Title VII's Conflicting "Twin Pillars" in Ricci V. DeStefano
DeAngelo, Kathy, Harvard Journal of Law & Public Policy
Since 1971, when the Supreme Court created the disparate impact doctrine in Griggs v. Duke Power Co., (1) the judiciary and Congress have disagreed on how to define and apply the doctrine. In Griggs, the Court extended Title VII of the Civil Rights Act of 1964 to prohibit not only disparate treatment of employees but also practices that are "fair in form, but discriminatory in operation." (2) Two years later, the Court further developed the doctrine in McDonnell Douglas Corp. v. Green, (3) where it set out a three-part test for plaintiffs alleging disparate impact. A plaintiff must first show that an employer's specific action resulted in disparate impact. Upon this showing, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." (4) If the employer meets its burden, then the plaintiff has a final opportunity to prevail if he can "show that [the employer's] stated reason for [the employee's] rejection was in fact pretext." (5) After almost two decades under this regime, the Supreme Court denied the disparate impact claims of minority plaintiffs in Watson v. Fort Worth Bank & Trust (6) and Wards Cove Packing Co. v. Atonio, (7) clarifying that "[t]he burden of persuasion [always] remains with the ... plaintiff"; only the burden of production shifts to the employer. (8) Just two years after the Court decided Wards Cove, Congress responded to what it perceived as undue judicial limits on disparate impact doctrine. (9) Amending the Civil Rights Act of 1964, (10) the Civil Rights Act of 1991 (11) expressly elevated the disparate impact doctrine to equal status with disparate treatment. (12)
Last Term, in Ricci v. DeStefano, (13) the Supreme Court constrained the applicability of the disparate impact doctrine to cases of immediate discrimination and attempted to reconcile the disparate impact and disparate treatment doctrines. Although the Court's holding did not go beyond striking a tenuous balance between the two doctrines, the majority's reasoning reflected an ultimate interest in protecting individuals from exclusion from employment opportunities because of race. This interest is in line with the original intent of the Civil Rights Act of 1964 as well as the Fourteenth Amendment's Equal Protection Clause. Unfortunately, although the Court signaled that the independent disparate impact doctrine is incompatible with the Equal Protection Clause, the Court failed to address explicitly the plaintiffs' constitutional claims, thus ensuring that the debate over the disparate impact doctrine will continue in the courts, and perhaps in Congress, until the Supreme Court takes up a more ambiguous case than Ricci.
In 2003, the City of New Haven, Connecticut, hired Industrial/Organizational Solutions, Inc. (IOS)--an independent, out-of-state consulting firm--to develop exams for determining promotions within the City's fire department. (14) While developing the tests for lieutenant and captain positions, the firm made deliberate efforts "to ensure that the results ... would not unintentionally favor white candidates." (15) For example, IOS over-sampled minority firefighters and also organized the candidate evaluation panels to guarantee two minorities would sit on every three-person panel. (16) Despite IOS's efforts, however, a much lower percentage of blacks and Hispanics achieved passing scores than their white counterparts. (17) In response to the exam results, the City conducted a series of hearings before the Civil Service Board (CSB) at which examinees and experts spoke both in favor of and against certification of the exams. (18) During the heated debates, the influential community leader Reverend Boise Kimber threatened the CSB with "political ramification[s]" if the results were certified. (19) On March 18, 2004, the CSB deadlocked in its vote on whether to certify the examinations, resulting in an automatic decision not to certify the results. …