Amicus Curiae Brief — Ricci v. DeStefano (No. 08-328)

a 2% Gs) FILED

Nos. 07-1428, 08- FEB 2 & 2009

DFFICE OF

Qn The SUPREME ie COUR BK

SUPREME CONRC OF THK

ax ITED STATES

FRANK RICCI, et al.

Petitioners,

Vv.

JOHN DeSTEFANO, et ai.,

Respondents.

On Writs Of Certiorari To The United States

Court Of Appeals For The Second Circuit

AMICUS BRIEF OF THE CENTER FOR

INDIVIDUAL RIGHTS, THE CENTER FOR

EQUAL OPPORTUNITY, AND THE

AMERICAN CIVIL RIGHTS INSTITUTE IN

SUPPORT OF PETITIONERS

Michael E. Rosman

Counsel of Record

Center for Individual Rights

1233 20" St. NW, Suite 300

Washington, DC 20036

(202) 833-8400

butt GNI KE —

Roger Clegg

Center for Equal Opportunity

7700 Leesburg Pike, Suite 231

Falls Church, VA 22043

(703) 442-0066

Attorneys for Amici

va

QUESTION PRESENTED

For the purposes of Title VII and the Equal

Protection Clause, does a government employer’s

refusal to follow an established procedure for the

hiring of a person because of that person’s race

constitute intentional racial discrimination if the

refusal was based upon the employer’s various

concerns about the racial balance among the

successful applicants?

TABLE OF CONTENTS

QUESTION PRESENTED .................. i

TABLE OF CONTENTS .................... ii

TABLE OF CITED AUTHORITIES .......... iv

INTEREST OF AMICI CURIAE ............. 1

SUMMARY OF ARGUMENT ................ 2

EE Mido C eee hace cas oes o08 05 3

I. THE COURT BELOW’S

CONCLUSION THAT THE

DEFENDANTS DID NOT ENGAGE

IN INTENTIONAL

DISCRIMINATION IS WRONG ... 3

A. Defendants Were Motivated By

Di. Ga oud een cae ee eee + es 4

B. The Rule That Some Race-

Motivated Refusals To Hire Are

Not Intentional Discrimination

Is Incoherent And Wrong ... 9

G. The Courts Below Misconstrued

The Elements of “Intentional

Discrimination” .......... 13

-ii-

Il. TITLE VIISHOULD NOT BE

INTERPRETED TO PERMIT

REMOTE POSSIBILITIES OF

LIABILITY FOR DISPARATE

IMPACT TO EXCUSE A VIOLATION

OF ITS CORE PROVISION

PRECLUDING DISPARATE

pe, ee 16

Ill. DEFENDANTS’ CLAIM THAT THEY

WERE CONCERNED ABOUT

LIABILITY UNDER SECTION

703(K)’S “ALTERNATIVE

EMPLOYMENT PRACTICE”

PROVISION LACKS CREDIBILITY

GIVEN THE LIMITS OF THAT

ET Sede Wickbo eee caress 24

IV. THE EXISTENCE OF SELECTION

DEVICES WITH DISPARATE

IMPACT IS NOT, BY ITSELF, A

COMPELLING GOVERNMENTAL

INTEREST SUF: ICIENT TO

JUSTIFY THE USE OF RACE ... 27

eae Lei ald by eh ety ee aes 29

-iii-

TABLE OF CITED AUTHORITIES

Cases

Bray v. Alexandria Women’s Health Clinic, 506

oF & |: 14

City of Richmend v. J.A. Croson Co., 488

as ED owks cance en eeuwans . 27-28

Diaz v. Pan American World Airways, Inc., 442

F.2d 385 (5" Cir. 1971) .............. 6-7

Goodman v. Lukens Steel Co., 482 U.S. 656

[ee aées daw eeddtcnhee ee 15

Gratz v. Bollinger, 539 U.S. 244 (2003) ..... 1,12

Griggs v. Duke Power Co., 401 U.S. 424

GSE 660s eds 6344444435002 ee 16

Grutter v. Bollinger, 539 U.S. 306 (2003) .. 1, 8,9

Hayden v. County of Nassau, 180 F.3d 42

of 2 Perec rr re 10

Int'l Union, United Automobile, Aerospace &

Agricultural Implement Workers Of

America v. Johnson Controls, Inc., 499

U.S. 187 (1991)

-]V-

Janowiak v. Corporate City of South Bend,

836 F.2d 1034 (7 Cir. 1987) .......... 23

Johnson v. Transp. Agency, Santa Clara

Cty., 480 U.S. 616 (1987) .......... 21-23

McDonnell-Douglas Corp. v. Green, 411 U.S.

ieee i ss deh eee h we 6 es 21

Palmore v. Sidoti, 466 U.S. 429 (1984) ........ 7

Price Waterhouse v. Hopkins, 490 U.S. 228

ee ie od issue eee aks bee 6

Regents of the University of California v. Bakke,

es ME CEPUUED oc cece cccecccese 12, 15

Ricci v. DeStefano, 530 F.3d 87 (2d Cir.

