The following essay, part of our Race and the Supreme Court program, is by Gail Heriot, a member of the United States Commission on Civil Rights and a professor of law at the University of San Diego.

Justice Scalia begins his concurrence in Ricci v. DeStefano (2009) with an intriguing statement: "I … write separately to observe that [this decision]  merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII … consistent with the Constitution's guarantee of equal protection?"

What's remarkable, thought unsurprising, is how long it is taking.

Disparate-impact analysis has been around for more than forty years now. In 1966, barely a year after Title VII's effective date, the EEOC turned its attention away from the naked racial discrimination that had been common in the South (and for which Title VII is well-suited) and toward something not just more subtle, but entirely different in nature.  EEOC guidelines warned employers of "inadvertent bias" and "hidden discrimination against minorities."
Within a few years, the Supreme Court, deferring to EEOC expertise, declared that "good intent or absence of discriminatory intent does not redeem employment procedures and testing mechanisms that operate as "built-in headwinds' for minority groups."  Unless the employer could prove the validity of its job qualifications and tests with a quality of proof well beyond the capability of all but the largest, most sophisticated employers, it was required to shun any qualification or test on which one minority group performs less well than other groups.  See Griggs v. Duke Power Co. (1971) and Albemarle Paper Co. v. Moody (1975).

Under these decisions, therefore, unless a bank could scientifically prove that high-school graduates make better tellers than high-school dropouts, it could not require a high-school diploma for tellers, since a larger proportion of whites than of African Americans possesses such a diploma.  Indeed, its proof would have to apply specifically to its own tellers, including its minority tellers, not just to tellers in general.  In Albemarle, a manufacturer had hired an industrial psychologist to conduct a statistical validation study of its job qualifications.  In an opinion that can be accurately characterized as "out-of-touch with the American workplace," the Court declared these extraordinary efforts to be insufficient.   Interestingly, it was Justice Blackmun in concurrence who tentatively sounded the alarm: "I fear that a too-rigid application of the EEOC Guidelines will leave the employer little choice, save an impossibly expensive and complex validation study, but to engage in a subjective quota system of employment selection.  This, of course, is far from the intent of Title VII."

Two points need to be made here.  First, very nearly all qualifications have a substantial disparate impact.  Title VII doesn't cover just race.  It prohibits religious, sex and national origin discrimination too.  As a group, men are stronger than women.  Unitarians score higher on mathematical aptitude tests than Lutherans.  Hispanics are more likely to meet the weight requirements for jockeys than are Swedes.  Cambodians are more likely to have experience in the donut industry than other American ethnic groups.  Indeed, it would be difficult to find a single, significant job qualification that does not have a substantial disparate impact on some protected group.

Second, men are sent to the electric chair on far less proof of guilt than the Court was demanding of employers to justify an employment qualification with disparate impact.  The proof requirements were simply unrealistic "“ more than the proof beyond a reasonable doubt required in criminal cases "“ and for the most part remain so.  Indeed, they are specifically intended to discourage the use of qualifications and tests that have a disparate impact rather than to get at the truth.

So why didn't half the employers in the country line up to complain?  It's not as if Title VII as passed in 1964 required the results arrived at in Griggs/Albemarle.  To the contrary, Title VII prohibited employers from "discriminat[ing] against any individual" in employment "because of such individual's race, color, religion, sex, or national origin" or from "limit[ing], segregat[ing] or classify[ing]" employees "because of" those same considerations.  If an employer was not acting "because of" these considerations, it was not violating the statute.

Moreover, the legislative history shows that Congressional leaders assured their colleagues that Title VII would not interfere with employer discretion to set job qualifications "“ so long as race, color, religion, sex and national origin are not among them.  Senators Clifford Case (R-N.J.) and Joseph Clark (D-Pa.), co-managers of the bill on the Senate floor, emphasized in an interpretative memorandum, "There is no requirement in Title VII that employers abandon bona fide qualification tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance."  110 Cong. Rec. 7213.  Note that these men used the words "bona fide," meaning good faith, and not words like "valid" or "necessary."

Indeed, when an Illinois hearing examiner, interpreting the more loosely worded Illinois Fair Employment Practices Act, concluded in 1964 that an employer could not administer a general intelligence test to job applicants, because African Americans had not received the kind of education that would allow them to do well on it, Title VII supporters were frantic to assure their colleagues that their proposed law would not permit such a result.   Just in case, a clause was added stating that notwithstanding any other provision, employers are free "to give and to act upon the results of any professionally developed ability test provided that such test is not designed, intended or used to discriminate because of race …."  In the view of most observers, including newspaper editorial pages at the time, the hearing examiner had badly overreached.  Not surprisingly, his decision was eventually overturned in Motorola, Inc. v. Illinois Fair Employment Commission (1966).

