June 22, 2010

A victory for common sense; a loss for disparate impact theory

By A victory for common sense; a loss for disparate impact theory

Author: Joshua Thompson

Pacific Legal Foundation is happy to report on a great victory for equality under the law.  In Oakley v. City of Memphis, the United States District Court for the Western District Tennessee, relying chiefly on the Ricci decision, held that a group of forty Caucasian and African-American police officers were discriminated against on account of their race when the city threw out their test results because not enough minority officers had passed the test.

Here's the background.  In May, 2005, the City of Memphis decided to promote additional officers within the Memphis Police Department to the rank of major. Memphis developed a content-valid exam that was relevant to the duties of the position. The promotional exam was given and the participants were ranked based on their test scores. However, Memphis cancelled the promotion list because too few minority candidates scored well enough to be promoted and because it wanted to avoid liability under Title VII of the Civil Rights Act.

Plaintiffs, who are black, white, male, and female, brought suit alleging that Memphis intentionally discriminated against them by using race as a basis for cancelling the valid promotional process in violation of Title VII. Under Title VII, it is unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”


The Sixth Circuit Court of Appeals affirmed the District Court’s dismissal of plaintiffs’ complaint on the ground that as a matter of law, the City’s desire to avoid a potential lawsuit was a legitimate nondiscriminatory intent.  At this point PLF got involved by contacting the plaintiffs' attorney and successfully convinced him to petition the United States Supreme Court for a writ of certiorari.  PLF also filed an amicus brief in support of the petition.  While the petition was pending, the Supreme Court handed down its decision in Ricci v. DeStefanoIn Ricci, the Supreme Court held that an employer must have a "strong basis in evidence" that it will be subject to disparate impact liability before it can undertake race-conscious remedial action.  In other words, employers need more evidence of discrimination than mere statistics before rejecting content-valid and race-neutral examinations

After the Ricci decision, the Supreme Court vacated and remanded the Oakley case back to the Sixth Circuit.  The Sixth Circuit, in turn, remanded back down to the district court, and last Thursday the district court issued its ruling.  Following Ricci, the court held that the City of Memphis violated the officers' rights when it threw out their test results without anything more than a racial disparity in test results.  The court held:

In sum, it is clear from the record that the City did not weigh the validity of the process or the availability of alternative processes against the raw statistical disparity before it decided to reject the test results and terminate the promotional process. While the City may have had a good-faith belief that its actions were necessary to comply with Title VII’s disparate-impact provision, a good-faith belief, without more, does not protect the City from disparate-treatment liability.

This is a wonderful decision for equality under the law.  It shows that after Ricci, courts will no longer defer to cities own determinations that they might be subject to disparate impact lawsuits.  When cities act in a completely race-neutral manner, they should not be subject to disparate impact lawsuits.  Hopefully this development will funnel down to the race-quota activists that sue at the drop of the hat when perfect racial percentages aren't met in city jobs.   Kudos to Hank Shelton, attorney for the plaintiffs for this hard fought victory!

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