Author: Joshua Thompson
Last week I blogged about the City of Chicago's drastic measures to avoid disparate-impact liability, and noted how the Supreme Court was set to hear Lewis v. Chicago. That case deals with the statute of limitations in disparate-impact cases. (You can read more about the case here.)
Today PLF filed its amicus curiae brief in Lewis. While Part I discusses the statute of limitations in disparate-impact cases, I find Part II more interesting where PLF (taking its cue from Justice Scalia), argues that disparate-impact theory is unconstitutional under the Equal Protection Clause. PLF's amicus brief can be read here.
In the years following the enactment of disparate-impact, the Supreme Court had largely side-stepped the conflict between the Equal Protection Clause and disparate-impact. Last year, however, in Ricci v. DeStefano, Justice Scalia, brought this conflict to light. He recognized that, "the war between disparate impact and equal protection will be waged," and cautioned the Court that the disparate-impact provisions often require employers to take racially discriminatory action.
Because disparate-impact lawsuits are so extremely costly to defend, cities take painstaking measures to develop tests that are race-neutral. In Ricci, the small City of New Haven spent $100,000 developing its firefighting exam, and in Chicago, the City spent $5 million. But despite the great costs cities bear in developing these tests, they fail to produce a racially harmonious outcome, thus subjecting cities to disparate-impact lawsuits.
Since cities cannot ensure that their tests will have the "proper" proportional outcome, they are resorting to extreme measures to avoid costly litigation. Some cities base their selection mechanism on what criteria can ensure the proper racial outcome. So instead of designing selection criteria to achieve the best workforce, criteria are chosen based on what skin color they will produce. And some private employers (who can also be subjected to disparate-impact) have chosen to leave cities that have high minority populations altogether.
The City of Chicago is contemplating a different route. This month, a story broke that the Chicago Police Department was considering scrapping written tests altogether. This is the natural result of disparate-impact theory. Decades of carefully crafting tests has failed to provide results that achieve the "proper" racially proportionate outcome. Cities can either fight their testing in court, at costs of millions of dollars, or choose alternative methods that will produce the "right" workforce.
Instead of worrying about eliminating discrimination, or even achieving the most-qualified workforce, the disparate-impact provisions require cities to worry about lawsuits. Worrying about disparate-impact lawsuits causes racial balancing, abandonment of minority heavy locations, and potentially, the scrapping of objective testing. Thus, rather than preventing and reducing employment discrimination, disparate-impact theory requires it. The Supreme Court has a chance to right this wrong this term, by striking down disparate-impact as a violation of the Constitution.