job listing for a mid-senior level business development position's top qualification is "Preferably Caucasian"

How could you POSSIBLY think that's okay? pic.twitter.com/DPWzpgXqqE

— Helena McCabe (@misshelenasue) April 27, 2019

No.

No, no, no, no, no, no, no.

Takeaways: No.

11th Circuit on "similarly situated" comparators

In my experience, very few discrimination cases include "direct evidence" - the proverbial smoking gun. Instead, plaintiffs rely on circumstantial evidence to imply discriminatory intent. The most common way to do this is for the plaintiff to point to other employees (outside of the plaintiff's protected class) who did not receive the same adverse employment action.

Not official use. 

To draw a valid comparison, the plaintiff and the comparators must be "similarly situated." That just makes sense. A different supervisor treating a different person with a different job under different circumstances differently is hardly evidence of discriminatory intent on behalf of the employer. The 11th Circuit's opinion in Lewis v. City of Union City answers the question: just how similarly situated do they have to be?

The majority opinion of the en banc panel concluded that comparators must be "similarly situated in all material respects." The Court describes this standard as the "sweet spot" between the too-lenient "comparison that is not useless" standard and the too strict "nearly identical" standard.

Although the analysis will depend on the circumstances of each case, the comparator will "ordinarily"

• "have engaged in the same basic conduct";
• "been subject to the same employment policy, guideline, or rule";
• "have been under the jurisdiction of the same supervisor";
• "share the plaintiff's employment or disciplinary history."

To wrap-up, "comparators must be sufficiently similar, in an objective sense, that they cannot reasonably be distinguished." (internal quotations omitted). It is important to note that the test varies (in some cases fairly significantly) from circuit to circuit. 

Kavanaugh, Lateral Transfers, and Disparate Treatment

To win a disparate treatment claim under Title VII, the employee must show that (s)he suffered an "adverse employment action." In Ortiz-Diaz v. HUD, the D.C. Circuit held that the employer's denial of a lateral transfer did not meet this standard (citing past precedent requiring "diminution in pay or benefits" or other "materially adverse consequences").

SCOTUS nominee, Judge Kavanaugh, filed a concurring opinion. He agreed that under existing D.C. Circuit precedent, denial of a lateral transfer was generally not an adverse employment action, but he wrote a very short opinion (this is it, in its entirety) to express skepticism about that precedent:

I join the majority opinion because it faithfully follows our precedents. Our cases hold that lateral transfers to different positions or posts with the same pay and benefits are ordinarily not changes in the “terms, conditions, or privileges” of employment. I write this concurrence simply to note my skepticism about those cases. In my view, a forced lateral transfer—or the denial of a requested lateral transfer—on the basis of race is actionable under Title VII. Based on our precedents, however, I join the majority opinion.

3d Cir.: Paid Suspension "Typically" not an "Adverse Employment Action" Under Title VII

To state a claim for "disparate treatment" discrimination under Title VII, the plaintiff must allege that (s)he suffered an "adverse employment action." The statutory language encompasses hiring, firing, and “compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1).

In Jones v. SEPTA (opinion here), the Third Circuit addressed an issue of first impression (that means they have never addressed it before): Does a paid suspension constitute an adverse employment action? In short, the Court answered "no." The Court pointed to a number of other circuit courts that have held the same way, concluding "we think this chorus is on pitch."

Two caveats to attach to this holding:

1. The Court left itself some room to distinguish this case from other situations. For example, they held that a paid suspension "typically" does not constitute an adverse an employment action. So, there's a little (in my opinion, not much) wiggle room.


2. The standard for an adverse action in the retaliation framework is different, and easier to establish. The Court specifically noted "we need not consider and do not decide whether a paid suspension constitutes an adverse action in the retaliation context." 

The Court marked Jones "Precedential."

2d Circuit Weighs in on "the Manager Rule" and Pleading Standards

Earlier this month, the Second Circuit issued its opinion in Littlejohn v. City of New York addressing "the manager rule" under Title VII retaliation claims.

