Author: Joshua Thompson
The Supreme Court handed down its decision today in Lewis v. City of Chicago. The issue before the Court concerned the statute of limitations for disparate impact claims. Specifically, at what point did the statute begin to run – when Chicago announced the results of its test, or did the statute run anew each time the City made a selection from the pool of candidates in the well-qualified group?
PLF filed an amicus brief in support of the City. PLF argued that the relevant act was the publication and notification of the test results. This occurred for all applicants at the same time, and set the statute of limitation in motion. All hiring decisions were based on the test results.
We also argued that having a statute that begins to run anew each time the City makes a new hire from the list, would produce absurd results. A city could never be sure, even 15 years down the road, whether they could be liable for administering a test in the past. Of all arguments raised by PLF, this is the only one that the Court talked about. Justice Scalia conceded that point, "The City and its amici warn that our reading will result in a host of practical problems for employers and employees alike. Employers may face new disparate-impact suits for practices they have used regularly for years." However, Justice Scalia noted that a converse reading of the statute would produce different absurd results: "Truth to tell, however, both readings of the statute produce puzzling results. Under the City’s reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact."
More disappointing, however, is that the Court did not even acknowledge the conflict between the disparate-impact provisions of Title VII and the Equal Protection Clause. Last year in Ricci (the New Haven firefighters case), Scalia concurred, but wrote separately to note the conflict between disparate-impact and the Equal Protection Clause. "As the facts of these cases illustrate, 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 decisionmaking is, as the Court explains, discriminatory."
PLF argued in its brief to the Court that disparate impact cannot be squared with the Equal Protection Clause. The brief argued that the disparate impact provisions of Title VII were unconstitutional both in their enactment and in their continued use. Unfortunately, the City of Chicago conceded that their test produced a disparate-impact. While Chicago never acknowledged any intentional discrimination (indeed the City spent $5 million ensuring the test was purely objective), its concession of disparate-impact liability likely made it more difficult for the court to address the ongoing problem between disparate impact and the Equal Protection Clause. Indeed, despite the Court's willingness to talk about this problem a year ago, there is no hint of the conflict between Title VII and the EPC in the Court's opinion today.
PLF released this statement on the case:
"Unfortunately, the Court did not get to the most important issue in this case: The fact that the lawsuit was based on a legal doctrine that is bogus, both morally and intellectually," said Pacific Legal Foundation attorney Joshua Thompson. "That doctrine is known as 'disparate impact' theory. It is an unrealistic, paint-by-numbers approach to the issue of discrimination. Essentially, it brands a defendant as guilty until proven innocent. Instead of focusing on concrete examples of bias by identifiable agencies or individuals, disparate-impact is all about statistics. It says courts should infer discrimination if the results of a test or policy don't line up with the racial mix in the larger community.
"But real life isn't color-coded, so it is simplistic to assume that a test or policy is unfair if it doesn't meet a predetermined racial outcome," Thompson continued."Laws that use disparate impact analysis, or other forms of pigeonholing people by race, are in conflict with the Equal Protection Clause of the Fourteenth Amendment, which says people shouldn't be judged by skin color. The Court had an opportunity to make that point, but it took a pass — and that's very regrettable."