The estimable Mickey Kaus, citing the estimable Walter Olson, worries about employers who will get sued if they ignore the results of tests that have a disparate impact … and sued if they don’t, but he goes on to argue that
… Justice Anthony Kennedy’s solution to this problem in the Ricci case — that a city can’t throw out a job test that winds up promoting whites and no blacks unless there is a “strong basis in evidence” that it would lose a subsequent discrimination lawsuit — seems an unsatisfying solution to the litigation vise.
What if a city, after reading the Ricci decision, decides there’s just a wee a bit less than a “strong” basis for thinking it will lose a discrimination case, and doesn’t throw out the test (lest SCOTUS smack it down)–and then loses the discrimination case anyway?
Alas, Kaus does not offer a solution of his own, nor does he seem worried now (though I suspect he will be later) about the liberal solution, which is to remove uncertainty by regarding all tests — indeed, all employment policies or practices — that have a disparate impact as by definition discriminatory by virtue of their disparate impact alone. As I noted two days ago, here, quoting Stuart Taylor, Sotomayor and other disparate impact mavens believe that New Haven’s refusal to promote the white (and one Hispanic) successful test-takers should have been upheld
based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact” lawsuit — regardless of whether the exam was valid or the lawsuit could succeed.
Fortunately, the solution to this dilemma is conceptually (if not politically) easy: demote disparate impact to its proper role, which is suggestive evidence of the possibility of disparate treatment, a possibility that can be successfully refuted by an employer’s production of credible evidence that the challenged test, policy, or procedure bears a reasonable relationship to the organization’s activities. (Of course, credible evidence that an employer adopted even such a reasonable test for a discriminatory purpose would also be barred as disparate treatment.)
In Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) the Supreme Court provided a compelling version of what disparate impact should mean, i.e., a version remarkably similar to the one I favored above.
Wards Cove reinterpreted the disparate impact method of proof, and held that an employer can avoid liability merely by showing a business justification for the practice causing a disparate impact, and that the plaintiff has the burden of proving a lack of a business justification.
Indeed, the Court’s definition of disparate impact was so sensible and reasonable that the Democratic Congress went ballistic and reversed it in the Civil Rights Act of 1991.