Sometimes, in retaliation cases, the employee claiming to have opposed discrimination also has a job responsibility that involves policing discrimination in the workplace. In litigation, employers will often argue that the employee has not really engaged in "protected activity" because the employee was just doing his or her job... not really opposing discrimination as contemplated in Title VII. Let's cut straight to the holding:

To the extent an employee is required as part of her job duties to report or investigate other employees' complaints of discrimination, such reporting or investigating by itself is not a protected activity under § 704(a)'s opposition clause, because merely to convey others' complaints of discrimination is not to oppose practices made unlawful by Title VII. But if an employee—even one whose job responsibilities involve *5656investigating complaints of discrimination—actively "support[s]" other employees in asserting their Title VII rights or personally "complain[s]" or is "critical" about the "discriminatory employment practices" of her employer, that employee has engaged in a protected activity under § 704(a)'s opposition clause.

The Court tried to contrast "just doing her job" with personal opposition to discrimination. This sounds like a good rule, but I suspect it will often be easier recited than applied. We'll see.

If you're into pleading standards for discrimination claims in a post-Iqbal-Twombly world, the Court also addressed that. Frankly, I think they dragged the analysis out a little longer than necessary... but ultimately reached what I think is the inevitable conclusion on this issue: The plaintiff must allege facts that establish a prima facie case under the McDonnell Douglas test (assuming it's a circumstantial case - obviously, allegations of direct evidence of discrimination would also suffice).

The tricky part is the discrimination prong of that initial analysis. The Court held that the plaintiff must allege facts that "give plausible support to a minimal inference of discriminatory motivation."

Some thoughts on EEOC v. Abercrombie

Now that I've had a chance to read the full opinion in EEOC v. Abercrombie, here are a few thoughts. First, some background:

An assistant manager at A&F interviewed an applicant who wore a headscarf to the interview. The assistant manager believed the applicant wore the headscarf for religious reasons but did not know for sure. When the assistant manager contacted the district manager, the district manager concluded that the headscarf violated A&F's "look policy" and directed the assistant manager not to hire the applicant.

1. The holding is straightforward:

Justice Scalia, author of the majority opinion.

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.

2. Title VII does not impose a knowledge requirement. The Court focuses instead on the employer's motives:  

[T]he intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge.

3. This holding probably does not apply to disability accommodations under the ADA:

It is significant that §2000e–2(a)(1) does not impose a knowledge requirement. As Abercrombie acknowledges, some antidiscrimination statutes do. For example, the Americans with Disabilities Act of 1990 defines discrimination to include an employer’s failure to make “reasonable accommodations to the known physical or mental limitations” of an applicant. §12112(b)(5)(A) (emphasis added). Title VII contains no such limitation.

4. What is the practical impact on interviewers?

Justice Thomas derides the majority as creating "an entirely new form of liability: the disparate-treatment-based-on-equal-treatment claim" (because A&F's policy was facially neutral and applied to non-religious headwear such as baseball caps too). Justice Alito (concurring in the result) notes a hypothetical in which an employer requires applicants to work on Saturdays, and some applicants cannot work on Saturdays due to religious obligations.

In that hypo, what does an employer do when it tells an applicant that the job requires Saturday shifts? What if the employee says something vague, like "I can't work on Saturdays." What does the interviewer do then? Will the employer now have to ask why the employee cannot comply with the Saturday requirement? Will this holding make religion a topic of conversation in job interviews? If the employer refuses to hire that person, who later turns out to be unavailable for religious reasons, was the employer motivated by his need for an accommodation?

The majority appears to require (though does not expressly enumerate it as an element of the case) a "suspicion" element:

For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

What level of suspicion is necessary? What if the interviewer has no clue why the applicant can't work on Saturdays, but knows that religious conflict is at least a possibility? In my opinion, the majority opinion fails to adequately explain this (Justice Scalia explains this omission in footnote 3 - although, I understand his point, this omission leaves great uncertainty in this area).

Just in: SCOTUS on Disparate Treatment Claims by Applicants for Reasonable Accommodations

The Supreme Court just released its opinion in EEOC v. Abercrombie and Fitch. Justice Scalia, in an 8-1 decision (J. Thomas dissenting in part):

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.

(per the syllabus). I'll read the whole opinion and provide further analysis.

Yoga Instructor "Too Cute" for Playmate and Husband

So, a yoga instructor filed a lawsuit late last year claiming she was fired for being "too cute." The defendants are a playboy playmate and her husband. I know, I know, you want to see the goods. Well here you go (it's a link to the Complaint, what else would it be?).

If for some reason you want to see pictures of the parties, they're here. And no, not *those* pictures. You can find those yourself (but they probably require a subscription).

The lawsuit is framed as a gender discrimination/sexual harassment lawsuit. The plaintiff basically claims she was fired because the playmate was jealous and suspected something was going on between her husband and the yoga instructor (which she denies).