SR Ba ee rr 10

EO 1l

Ricci v. DeStefano, 554 F. Supp. 2d 142 (D.

Conn. 2006), affd, 530 F.3d 87 (2d

rs ade 6 dk uae és 4-5, 7-8, 10, 13

United Steelworkers of America v. Weber,

MPEP cn ccccceenccvecess 20

Wards Cove Packing Co. v. Atonio, 490 U.S.

NS ete sn eb Ge ew é 0 0s 17, 25

Washington v. Davis, 426 U.S. 229 (1976) ..... 12

Watson v. Fort Worth Bank & Trust, 487

oF XN 2. = ere ae 16-17, 25

Wisconsin v. City of New York, 517 U.S. 1

a aah 6Lees eck Rae ee ee nae et 8

Wygant v. Jackson Bd. Of Education, 476

I rn Oo ee eG ee ge 8

Constitutional Provisions, Statutes, And

Regulations

ek t RT Rl PPPTEVERTTETT TTT 12

ee ss 6 any k a hs eee ewe A 20

CE TR) re 18

GB UBC. G ERGGO TE) . wc ccc csc scccsees 3,13

Ce Ws FEED gc cree cccreneunes 19

SW BRED cc ccc ccc cerevseevecs 18

ee PE 6 5 bs vtech hee een viewenns 18

42 U.S.C. § 2000e-2(k) .............. 19, 24-27

ee es ED «ys. bb oad sce coupeen ener 19

-Vi-

42 U.S.C. § 2000e-2(m) ............. 3, 9, 14, 19

42 U.S.C. § 2000e-5(g)(2)(B) .........5..2.... 19

42 U.S.C. § 2000e-Gla) ....... cc ccc cccecees 18

42 U.S.C. §§ 2000e, et seg. ........... 2, passim.

U.S. Const., amend. XIV,§1 ......... 2, passim.

-vii-

INTEREST OF AMICI CURIAE’

The Center for Individual Rights (“CIR”) is a

public interest law firm based in Washington, D.C.

It has litigated many discrimination lawsuits,

including several in this Court. It has a particular

interest in, and has brought numerous cases

concerning, what it views as unconstitutional

racial classifications by government. £.g., Gratz v.

Bollinger, 539 U.S. 244 (2003); Grutter v.

Bollinger, 539 U.S. 306 (2003).

The Center for Equal Opportunity and the

American Civil Rights Institute are nonprofit

research, education, and public advocacy

organizations. These amici devote significant time

and resources to the study of the prevalence of

racial, ethnic, and gender discrimination by the

federal government, the several states, and private

entities. They educate the American public about

the prevalence of discrimination in American

society, and publicly advocate the cessation of

racial, ethnic, and gender discrimination by the

federal government, the several states, and private

entities. These amici also have participated as

. Blanket consent letters have been filed with this

Court. No counsel for a party authored this brief in whole

or in part, and no counsel or party made a monetary

contribution intended to fund the preparation of this brief.

No person other than amici curiae, their members, or their

counsel made a monetary contribution to its preparation or

submission.

amicus curiae in numerous United States

Supreme Court cases relevant to the analysis of

this case.

SUMMARY OF ARGUMENT

The court below concluded that the decision

not to hire the petitioners (the “firefighters”) was

race-motivated but not “intentional

discrimination.” Consequently, it is contrary to

every decision this Court ever has issued ~

concerning the meaning of that phrase.

Specifically, the Second Circuit followed a

rule declaring that any effort to avoid the

disparate impact of a selection device that does not

use explicit racial classifications is never

intentional discrimination. Thus, under this rule,

even where the employer has no real fear of any

liability — because, for example, its selection

criteria is obviously job-related (such as language

fluency for a translator) — it may engage in

flagrantly race-motivated conduct to “remedy” any

disparate impact, provided it does not use explicit

racial classifications. This interpretation of both

Title VII and the Equal Protection Clause is just

wrong. The primary purpose of both Title VII and

the Equal Protection Clause is to prevent

intentional discrimination, t.e., the consideration

of a prohibited factor in an employment or other

decision. There can be no doubt that that is what

happened here, and the judgment of the court

below must be reversed.

