Michael J. Zimmer (Loyola University Chicago School of Law) has posted Ricci’s Color-Blind Standard in a Race Conscious Society: A Case of Unintended Consequences? on SSRN. Here is the abstract:
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In Ricci v. DeStefano, the Supreme Court in an opinion by Justice Kennedy ruled that, as a matter of law, the City of New Haven had committed intentional disparate treatment discrimination that violated Title VII by deciding not to use the results of a test given to promote firefighters to openings as lieutenants and captains. The decision has already drawn significant and interesting commentary. This article will principally focus on the threshold issue of disparate treatment law, on which the Court spent little time, rather than on the disparate impact issues on which the Court spent most of its opinion. The thesis of this article is that it is possible that a conservative majority of the Supreme Court inadvertently may have opened new possibilities for civil rights advocates representing women and minority group men, the groups for whose protection antidiscrimination statutes were enacted in the first place. The obvious and powerful empathy the majority felt for the Ricci plaintiffs may have caused a majority of the Court to leap to the finding of discrimination that the result transforms disparate treatment law to now make it easier for all plaintiffs to prove their cases. In short, the Court appears to have established essentially a “color-blind” standard of disparate treatment liability for Title VII. This new standard allows a civil rights plaintiff to prove her disparate treatment case by proof that (1) the defendant knew the racial or gender consequences of its decision and (2) it then made that decision in light of that knowledge which made the decision “because of race” and (3) the plaintiff suffered an adverse employment action. Accepting that the City’s motivation for its action was to avoid disparate impact liability to minority group test takers, the fact that the City acted benevolently as to some of the members of all three racial groups affected was irrelevant to liability to one group, the Ricci plaintiffs, who were adversely affected by the decision even though the decision was in spite of their race, not because of it. Justice Kennedy recognized an exception to the Ricci “color-blind” theory when an employer takes into account the potential racial effect of an employment practice while that practice is in the design phase, before it is finalized for use.