Does this sound familiar? I think we have Iowa case law on point here. Remember the "irresistible" dental assistant? The Court concluded it was lawful for an employer to fire a woman because his spouse was concerned about the nature of their relationship.

That's not binding on New York courts (where this lawsuit was filed) though. The defendants here argue that terminating someone for "attractiveness" is not illegal (but you already knew that because you clicked the link with the pictures).

Maybe the "too cute" yoga instructor, the "irresistible" dental assistant, the "too hot" banker, and the "too busty" data entry specialist should start a non-profit to protect the extraordinarily attractive in the workplace. Or perhaps lobby for legislation on this issue . . . .

"Firing someone because of lactation or breast-pumping is not sex discrimination" - COTW #79

In a case that has been around the blogosphere and back again, Judge Lynn Hughes of the Southern District of Texas held that discriminating against lactating women was a-ok as a matter of law. You can read the full opinion for EEOC v. Houston Funding here, and it's the Lawffice Space employment law case of the week!

The employee in this case had a baby in December 2008. She was out of the office for about nine weeks and decided to call and let her employer know that she was ready to return. During the call, she claims she asked if she could use a back room to pump milk . . . and they fired her . . . because they discriminate against women who lactate. Can you believe it?

Frankly, I'm skeptical. The employer claims it fired her for job abandonment and actually made the decision prior to the call. During the call, they explained to her that they had filled the position because they had not heard from her. But, the EEOC brought this (what I would call) "test case" so they're giving this theory a whirl. So, far the test is not going well.

The opinion's analysis was brief and to the point:

[L]actation is not pregnancy, childbirth, or a related medical condition. She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination . . . . Even if [the employee's] claims are true, the law does not punish lactation discrimination.

And that's the end of that (until appeal).

So, can employers really discriminate against women who ask to pump milk at work? I'll offer two quick points on the subject:

1. This judge's opinion is . . . how to put this nicely . . . "conclusory." It contains no serious analysis, and I think it is possible, nay plausible, nay probable that other courts will see this matter differently.
2. "Obamacare" amended the FLSA to require reasonable break time (and a reasonable space) for nursing mothers.

This case of the week aside, I'm leaning towards "no, an employer cannot discriminate against lactating mothers," but we shall see.

There are about a quadrillion other blog posts on this topic. I'll just point you to Jon Hyman's (which itself links to many more).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Fired for Giving James Franco a 'D'?

Did you know James Franco, award-winning actor from 127 Hours, got a 'D' in acting class? Actually, it was a class about directing actors... but let's not take away from the irony. You may be wondering how I am going to tie this in to employment law. Turns out, it's not a hard transition at all - the professor who gave Franco that grade just filed a lawsuit in a New York state court.

(I just had a flash back to my teachers always saying: "I don't give grades, you earn them"... but I digress)

A copy of the complaint is here, courtesy of TMZ. Obviously, the media is going crazy over the James Franco part, but the case is based on racial discrimination and harassment, and retaliation. The professor claims he had an inferior office (described as a supply closet), he was paid less, and he was denied reappointment (ordinarily a "mere formality") because of his race.

I actually found the Franco discussion a bit odd. The complaint discusses a conflict of interest with Franco hiring another professor, and mentions that Franco missed 12 of 14 classes (thus earning his D - although, it makes you wonder what it takes to get an F!). It's not clear to me how this supports the discrimination claim. If he was actually let go because he gave Franco a D, then that sounds like a non-discriminatory reason, doesn't it?

We'll have to wait and see how it plays out. Here is a YouTube clip of Franco discussing his D (email subscribers can click here to view online):



Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

3rd Circuit: Performance Improvement Plan Not an Adverse Action

When employees receive poor performance reviews, employers will often give them an opportunity to redeem themselves. Of course, it's only fair to provide employees with a plan for reaching acceptable performance standards. In HR terminology, this is often referred to as a Performance Improvement Plan or "PIP,"

To state a claim for discrimination under most legal theories and employment discrimination statutes, the employee must have experienced an "adverse employment action." The Supreme Court has recognized hiring, firing, failing to promote, reassignment with different responsibilities, and changes in benefits as adverse actions. But what about PIPs?