’

tw

'

ARGUMENT

I. THE COURT BELOW’S CONCLUSION

THAT THE DEFENDANTS DID NOT

ENGAGE IN INTENTIONAL

DISCRIMINATION IS WRONG

Section 703(a)(1) of Title VII states:

It shall be an unlawful employment

practice for an employer —

(1) to fail or refuse to hire... any

individual . . . because of such

individual’s race, color, religion, sex,

or national origin.

There can be no dispute that the defendants

refused to hire (or promote) plaintiffs. The only

question is whether, with all facts and inferences

favoring the firefighters, that refusal was because

of any individual’s race. It was.

Accordingly, the firefighters met their

summary judgment burden of showing that race

was a “motivating factor” for the decision not to

hire them (42 U.S.C. § 2000e-2(m)), and that

defendants engaged in intentional discrimination

invoking strict scrutiny under the Equal

Protection Clause.

A. Defendants Were Motivated By Race

The district court opinion in this case whose

reasoning was adopted by the court below

identified a substantial number of purported

different race-connected motivations for the

defendants’ decision not to hire plaintiffs. E.g.,

Ricci v. DeStefano, 554 F. Supp. 2d 142, 152 (D.

Conn. 2006), affd, 530 F.3d 87 (2d Cir. 2008):

Plaintiffs’ evidence -- and defendants'

own arguments -- show that the City's

reasons for advocating non-

certification were related to the racial

distribution of the results. As the

transcripts show, a number of

witnesses at the CSB [New Haven

Civil Service Board] hearings,

including Kimber, mentioned

"diversity" as a compelling goal of the

promotional process. Ude, Marcano,

and Burgett specifically urged the

CSB not to certify the results because,

given the number of vacancies at that

time, no African-Americans would be

eligible for promotion to either

Lieutenant or Captain, and no Latinos

would be eligible for promotion to

Captain. They believed this to be an

undesirable outcome that could

subject the City to Title VII litigation

by minority firefighters, and the City's

leadership to political consequences.

di

Had the tests not yielded what

defendants perceived as racially

disparate results, defendants would

not have advocated rejecting the tests,

and plaintiffs would have had an

opportunity to be promoted.

Id. at 162:

[Defendants] acted based on the

following concerns: that the test had a

statistically adverse impact on

African-American and Hispanic

examinees; that promoting off of this

list would undermine their goal of

diversity in the Fire Department and

would fail to develop managerial role

models for aspiring firefighters; that it

would subject the City to public

criticism; and that it would likely

subject the City to Title VII lawsuits

from minority applicants that, for

political reasons, the City did not

want to defend.

As the firefighters’ brief shows, these are

' euphemistic descriptions of defendants’ concerns,

with little evidence to support them — especially on

defendants’ summary judgment motion, when the

evidence is considered with all disputes and

inferences favoring the firefighters. But even

these euphemistic descriptions demonstrate tnat

the firefighters met their summary judgment

burden of proving a genuine issue of material fact

on whether the refusal to hire them was because of

their race or color.

In general, “intentional discrimination” on

the basis of race is the consideration of race in

making a decision. Price Waterhouse v. Hopkins,

490 U.S. 228, 239 (1989) (plurality op.) (“In

passing Title VII, Congress made the simple but

momentous announcement that sex, race, religion,

and national origin are not relevant to the

selection, evaluation, or compensation of

employees.”); id. at 240 (plurality op.) (“We take

these words to mean that gender must be

irrelevant to employment decisions. .. .”); id. at

242 (plurality op.) (“We conclude. . . that Congress

meant to obligate [a Title VII plaintiff] to prove

that the employer relied upon sex-based

considerations in coming to its decision.”).

