Disregarding Intent: Using Statistical Evidence to Provide Greater Protection of the Laws
Goodman, Christine Chambers, Albany Law Review
The year is 2015. The Governor of California has recently announced the startling statistic that fifty percent of the state government construction contracts awarded this year went to minority-owned businesses. This percentage is extremely high given that minority-owned businesses averaged roughly fifteen percent of such contracts in 1995--the year preceding the abolition of minority preferences in California.
The owner of a construction firm suspects that the reason for this increase--twenty years later--is that preferences are being granted to minority contractors within the state, in violation of Section 31 of the California Constitution (Section 31). (1) The one available statistic--depicting the substantial disparity between the number of state contracts awarded to minority-owned businesses in 1995 and the amount awarded in 2015--might suggest that there is a problem.
The difficulty in determining whether there is preferential treatment arises when there is a lack of available information concerning the number of minority contractors present in the state, the number of minority contractors who submitted bids to the state, and the number of minority contractors who submitted the lowest bids on state jobs. Most state government agencies have stopped gathering these numbers altogether.
In reality, recent cases suggest that California is progressing towards a fundamental change in the nature of its anti-discrimination law, which will increase the efficacy of reliance upon statistical evidence in future litigation. (2) The change is that California courts may soon permit consideration of disparate-impact evidence in proving violations of anti-preference and anti-discrimination provisions (3) of Section 31, which was added in 1996 and which was based on the voter's approval of Proposition 209. (4)
While this may seem like a substantial departure from existing anti-discrimination law, California has been heading in this direction for the past two years. In Hi-Voltage Wire Works, Inc. v. City of San Jose, decided in 2000, the California Supreme Court abruptly changed the way that California courts can apply anti-discrimination law by adopting a standard that made it virtually impossible to justify a race-conscious outreach program. (5) This decision laid a foundation for the next step--making preferences and discrimination actionable despite the inability to prove intent. Thus, in the few short years since the passage of Proposition 209, California has accomplished something that the United States Supreme Court has been moving towards for two decades--the California Supreme Court has obliterated the distinction between invidious and benign discriminations.
While the California Supreme Court was unwilling to address whether the prohibitions of Section 31 are limited to intentional conduct, as in Hi-Voltage, (6) its rationale indicated that the next logical step would, in fact, be to resolve this issue. If, indeed, the voters who approved Proposition 209 wanted greater protection against discrimination and preferences, then it is appropriate for the courts to provide greater protection against harm by making redress available whenever harm is proven, regardless of the intent of the actor. Thus, in order to provide greater protection against the harm of discrimination means to interpret Section 31 to prohibit discriminatory acts, even when intent is lacking. (7) The California courts have already addressed the issue of de facto preferences in favor of minority groups, (8) but there is no evidence of reciprocal concern to eliminate the unintentional preferences that favor the majority.
If unintentional discrimination constitutes a violation of Section 31, then a disparate impact analysis--borrowing contextually from Title VII of the federal Civil Rights Act of 1964 (9) and relying heavily on statistics--would be sufficient to establish the existence of improper preferences or discrimination. …