In the Washington Post this morning Ruth Marcus attempts to rescue Sonia Sotomayor from her decision to deny Frank Ricci, the white New Haven firefighter, the promotion he had earned. Sotomayor is not a “quota queen,” she argues, because the real culprit is disparate impact law itself. “If the appeals court got it wrong,” she writes, the reason is not Sotomayor’s devotion to quotas but rather “in the intricate minuet dictated by federal anti-discrimination law.”
Under federal anti-discrimination law, employers (here, the city of New Haven) can be found liable for discrimination even in the absence of evidence that they intended to discriminate. If an employment practice (here, a test) appears neutral but has a “disparate impact” on minorities — if it is “fair in form, but discriminatory in operation,” in the words of a 1971 Supreme Court ruling — the employer must justify the need for the practice. (Chief Justice Warren Burger wrote for a unanimous court.) Even then, the employer could be subject to liability if there is a less problematic alternative.
I, too, have just argued (here) that disparate impact law often produces discriminatory results, that in effect disparate impact itself often has a disparate impact. My problem with Marcus’s column, and why it’s probably not right to say that she regards disparate impact law as the real culprit in New Haven, is that she seems all too willing to regard the unfairness visited upon Frank Ricci et al. as an acceptable price to pay to keep the disparate impact standard alive.
And let there be no doubt: Sotomayor herself is an avid advocate of disparate impact. If she has her way, there will be many more Frank Riccis in our future.
Disparate impact blames the test and not the test taker.
I have a remedy for the liberal argument against civil service tests, LSATs, MCATs being “racist”, “sexist” or what have you:
Allow women of color design these tests. Then when so-called “white males” intensely study for the tests and out-perform these “protected classes”, the pro-preference crowd won’t have a leg to stand on!
John,
The argument is right as far as it goes: disparate impact is the problem, and Sotomayor was not free to overturn the doctrine. The problem with Sotomayor’s position in Ricci — aside from the “hide-the-ball” approach criticized by Cabranes — is that she was obviously enthusiastic enough about the whole racial spoils system that she simply assumed, without much consideration, that she was dealing with a good faith disparate impact claim, when the record reflected that there was no good faith on the part of New Haven.
New Haven’s position, in arguing before the 2nd circuit, was that they didn’t need to prove that the test failed the disparate impact standard, that all they had to do was think in good faith that maybe it would and that maybe some other test would be better. (In all fairness, I was not impressed with Karen Torre’s oral argument on behalf of Ricci et al, either.) She bought that rather than questioning it.