A consideration does not avoid falling under

the rubric of being “race-based” simply because the

employer believes that there are non-racial

consequences that would flow from hiring persons

of a particular race — the loss of business from

racists, co-employee dissatisfaction or departures,

political consequences, etc. Title VII does not

permit an employer to rely upon discriminatory

“customer preference” as a legitimate business

justification. E.g., Diaz v. Pan American World

Airways, Inc., 442 F.2d 385, 387 (5 Cir. 1971) (sex

was not a bona fide occupational qualification for

flight attendant notwithstanding lower court’s

y

finding that passengers “overwhelmingly preferred

to be served by female stewardesses”).” Neither

does the Constitution. See Palmore v. Sidoti, 466

U.S. 429, 433 (1984) (state court violated the

Equal Protection Clause when, in its analysis of

the best interests of the child, it weighed the fact

that child’s mother was in a mixed-race marriage;

“The question, however, is whether the reality of

private biases and the possible injury they might

inflict are permissible considerations for removal

of an infant child from the custody of its natural

mother. We have little difficulty concluding that

they are not.”).

Nor does it matter that the employer did not

hire anyone, i.e., that it superficially treated

people the same. Ricci, 554 F. Supp. 2d at 161.

The question is not whether those who had

achieved different levels of success on the civil

service tests were treated identically; it is whether

defendants treated plaintiffs the same as

defendants would have treated hypothetical

African American candidates had they done just as

well as plaintiffs had on the exams.

7 Diaz actually considered whether sex was a bona

fide occupational qualification. But that only demonstrates

that there could be no dispute that “customer preference”

was not a “non-discriminatory” reason for the defendants’

policies of making employment decisions influenced by an

employee’s sex. The BFOQ inquiry is made only after a

determination that the defendant has engaged in

intentional discrimination.

Here, defendants’ motivations were racial.

Defendants were concerned that hiring plaintiffs

would “undermine their goal of diversity in the

Fire )epartment”; “would fail to develop

managerial role models for aspiring firefighters’;

and “would subject the City to public criticism.”

Ricci v. DeStefano, 554 F. Supp. 2d at 162. Each of

these concerns is directly related to most of the

plaintiffs’ race, and thus constitute racial

considerations that would support a finding of

intentional race discrimination.

Indeed, the first two of these rationales have

been considered as possible compelling

governmental interests under the Equal Protection

Clause (albeit in the educational context only).

Grutter v. Bollinger, 539 U.S. 306 (2003) (diversity

in higher education was a compelling

governmental interest); Wygant v. Jackson Bd. Of

Education, 476 U.S. 267, 276 (1986) (plurality op.)

(rejecting role model theory as compelling

governmental interest for race-conscious school

teacher layoffs). The important point here is that

questions like “strict scrutiny” and “compelling

governmental interest” are only reached as a

justification for intentional discrimination. E.g.,

Wisconsin v. City of New York, 517 U.S. 1, 18 n.8

(1996) ("Strict scrutiny of a classification affecting

a protected class is properly invoked only where a

plaintiff can show intentional discrimination by

the Government."). And the third rationale

(avoiding “public criticism”) is nearly

indistinguishable from the “customer preference”

rationale discussed above.’

The courts below also identified avoiding

Title VII liability as a possible motivation. The

firefighters here argue that they raised a genuine

issue of material fact as to whether that purported

motivation was a pretext. But even if it were not a

pretext, and even if “avoiding Title VII liability”

were actually a non-discriminatory motivation, it

would still have been only one of several race-

based motivations. That is, its existence would

only go to damages, not liability. 42 U.S.C.

§ 2000e-2(m) ("an unlawful employment practice is

established when the complaining party

demonstrates that race ... was a motivating factor

for any employment practice, even though other

factors also motivated the practice").

B. The Rule That Some Race-Motivated

Refusals To Hire Are Not Intentional

Discrimination Is Incoherent And

Wrong

The courts below held that a racially-

motivated refusal to hire does not constitute

. Similarly, the fact that a particular race-motivated

decision might be facially race-neutral, so all-important to

the courts below, might go to whether the decision was

narrowly-tailored under the Equal Protection Clause.

Grutter, 539 U.S. at 339. But, again, narrow-tailoring

analysis is part of the strict scrutiny given to all forms of

intentional discrimination.

“intentional discrimination” in violation of Section

703 or the Equal Protection Clause. Ricci, 554 F.

Supp. 2d at 160 (“Defendants’ motivation to avoid

making promotions based on a test with a racially

disparate impact, even in a political context, does

not, as a matter of law, constitute discriminatory

intent, and therefore such evidence is insufficient

for plaintiffs to prevail on their Title VII claim.”

(emphasis added)); id. at 162 (rejecting Equal

Protection Clause claim because “[n]Jone of the

defendants’ expressed motives could suggest to a

reasonable juror that defendants acted ‘because of

animus agaiast non-minority firefighters who took

the ...exams”). These rulings are wrong.