In any event, employers didn't complain after Griggs/Albemarle "“ at least not in the loud, unified voice that would have been necessary to catch Congress's attention.  Indeed, just the opposite occurred "“ although it took a long time.  Twenty years after Griggs, the Civil Rights Act of 1991 backhandedly acknowledged disparate impact as a legitimate Title VII cause of action.  Many employers weren't happy, but they had apparently failed to convey a sense of urgency to Congress.  Once the 1991 law went into effect, any argument based solely on the original Title VII and the intent of the 88th Congress was foreclosed, and arguments based on the constitutionality of Title VII moved into greater prominence.

The reason for the employers' failure brings us back to Justice Blackmun, who correctly foresaw that many employers would find complying with Griggs/Albemarle a daunting task.  Fortunately for these employers, as Blackmun also foresaw, they didn't have to comply.  The Uniform Guidelines on Employee Selection Procedures, promulgated by the EEOC and other civil rights agencies in 1978, provided a safe harbor from federal enforcement actions for employers who could show that their overall hiring rates reflected the applicable labor market.  A willingness to engage in affirmative action essentially allowed employers to "opt out" of potential federal enforcement action.  Prudent employers fell into line.  When everything you are doing can be construed as illegal, it's best to stay on the government's good side if you can.

The Uniform Guidelines  thus had a significant effect on the American workplace; without them it is likely that fewer employers would have instituted racially preferential hiring policies like those at issue in United Steelworkers v. Weber (1979).  Indeed, by essentially promising to go easy on enforcement if an employer agrees to such a policy, the Uniform Guidelines were engaging in a little soft coercion.

This, of course, puts Weber, which held that an employer may "voluntarily" discriminate against white employees as part of an affirmative action plan, in a different light.  Many, including Justice Rehnquist in dissent, have persuasively argued that the Weber case was wrongly decided on the law.  In addition, however, Weber was probably wrong on its facts.  It is a stretch to call an employer's affirmative action program "voluntary" if it was adopted to avoid liability for disparate impact.  No one in that case disputed that Title VII prohibits the federal government from requiring employers to preferentially hire underrepresented minorities or that such a requirement would raise constitutional questions.

The irony is that neither the EEOC nor any other federal civil rights agency had the authority to issue substantive regulations on employment; Congress had specifically declined to confer that power.  Issuing guidelines was an attempt to get around that problem.  One of the principal architects of the EEOC's early enforcement strategy boasted a few years after the EEOC issued its original guidelines, "Creative administration converted a powerless agency operating under an apparently weak statute into a major force for the elimination of employment discrimination” (see Alfred W. Blumrosen, Black Employment and the Law 53 (1971)).

The bottom line, however, is that it may take longer than some might think for the day to come when the Court decides, as Justice Scalia put it,  "[w]hether, or to what extent, … the disparate-impact provisions of Title VII … [are] consistent with the Constitution's guarantee of equal protection."  Defending EEOC enforcement actions is expensive "“ running into the many millions of dollars.  Most large employers would prefer to submit to the soft coercion of the Uniform Guidelines.  Small employers may pursue a different strategy, but are likely just as eager to stay out of court.

Ricci v. DeStefano itself, which was ultimately decided on statutory grounds, was an unusual, though imperfect, opportunity to decide this constitutional issue.  A better opportunity is unlikely to repeat itself soon.  Unlike most cases in which the desire to avoid racially discriminatory treatment conflicts with the desire to avoid racially disparate impact, this one played out in public.  The high-scoring white and Hispanic fire fighters, who had studied for the professionally drafted exam in hopes of receiving a promotion, knew that they were being unfairly treated.  It was happening before their eyes at a public meeting.  They watched as New Haven officials succumbed to political pressure to throw out the exam results.  Unsurprisingly, the fire fighters sued.

Drama like that doesn't happen every day (mercifully).  Most of those who are harmed by a decision not to use a job qualification or test that the employer refrained from using only because of fear of liability for disparate impact never know about it.  They can't sue.

This disparate impact case that was heard this week "“ Lewis v. City of Chicago "“ is much tamer stuff.  Like Ricci, it concerns an exam given to fire fighters.  Unlike New Haven, Chicago stuck with its exam despite accusations of disparate impact.  But the issue before the court concerns the statute of limitations.

The difficulty Scalia hints at in Ricci thus remains.  Disparate impact presumes the falsehood that in the absence of discrimination there will be proportional representation in everything.  In an effort to force this conception onto an unruly and complex world, racial decision making and racially preferential treatment are inevitably resorted to. Can this be justified as a remedy for some past or present injustice?  Or is it simply another injustice itself?

Posted in Race and the Supreme Court, Special Features