It is the height of folly to make hard and fast predictions about the impact of freshly minted Supreme Court decisions, especially when the Court announces a new standard. Yet it is safe to predict that Ricci v. DeStefano, while not as devastating as some advocates have feared, will discourage some employers from voluntarily eliminating practices that disadvantage minority applicants, and could inflict far broader damage on efforts to ensure equal opportunity.
The disheartening core of Ricci is that five members of the Court view the twin prohibitions against discriminatory impacts and intentional discrimination contained in Title VII of the Civil Rights Act of 1964 as being at odds with each other.2 They have signaled that they will treat efforts to comply with the disparate impact prohibition as a form of race-conscious decision making.3 The Court imported a standard from inapposite cases involving challenges to race-conscious remedies pursuant to the Equal Protection Clause, requiring that an employer must have a “strong basis in evidence” before taking voluntary action to eliminate a disparate impact. Although the precise content of the standard remains unclear, the decision certainly makes it more difficult for employers to voluntarily avoid practices that disproportionately disadvantage minority applicants. In the process of applying the standard, the Court appears to have lowered the bar for validation of employment tests, thus making it easier for employers to justify the use of tests that disadvantage minority applicants, and diminishing their ability to challenge employment practices successfully.
The decision could have been worse. Notably, it did not reach the significant question expressly left open by the majority and discussed by Justice Scalia in concurrence: whether Title VII’s disparate impact standard is inherently inconsistent with the Equal Protection Clause. In addition, on a practical level, the opinion leaves open the possibility that well-intentioned employers and determined plaintiffs may still find room to advance equal opportunity.