Author: Joshua Thompson
In a move long overdue, New Haven, Connecticut, promoted fourteen firefighters to either lieutenant or captain. The firefighters, despite scoring well enough on tests to be promoted back in 2003, had to fight for their rights all the way to the Supreme Court. PLF was involved in the Supreme Court case, Ricci v. DeStefano, which held that a city needs a "strong basis in evidence" before it takes race-based action to remedy a potential Title VII disparate impact claim.
The case was an important victory for proponents of equality under the law, insofar as it restricts the instances where government can simply look at skin color when taking action. The case, however, highlighted an important problem with the theory of disparate impact. As Justice Scalia pointed out in his concurrence in Ricci, 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." Thus, the disparate impact provisions of Title VII, likely conflict with Equal Protection Clause which prohibits government from making race-based decisions except in very limited circumstances (not present in disparate impact cases).
This problem will be highlighted by PLF in a brief to the Supreme Court this term in Lewis v. City of Chicago, which revolves around the statute of limitations for disparate impact claims. While disparate impact claims clearly need a definite statute of limitations, this case provides another opportunity for the Supreme Court to strike down disparate impact theory as violative of the Equal Protection Clause. I will blog on that topic again when PLF files its brief. Today is day to congratulate the New Haven firefighters for standing up for their rights, and setting an important precedent for equality throughout the nation.