Kavanaugh May Put Disparate Impact on the Chopping Block

Dean Erwin Chermerinsky put the fear of God into me in describing his predictions for cases a Justice Kavanaugh would overturn.  Erwin predicts Kavanaugh would provide the fifth vote that would hold the use of disparate impact in Title VII and Title VIII to be an illegal use of race!!  Thinking about this caused me to burst into tears as I was preparing to go to work. I think of the Black firefighters who became officers in the SF Fire Department as the result of showing disparate impact. I remember that there were no Asian-American officers or women of any rank in the SFFD and how Title VII’s disparate impact standard allowed a coalition of clients and attorneys to go in and desegregate the department.

I remember opponents of the passage of the 1964 Civil Rights Act such as Barry Goldwater and George H. W. Bush when the elder Bush was running for the US Senate in Texas in 1964.  Goldwater, Bush, and other members of the GOP claimed to be all for civil rights and against discrimination but felt that the concept of state’s rights was an impenetrable hurdle.  The right wing in this country has always had problems with using the law to level the playing field.

The threat is real and here are the breadcrumbs to follow.  Dean Chemerinsky reminded the ACS audience of the Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. (2015).  Fair housing advocates were understandably nervous when the high court took up this case challenging the disparate impact standard in housing discrimination cases. The Courts of Appeal were unanimous in concluding that intent was not the appropriate standard.  Civil rights attorneys feared that the only reason the court took the case was to impose the intent standard on litigants just seeking a place to live..  Fortunately Justice Kennedy observed that much contemporary discrimination is not motivated by racial animus but flows from our embrace of stereotypes about Latinos, Asian-Americans, Native Americans, and African-Americans.  His was the fifth vote for disparate impact. Justice Kennedy might be replaced by a hard core Federalist Society ideologue namely Brett Kavanaugh who would vote for the intent standard.

Erwin also reminded the audience that in Ricci v. DeStefano, 557 U.S. 557, 129 S. Ct. 1258 (2009), the right wing gave signals that it was willing to strike down the disparate impact standard in Title VII cases.  Think of all the segregated workplaces that will remain so if this happens!!!!

In Ricci, white and Hispanic firefighters sued the city of New Haven, Connecticut and its officials, alleging that the city’s refusal to “certify results of a promotional examination”—based on its belief that it could disparately impact minority firefighters—violated Title VII. Id. at 2658. The Court held that an employer may not engage in intentionally discriminatory behavior in order to avoid disparately impactful behavior without having reason to believe that it will be subjected to disparate impact liability otherwise. Id.

In his concurring opinion, Justice Scalia warns of “the evil day” on which the Court will confront whether, or to what extent, the disparate impact provisions of Title VII are “consistent with the Constitution’s guarantee of equal protection.” Id. at 2682. He is cautious of the fact that “Title VII not only permits but affirmatively requires [race-based] actions when a disparate-impact violation would otherwise result.” Id. In response, Scalia reasons that the federal government may not compel third parties to discriminate on the basis of race, if it itself is prohibited from discriminating on the basis of race. Id. He contends that by placing a “racial thumb on the scales,” the federal government has forced employers to make decisions directly based on race and real and perceived racial outcomes. Id. Essentially, Scalia’s opinion asserts that addressing racial discrimination is equivalent to actually perpetuating racial discrimination. He concludes by arguing that Title VII’s disparate impact provisions “sweep too broadly” and do not provide an affirmative good faith defense, creating a “war between disparate impact and equal protection.” Id. at 2683.

Justice Alito’s concurring opinion, joined by Justices Thomas and Scalia, is presented in direct response to Justice Ginsburg’s dissenting opinion. Id. It attempts to supplement the factual background included in Ginsburg’s opinion and also echoes the Court’s holding. Id. Although Alito’s opinion does not thoroughly address his analysis of the disparate impact standard, it goes so far as to assert that a reasonable jury could find that City’s decision to “scrap” its test results was not based on a “concern about violating the disparate impact provision of Title VII but a simple desire to please a politically important racial constituency.” Id. at 2688. Alito concludes that the plaintiffs in Ricci are entitled to “evenhanded enforcement of . . . Title VII’s prohibition against discrimination based on race.” Id. at 2689. Such language clearly evidences Alito’s attitude towards discrimination claims and also his understanding of the realities of contemporary racism.

We are in the fight of our lives.  CALL your senators even if you are in a blue state.  SENATORS COUNT THE NUMBER OF CALLS THEY GET ON A PARTICULAR ISSUE.

The seven key Senators are Donnelly, Heitkamp, McCaskill, Jones, Manchin, Collins, and Murkowski.  Please have people in their home states call them.

Here is a script you can forward.

Here is a video you can forward.

Call your clients whose lives have been changed a result of your litigation. Ask them to call.


Thank you.


(Big thanks to our law clerk Olivia Gee for the research on Ricci.)

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