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Monday, July 06, 2009

Ricci Glitch

The following post was written by my FIU colleague Kerri Stone, who writes on employment discrimination:

In Ricci v. DeStefano, the Supreme Court held that “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In the case, the City of New Haven violated Title VII when it refused to certify the results of a test given for promotion on the basis that “too many whites and not enough minorities would be promoted were the lists to be certified,” and the City feared a disparate impact lawsuit. Having had not too much time to digest the opinion at this point or fully research the issues, I have only initial impressions to share about it, but one that I thought was interesting.

While, as the Court said, a “disparate-treatment plaintiff must establish ‘that the defendant had a discriminatory intent or motive’ for taking a job-related action,” does this mean that anyone who suffers an adverse action (and there is debate as to whether one was conferred here) because of a decision made on the basis of a racial consideration has been discriminated against “because of” his race? The Court’s language on this point is not entirely clear. The Court proclaimed that the premise of its analysis was that “[t]he City's actions would violate the disparate-treatment prohibition of Title VII absent some valid defense [because a]ll the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race- i.e., how minority candidates had performed when compared to white candidates.” The Court noted that the District Court had concluded that the City’s “own arguments ... show that the City's reasons for advocating non-certification were related to the racial distribution of the results,” and found, based on that, that “[w]ithout some other justification, this express, race-based decisionmaking violates Title VII's command that employers cannot take adverse employment actions because of an individual's race.” The Court later noted that “the City made its employment decision because of race,” when it “rejected the test results solely because the higher scoring candidates were white.”

Title VII prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race….” After reading this case, however, I have to take issue with the Court’s assertion that disparate treatment cases “present ‘the most easily understood type of discrimination.” As even the Court recited, disparate treatment claims succeed “where an employer has ‘treated a particular person less favorably than others because of’ a protected trait.” But does this case open a door to what might be called a “transferred intent” theory of Title VII, whereby one who is not the intended victim of a race-based decision may sue in the context of a policy in which another group is discriminated against?

Consider a tougher hypothetical. If an employer with an expressed bias against Asian Americans announced that in attempt to lower the number of Asian Americans in his workforce, he would be firing all employees who had one-syllable last names, and if a non Asian-American got fired because of this, would a cause of action under Title VII be viable? I ran this idea by Professor Anne Lofaso, and she commented that upon reading the case, she had thought that it would make proving discrimination cases easier for all Title VII plaintiffs.

I am thinking of writing on this principle, and I’d love to hear others’ thoughts.

Posted by Howard Wasserman on July 6, 2009 at 06:46 AM in Employment and Labor Law | Permalink


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It's funny that you should mention Trafficante. I just circulated a draft of an article on this to some colleagues, and I took on the issue of standing after reading that case. The language in the statute at issue in Trafficante was "Any person who claims to have been injured by a discriminatory housing practice or who believes that he will be irrevocably injured by a discriminatory housing practice that is about to occur (hereafter ‘personal aggrieved’) may file a complaint with the Secretary."
I guess I'm more hung up on the actual language of Title VII. In this article, I raised and dismissed a standing concern; I actually don't believe that there is one. Recent Second Circuit harassment jurisprudence seems to bear this out as well. I rather like the idea of a more broadly-conceived right of action under Title VII; I am just not sure that the Court intended to OK it in Ricci. Thanks for thinking through this with me.

Posted by: Kerri Stone | Jul 24, 2009 9:09:58 AM

Can the 'standing' theory of Trafficente help here? If disparate treatment against one group harms another, that other has standing to sue.

Posted by: Michael Connolly | Jul 24, 2009 4:25:18 AM

Maybe part of the issue is that the hypothetical reveals a division among the Court's conservatives that the Ricci case did not. Specifically, Kennedy's purposivism (which may well be amenable to the "transferred intent" theory), and Scalia and Thomas's textualism (which likely would not, given the statutory language you quote: "because of such individual's race").

Posted by: JP | Jul 8, 2009 12:51:28 PM

That's precisely the question that got me started down this path. I don't see how the law could refuse relief to a plaintiff who is identically situated to the other plaintiffs except for his race, especially because the action taken, even with respect to the white plaintiffs, was done in a manner that's cognizant of their race, but not precisely "because of" it. I also think that the broad language used throughout the opinion, much of which I quoted above that talks about disparate treatment engendered by "race conscious" actions, supports the theory and the conclusion that the Hispanic plaintiff needs to have been thought of as something more than "not Black."

Posted by: Kerri Stone | Jul 8, 2009 11:53:48 AM


I'm not sure Ricci necessarily supports the "transferred intent" theory, although it certainly demonstrates that it is lurking in the background. With respect to the Hispanic plaintiff, I think it is sufficient that his race was not African-American to be able to say that the decision was because of the race of the individual plaintiffs. That is, the plaintiffs' theory is not that the City discriminated against them because they were White, but that it did so because they were not Black.

