In 2004, the City of New Haven, Connecticut, decided to throw out a job-related examination that would have qualified Frank Ricci and 17 other firefighters for promotions. Neither Ricci nor his cohorts, all eligible for promotion based on the exam results, were black. This greatly displeased the Reverend Boise Kimber, a local “community leader” who had threatened to incite race riots in the past. Given that Kimber reliably delivered a key bloc of votes to the city’s longtime mayor, John DeStefano, it’s hardly surprising that the mayor and his advisors immediately began working to have the test results set aside.

In Ricci v. DeStefano, its most anticipated decision of the term, the U.S. Supreme Court handed down a 5–4 decision recognizing that Ricci and his fellow firefighters were victims of race discrimination under Title VII of the Civil Rights Act. (In so doing, the Court reversed an appeals court ruling joined by Judge Sonia Sotomayor, President Obama’s nominee to replace retiring justice David Souter.) The Court rejected New Haven’s claim that had it not invalidated the test, black firefighters would have had a valid lawsuit under the Civil Rights Act’s “disparate-impact” provision, which holds employers at least presumptively liable any time the racial composition of employees hired or promoted differs markedly from the pool of applicants.

While the Supreme Court’s decision won relief for the sympathetic Ricci—a dyslexic who sacrificed financially to spend extra time preparing for the exam—and the majority’s reading of the Civil Rights Act and its amendments is probably correct, the case highlights the bankruptcy of modern American antidiscrimination law. The ruling effectively assures that employers, both public and private, will be sued for using any neutral employment test unless all races score more or less equally on the test. The employer is caught between the proverbial rock and a hard place: if it jettisons the test, it will be sued by plaintiffs like Ricci; if it uses the test, it will be sued by members of the underperforming racial group.

That the Court’s opinion found that black firefighters would not have had a plausible case against New Haven offers employers little solace. In reaching its conclusion, the Court merely determined that there was not a “strong basis in evidence” for such a claim in this case. But before any court could make such a finding in a future case, the lawyers would have to build a factual record, since the law continues to presume that racial disparities in hiring result from discrimination. Thus, no employer that adopts an employment criterion that produces a disparate racial impact can avoid depositions, discovery, motions, and the host of onerous and expensive pretrial rituals endemic to modern litigation. Moreover, because any disputed facts would require a jury’s resolution, most cases would be impossible for a judge to resolve without taking them to trial.

At root, the problem rests with disparate-impact law itself. There is little reason to think that all racial subgroups should be equally prepared for any job or promotion. Consider that white players constitute 40 percent of NCAA Division I basketball rosters, but only two of the 25 collegians drafted in last week’s NBA draft. It would be preposterous to assume based on such numbers that NBA franchises’ decisions were racially discriminatory. It would be even sillier to subject to judicial inquiry the various job-related skills tests the NBA imposed at the draft combines—including vertical leaps and shuttle runs—and ask whether alternative tests might be equally effective and less likely to exclude prospective white players. But such inquiries are very much what the antidiscrimination laws impose on employers in hosts of other contexts, including that of New Haven’s firefighters’ exam.

I am hardly qualified to know whether the New Haven Fire Department chose the best possible test for assessing prospective supervisors. But I can predict that rational employers will react to Ricci by dropping such exams whenever possible, in effect capitulating to the racial bean-counters. Such an outcome is disconcerting, at least for those who believe that firefighter supervisors should have some requisite body of knowledge before sending public servants into burning buildings.

To head off this undesirable result, Congress should undo its 1991 decision to codify the disparate-impact test into the Civil Rights Act. There are cases in which it makes sense for antidiscrimination law to look beyond an employer’s intent. For example, strict seniority standards for promotion—even if adopted without discriminatory motive—are hard to defend when such seniority has itself been predicated upon an employer’s past discrimination. But plenty of plausible rules would capture such cases apart from a lawsuit-provoking presumption that racial discrimination accounts for any racial imbalances. Ironically, while the disparate-impact rule requires courts to reject employer tests if any alternative might suffice, it fails to meet such a high standard itself. It won’t happen in this Congress, but ultimately, let’s hope that disparate impact finds itself in the dustbin of history.


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