by Bob Gregg
Boardman Law Firm
The recent Ricci decision is complex. It stretched for approximately 90 pages with a majority opinion, two concurring opinions and a dissent. It’s meanings and ultimate effect will be assessed and argued for months or even years.
Perhaps the most troubling part is Justice Scalia’s concurring opinion. In just three pages,he signals the future, if the court’s majority remains the same. He advocates the elimination of disparate impact cases altogether. Justice Scalia believes that the disparate impact prohibitions in Title VII are unconstitutional and should be struck down.He writes:
Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on(because of) those racial outcomes. That type of racial decision making is as the Court explains, discriminatory.
Justice Scalia goes on to state:
Government compulsion of such design would therefore seemingly violate equal protection principles. . . . “[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.2. . . And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute.”(Emphasis added)
This “individual, not as simply components of a racial, religious, sexual or national class”argument is a subterfuge for eventually eliminating consideration of a broad field of discrimination cases. One would generally have to prove intentional discrimination on an individual-by-individual basis. This would take the law back to the standards of some of the most ridiculous and unfair decisions made by the court.
A good example of how this “individual -- not as a component of a group” standard works is General Electric v. Gilbert (S.Ct. 1976). The Supreme Court ruled that since there were both pregnant and non-pregnant women, it was not the status of being a woman at issue, only the condition of pregnancy. Therefore, pregnancy was NOT a gender-related issue. Each individual must be judged in isolation, not as a component of a group. (Congress fixed this strange “pregnancy is not gender related” decision bypassing the Pregnancy Discrimination Act in 1978).
Similarly, the courts refused to recognize sexual harassment as a gender-based issue.They dismissed case after case, viewing unwelcome sexual attention, threats and physical sexual contact as merely “the subtleties of an inharmonious personal relationship.”Barnes v. Train (D.C. DC, 1974); “the personal proclivities, peculiarities or mannerisms”of the individuals involved. Corne v. Bausch & Lomb, Inc. (D.C. Arizona, 1975).
Under Justice Scalia’s proposed standard, even slavery would probably unchallengeable. There were both African Americans who were slaves and African Americans who were not slaves. Therefore, slavery was not a race-related issue. It was only a situation affecting some people individually.
Justice Scalia’s view would not allow any evidence by a regulatory agency or individual plaintiff regarding statistical disparities. They may play no role in the evidentiary process because “the disparate impact provisions sweep too broadly.”
So, in the slavery case, it would be impermissible to show that multiple other African Americans were slaves or that virtually all slaves were of the given race. It just seems that individuals of one race topped the “selection list” year after year. Looking at the racial composition of the list as a whole would not be allowed. Similarly, pregnancy or a variety of other major group impact issues would simply be eliminated from Title VII considerations. Justice Scalia ends his concurring opinion with a warning:3
The Court’s resolution of these [Ricci] cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how--and on what terms--to make peace between them.
In Justice Scalia’s view, “peace” seems to be achieved by the unconditional surrender of all disparate impact provisions of the law.
This case was not about the standard argument against “Affirmative Action,” set asides,“points” or special considerations. Ricci was decided as a Title VII disparate impact testing case. Justice Scalia’s opinion goes much further than any debate on whether Affirmative Action efforts are valid; the Ricci court declined to address any such issues.Instead, it attacks the fundamental discrimination laws. The debate over Affirmative Action may become a de minimis issue, as the battle shifts to preserving even the most basic protections against discrimination and a “war” over the heart of the antidiscrimination laws.
Bob Gregg is a member of the faculty of the American Association for Affirmative Action's Professional Development and Training Institute
rgregg@boardmanlawfirm.com
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