The Third Circuit recently answered that question in an unpublished opinion in Reynolds v. Dept. of Army, No. 10-3600 (June 22, 2011). In short: No, PIPs are not adverse employment actions. More specifically:

A PIP differs significantly from the types of employment actions that qualify as adverse . . . . PIPs are typically comprised of directives relating to an employee’s preexisting responsibilities. In other words, far from working a change in employment status, a PIP is a method of conveying to an employee the ways in which that employee can better perform the duties that he or she already has. We note that a likely consequence of allowing suits to proceed on the basis of a PIP would be more naked claims of discrimination and greater frustration for employers seeking to improve employees’ performance. Thus, because [Plaintiff] failed to demonstrate that his PIP was accompanied by an adverse change in the conditions of his employment, we hold that [Plaintiff's] placement on the PIP did not qualify as an adverse employment action.

The Third Circuit joins the Seventh, Eighth, and Tenth Circuits in holding that PIPs are not adverse employment actions for purposes of employment discrimination claims.

HT Maria Danaher, Employment Law Matters: Performance Improvement Plan (PIP) is not an "adverse employment action" for purposes of federal anti-discrimination laws, including a copy of the opinion.

Image: Public domain work of federal government; Not official use or endorsed by federal court.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Lewis and Ledbetter Distinguished

Why did Lewis come out differently from Ledbetter? Lawffice Space readers are already aware of Lewis v. City of Chicago (Opinion | Overview | Lewis and Ricci Combined | More Thoughts). And anyone who follows employment law is aware of Ledbetter v. Goodyear.

Lewis held that a disparate impact claim accrues upon the application of an employment practice or policy - in other words, the limitations period does not begin solely upon the initial adoption of the practice, but resets upon the application of that practice.

By contrast, Ledbetter held that the statute of limitations for a disparate treatment claim does not reset upon the application of a prior discriminatory act. Specifically, the limitations period does not reset upon the issuance of a paycheck that is lower - effectively tainted - because of past discrimination. It was a controversial decision which was essentially mooted by the enactment of the Fair Pay Act.

So why did Arthur Lewis win, while Lilly Ledbetter lost? Some (apparently including Congress) would argue that Ledbetter was just wrong. The Supreme Court, however, offered this explanation in Lewis:

For disparate-treatment claims—and others for which discriminatory intent is required—that means the plaintiff must demonstrate deliberate discrimination within the limitations period. But for claims that do not require discriminatory intent, no such demonstration is needed.

In short, the Court points out that the gravamen of a disparate treatment claim is intent; so, subsequent effects are irrelevant if there's no discriminatory intent (such as upon the routine issuance of a paycheck). Meanwhile, a disparate impact claim is based on effects. Hence, disparate impact claims can occur upon the mere application of a practice, even absent discriminatory intent, because it's the effects that matter.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

The Combined Lesson of Lewis and Ricci

My latest entry on ELinfonet is up: Learning Lewis but Remembering Ricci. In this post, I combine the Supreme Court's opinions in Lewis v. City of Chicago and Ricci v. DeStefano (Lawffice Space series on each opinion) into a comprehensive game plan for employers.

Court-watchers may recall that the Supreme Court faulted the fire department in Ricci for not following through on its testing despite racial disparities in the results. Then in Lewis, the Court faulted another fire department because it kept using the test results despite the disparate impact.

My new post helps sort out when to GO and when to STOP.

See also, my other posts on ELinfonet.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

The Too-Pretty Protected Class?

Last month, I blogged about the Un-pretty Protected Class - an argument for protecting the less attractive from employment discrimination. Little did I know that there was an even bigger problem brewing: discrimination against the overly attractive! Business Insider has the scoop on Woman Says Citibank Fired Her Because She Was Too Hot.

Now, before you roll your eyes... too late? OK, well now that you've had a chance to roll your eyes, read this brilliant (and I am not being sarcastic) comment from the "hot" woman:

Where I'm from, women dress up—like put on makeup and do their nails—to go to the supermarket... I was raised very Latin. We're feminine. A woman in Puerto Rico takes care of herself.

Do you see what just happened there?

You see, the headline is that she's "too hot" (not a protected class); but she frames the problem as her employer not allowing her to be feminine, the way women from Puerto Rico are... you know, Latin women. All of a sudden we have possible sex, gender-stereotyping, color, race, and maybe even national origin*-based discrimination claims! All of which are protected under Title VII.

Sometimes, it's all in the way you frame the issue!

HT: Stephanie Thomas aka ProactiveStats via Twitter.

*Some courts have assumed arguendo that Puerto Rican is a "national origin" for Title VII claims; see Feliciano de la Cruz v. El Conquistador Resort and Country Club, 218 F.3d 1 (2000).

