Author: Joshua Thompson
Having had a day to reflect on the Supreme Court's decision in Lewis, my opinion hasn't changed much. The most disappointing aspect of the case remains the Court's silence on the constitutionality of the disparate impact provisions of Title VII. Less than a year since the Court appeared on the precipice of striking down the discriminatory provisions, the lack of any mention of the Equal Protection Clause is unfortunate.
On the the question of the statute of limitations, while PLF argued for a contrary result, Justice Scalia's reasoning is not unreasonable. PLF arguedthat since the disparate impact provisions are designed to thwart discrimination (a conceded point), their statute of limitations should run the same as Title VII's disparate treatment provisions (i.e. 300 days from the date of the intentional discriminatory treatment). Justice Scalia rejected this approach. He wrote:
"For disparate-treatment claims—and others for which discriminatory intent is required—that means the plaintiff must demonstrate deliberate discrimination within the limitations period. … But for claims that do not require discriminatory intent, no such demonstration is needed."
Indeed, as I have frequently pointed out, Title VII's disparate impact provisions require no discrimination whatsoever. And as much as proponents of racial preferences have tried to label Chicago's actions here as discriminatory, they have done nothing even remotely discriminatory. They administered a test in which the top scores of the test didn't fall evenly in proportion to the race of the test takers. Nothing more. The test is not alleged to have asked questions that were derogatory or racially biased. The results didn't line up perfectly (or within 85%) of the takers — and that is sufficient to show a disparate impact.
So getting back to Scalia's point, because disparate impact requires no triggering, intentionally discriminatory act, the theory that the statute of limitations should run from the test results is incomplete. The relevant act is the disproportional racial makeup of the applicant pool, so while that occurs at the point the City releases the test results (and the corresponding hiring policy), it is also present when the City makes additional hires from the applicant pool.
It is hard to make a compelling argument against Scalia's position. For example, PLF certainly wouldn't argue that a Jim Crow law passed in 1880, should remain on the books just because the statute of limitations to challenge that law has passed. On the flip side, it is easy to sympathize with cities that spend millions of dollars to ensure objectivity in their testing, but then can never be satisfied that their test will not face a legal challenge. Indeed, after Lewis, African-American Chicago firefighter applicants that took the test back in 1995 would be free to challenge the policy today.
Which brings us full circle back to the point PLF made in its Lewis brief. The true problem with the applicants' lawsuit is not that they filed their lawsuit late. Rather, the legal theory on which their lawsuit is based considers completely color-blind state action potentially illegal. Instead of ensuring that cities employ race-neutral criteria in hiring decisions, disparate impact almost guarantees that cities will take race conscious action. If a city can be subject to litigation fifteen years down the road, for administering a race-neutral test that produced a 15% racially disproportionate outcome, cities are going to find ways to ensure that their actions produce racially proportionate results. Cities will take race-conscious action, whether explicitly or implicitly, that shields them from litigation. This is something the Equal Protection Clause does not countenance, and that is why disparate impact needs to be struck down as unconstitutional. The time has come for a lawsuit that squarely presents that question with the Court.