Ricci V. Destefano: End of the Line or Just Another Turn on the Disparate Impact Road?

104 Northwestern University Law Review 411 (2010)

16 Pages Posted: 3 Jan 2014

Date Written: January 2, 2009

Abstract

Reports of the death of Title VII's disparate impact theory of discrimination in the wake of Ricci v. DeStefano may be exaggerated. Widely praised and widely criticized in the newspapers and the blogosphere, Ricci is the latest, but perhaps not the last, chapter in a long-running feud between Congress and the Supreme Court regarding disparate impact.

While the full implications of the decision remain to be worked out, Ricci certainly made things more complicated for employers. Disparate treatment of minorities remains forbidden. Disparate treatment of white males remains forbidden -- except to avoid disparate impact against minorities. Disparate impact (that is, unjustified disparate impact) against minorities remains forbidden, albeit there is an argument that dicta in Ricci create a "strong basis in evidence" defense even to unjustified disparate impact. The leeway employers had to avoid potential disparate impact suits has been narrowed considerably, but employers still need to assess the impact, the justifications, and the alternatives of various potential courses of action before proceeding.

Finally, even where the possibility of disparate impact liability is influencing a course of action, the employer may well remain free to take racial impact into account in choosing among various alternatives (free of disparate impact liability), as long as it does so early enough to avoid disrupting settled expectations.

Keywords: Ricci, DeStefano, City of New Haven, disparate impact, business necessity, job relation, strong basis in evidence, disparate treatment, reverse discrimination, martin v, wilks, civil rights act of 1991

Suggested Citation

Sullivan, Charles A., Ricci V. Destefano: End of the Line or Just Another Turn on the Disparate Impact Road? (January 2, 2009). 104 Northwestern University Law Review 411 (2010), Available at SSRN: https://ssrn.com/abstract=2373955

Charles A. Sullivan (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States
973-477-7121 (Phone)

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