The question remains, however: What would have happened if one of the plaintiffs in Ricci was an African-American firefighter who had qualified for promotion (but the facts were otherwise the same)? [This is of course just another way of stating your hypothetical, though I think it is a more plausible scenario.] Would the Supreme Court have decided that the White and Hispanic plaintiffs prevailed, but that the single Black plaintiff lost because the decision was not because of her individual race?

Posted by: JP | Jul 8, 2009 11:41:43 AM

I appreciate all of these thoughtful comments. In response to the last one, I'd ask whether the Court's awarding relief to the Hispanic plaintiff in the case illustrates the point. To me, it appears as though the Court has allowed a form of "transferred intent" under Title VII, whereby even if one who is harmed by an intentional, race-conscious decision, like the one at issue, is a member of the race sought to be benefited, he may recover as a victim of intentional discrimination and properly viewed as one discriminated against "because of" his race. This is what got me thinking in the first place.

Posted by: Kerri Stone | Jul 8, 2009 11:09:24 AM

... intent will be found if the actor is conscious of the race or races of those affected by the adverse action.

There are serious problems with the Ricci decision, but I think Mike Zimmer is adding one that can't reasonably be found in the majority opinion.

It is basically undisputed that in Ricci the employer was not only conscious of race, it actually used race as a factor in making its decision.

(Defendants argued that they only factored in race to the extent they had to do so to avoid a possible disparate impact lawsuit. No one has ever suggested that the city was merely aware of the racial breakdown but did not factor race into its decision.)

Posted by: JP | Jul 8, 2009 10:24:41 AM

It might be better better to separate facially neutral and facially discriminatory criteria depending on the plaintiff, at least in some case. For instance, an age requirement of 18-30 (see the UK sex discrimination cliams of Price v Civil Service Commission (No. 2) [1978] IRLR 3 (IT); Jones v University of Manchester [1993] ICR 474 (CA) could be challenged by a woman as disparate impact, affording the employer business necessity defence. If were reworked as a disparate tratment sex discrimination claim, the employer would have no opportunity to defend its criteria.

Posted by: Michael Connolly | Jul 8, 2009 8:59:45 AM

In the latest Voting Rights Act case, or at least the oral argument preceding it, and now in Ricci, the Court is moving toward, or may have adopted a new standard for proof of intent to discriminate. That is intent will be found if the actor is conscious of the race or races of those affected by the adverse action. The majority's obvious empathy for the white firefighters leads them to the conclusion that acting to avoid adverse consequences toward African Americans is intentional discrimination against whites who might otherwise be treated favorably.

It is a radical move and, if taken, should be hard to cabin to white plaintiffs.

Posted by: Mike Zimmer | Jul 7, 2009 3:24:04 AM

Here's a better hypothetical. Suppose New Haven wanted to promote more blacks, so it said that the next promotion go-around, it's only promoting people who live in a certain part of town predominantly populated by blacks. Whites and other non-blacks of course have a claim, but do blacks who live outside that part of town as well? Tough case. My instinct is to say no, that if an employer uses some proxy to discriminate against Race X, and if that proxy (as it's a proxy and not a plain racial quota or bar) catches up some members of other races, including races on whose behalf the discrimination is being done, those people can't claim racial discrimination. Especially since this sort of thing would plainly be found a violation if others sued - the whites in my hypothetical, the Asians in yours. Allowing a claim of transferred intent doesn't really add anything as far as results go, so I don't see any cost to saying no to such claims, but do see a fair amount of benefit, doctrinally speaking, in doing so. Actually, come to think of it transferred intent could make a difference in some cases, and a hypothetical to that effect will illustrate why transferred intent's such a bad idea. Suppose New Haven wrote a test that it thinks will favor blacks and Hispanics, indeed favor them to the exclusion of white candidates. But what happens instead is black/Hispanic candidates, knowing the test is set up for them, don't bother to study and whites prepare for the test so well that they're the only ones who pass the promotion threshold. Now clearly blacks can't challenge the test just because it (a) was administered with discriminatory intent (albeit in favor of themselves) and (b) harmed them. That's absurd. And notably, that's a hypothetical where only the transferred intent plaintiff would have a claim, as the people who were actually discriminated against weren't harmed. So here you see a case where allowing transferred intent claims would make a difference, and obviously it's not very pretty.

Posted by: Asher | Jul 6, 2009 2:38:07 PM

For heaven's sake, close the italics.

Posted by: anon | Jul 6, 2009 2:02:36 PM

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