Monday, April 5, 2010
Joseph Seiner (South Carolina) and Benjamin Gutman have posted on SSRN their forthcoming article, The New Disparate Impact, 90 B.U. L. Rev (forthcoming 2010). Here's the abstract:
Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities. A cryptic passage at the end of the Supreme Court’s recent decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), signals a sea change for this disparate-impact doctrine. Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination. We show that the opinion has also created a new affirmative defense for employers facing claims of disparate impact. This Article marks the first time that this new defense has been identified and explained in the legal literature. Before Ricci, disparate impact was a purely no-fault doctrine. An employer was liable if its employment practice had an unlawful disparate impact, even if the employer did not know about the impact or intend to subject its employees to an unlawful practice. The focus of litigation was not on the employer’s state of mind, but rather on the aspects of the employment practice. After Ricci, however, in a broad category of disparate-impact cases liability now turns on what the employer knew when it took the challenged action. If the employer had no reason to think that the practice would have an unlawful disparate impact, it is immune from liability for its past actions.
This is a dramatic development, and it suggests that the Court sees disparate impact as not fundamentally different from intentional discrimination. Beyond its doctrinal importance for disparate-impact claims—which itself is considerable—the Ricci affirmative defense reflects an entirely new direction for this area of law. In this Article, we parse the language of Ricci to derive the new affirmative defense. We explain its significance for disparate-impact theory and discuss the limited safe harbor it has created for employers. We also situate the new defense within the broader context of federal employment-discrimination law, including other affirmative defenses that the Court has created for policy reasons. We thus explain how Ricci heralds a new disparate impact.