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

Ricci II - Disparate Impact

I'm sure you remember Ricci v. DeStefano, the New Haven white firefighters case. In that case, the white firefighters filed a Title VII disparate treatment claim when the fire department refused to certify the results of a promotion test. The City argued it was afraid of a disparate impact claim because the results were statistically skewed against the black firefighters that took the test.

The Court held that skewed stats were no reason to ignore the results of the announced process for promotion. Instead the City needed a "strong basis in evidence to believe it will be subject to disparate-impact liability." The Court found that no such "strong basis in evidence existed" and granted summary judgment for the white firefighters. Well, guess what? Now, one of the black firefighters filed a lawsuit. Wanna guess his theory? Yup, disparate impact.

According to the New York Times, Michael Briscoe alleges the test was "was unfair because it undervalued the oral portion of the test, on which he did better." The promotion test was 60% written and 40% oral. Due to the high profile of the original case, I'm sure this one will get significant media attention if it gets any traction in Court.

UPDATE (10/17/09): A copy of the Complaint is available online (via Law Professor Blogs Network).

Additional Resources

Lawffice Space Coverage of Ricci v. DeStefano

• Ricci - The Majority
• Ricci - Ginsburg's Dissent
• Scalia, Equal Protection, and the Future of Disparate Impact
• Alito, the Reverend, and Sotomayor

Media Coverage of Briscoe's Suit

• Business Insurance Magazine
• Yale Daily News

Ricci - The Majority

On Monday, the Supreme Court issued its opinion in Ricci v. DeStefano... or, as the media calls it, the New Haven white firefighters "reverse discrimination" case. Today, I will provide an objective summary of only the majority opinion. Frankly, there seems to be a dearth of commentary from people who both understand the issues and aren't attempting to make Ricci about Sotomayor's racism/mainstreamism/incompetence/essentialness.

The Background

The New Haven fire department administered a test in order to identify candidates for promotion to officer positions. The City made efforts to ensure the test was race neutral including hiring outside consultants. When the results came back, however, everyone who would have been promoted was white (and two Hispanics).

The Inherent Conflict

Deciding not to promote the pool of candidates because they are "too white" is discriminatory... but only promoting white people and no black candidates is also discriminatory. Either way, the City might violate Title VII.

Why? Title VII prohibits, among other things, racial discrimination that results in "disparate treatment"... it also prohibits "disparate impact." In other words, employers must treat individuals the same way regardless of race. At the same time, employers' policies must not impact races disproportionately.

To some extent, therefore, Title VII requires both equal treatment and equal results. Here, the employer got different results... but the only way to try to get more balanced results is to deny promotions to candidates based on race (aka "treat them differently").

A major technicality here is that the disparate impact is justified where the policy is "job related for the position in question and consistent with business necessity," and the employer has not rejected an alternative that would yield less disproportionate results.

The City's Decision

New Haven chose not to promote the white firefighters. The City hoped it could avoid liability based on its justification that it was avoiding "disparate impact" liability.

This sets up the major issue: Can an employer treat individuals differently because of their race, if the employer's goal is to avoid impacting entire classes of people differently? Can fear of a "disparate impact" claim justify "disparate treatment"?

The Extremes

The Court explicitly rejects two potential holdings, both of which were pretty extreme.

At one end: Attempting to avoid "disparate impact" is never a defense to treating individuals differently.

At the other end: Any time an employer thinks it will be liable for "disparate impact" it can go ahead and discriminate away.

The Middle Ground

For all of the yelling from opposite ends of the political spectrum, the Court actually took a rather middle-of-the-road approach. And remarkably, stated the holding in a rather plain English manner:

"We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action."

In even plainer English: You can treat individuals differently, but only if there's really good evidence that you must do it to avoid "disparate impact."

Application

The Court held that there was no evidence, let alone the "substantial evidence" required by their new rule, that the City would face liability for "disparate impact" if it promoted the white firefighters. Although the stats clearly showed a disparate impact, the Court held that the City should have analyzed the "business necessity" justification (and the less-discriminatory-alternative element). Summary judgment for the plaintiffs.

Conclusion

Jay Shepherd, author of Gruntled Employees, tweeted, "The bigger Ricci moral is: you can't discriminate in employment, even if avoiding discrimination is your rationale." I mostly agree but would add the exception: Unless you have "substantial evidence" that you will be liable for "disparate impact."