In reaching its conclusion, the district court

applied the following rule: “‘nothing . . . precludes

the use of race-neutral means to improve racial

and gender representation .... [T]he intent to

remedy the disparate impact of the prior exams is

not equivalent to an intent to discriminate against

non-minority applicants.” Ricci, 554 F. Supp. 2d

at 158-59 (quoting Hayden v. County of Nassau,

180 F.3d 42, 51 (2d Cir. 1999)). The gist of the

district court’s opinion, then, was that the

firefighters’ evidence of defendants’ desire to avoid

a substantially white promotion cadre for political

or other reasons simply did not prove intentional

discrimination in violation of either Title VII or the

Equal Protection Clause. In affirming the district

court’s judgment based upon “the reasons stated in

the thorough, thoughtful, and well-reasoned

opinion of the court below,” Ricci v. DeStefano, 530

-10-

F.3d 87 (2d Cir. 2008), the circuit court adopted

that reasoning.

By “race neutral” or “facially neutral” acts,

the courts below mean any acts that do not create

explicit racial classifications. (Race must obviously

be a motivation if one is trying to remedy a racially

disparate impact.) E.g., Ricci v. DeStefano, 530

F.3d 88, 90 (2d Cir. 2008) (Parker, J., concurring

in the denial of en banc rehearing) (referring to

“facially neutral, albeit race-conscious” actions).

That is, the courts below distinguished between

action that uses race explicitly, and facially-

neutral but racially-motivated conduct in certain

contexts. This Court has never made any such

distinction. Nor should it. It makes little sense to

treat two identical employment actions differently

depending upon whether the employer happened

to keep its racial motivation a secret or not. But,

under the Second Circuit’s rule, if an employer

announces that it will hire those from a civil

service list with list numbers divisible by five, and

the (unannounced) reason it is doing so is that

such a procedures will result in three whites and

two non-whites being hired, that is a “facially

neutral but race-motivated” remedy to disparate

impact. If it announces that it will hire the top

three scoring whites and the top two scoring non-

whites, and does so, then it has used an explicit

racial classification and has engaged in intentional

discrimination. Nothing in this Court’s opinions

has suggested that such a distinction is a

reasonable interpretation of Title VII or the Equal

sir

Protection Clause.

If taken seriously, the analysis of the courts

below would mean that colleges and professional

schools would need worry no longer about

inconvenient precedents like Gratz v. Bollinger,

539 U.S. 244 (2003), and Regents of the University

of California v. Bakke, 438 U.S. 265 (1978).

Instead of adding points for minority applicants

(as in Gratz) or creating a special admissions

program for them (as in Bakke), those institutions

could simply add an irrelevant admissions

criterion that they believed minorities would do

well in — say the 50-yard backstroke. Since that

would be a “facially neutral” albeit racially-

motivated criteria, and it would diminish the

disparate impact resulting from the use of

standardized admission tests (see 28 C.F.R.

§ 42.104(b)(2)), it would not even constitute

intentional discrimination or violate the Equal

Protection Clause (which requires intent,

Washington v. Davis, 426 U.S. 229 (1976)).

The fact that the Second Circuit limits its

idiosyncratic definition of “intentional

discrimination” to situations where the employer is

addressing the results of a selection device with

disparate impact does not make it coherent. To

the contrary. If an employer takes “facially

neutral” acts to manipulate the racial results of an

employment process in any other context -- if, for

example, the selection device does not have

disparate impact but the employer is still

92

dissatisfied with the racial results for public

relations or other reasons -- then those “facially

neutral” acts are deemed a form of intentional

discrimination.

c. The Courts Below Misconstrued The

Elements of “Intentional

Discrimination”

The courts below misconstrued the “intent”

requirement of the Equal Protection Clause and

Title VII because they equated it with either (a) an

express racial classification or (b) some kind of

malevolent motivation against whites. Just after

listing the defendants’ various motives — including

the goal of “diversity in the Fire Department” and

avoiding “public criticism” — the district court held

that “/nJone of the defendants’ expressed motives

could suggest to a reasonable juror that defendants

acted ‘because of animus against non-minority

firefighters who took the Liev ‘enant and Captain

exams.” Ricci, 554 F. Supp. 2d at 162 (emphasis

added). This use of “animus” is contrary to the

language of the statute, and the interpretation this

Court has given that word in Title VII and other

civil rights laws.

First, Section 703(a) does not require that an

employer act “because of animus against”

someone based upon race; it requires only that the

employer have acted “because of” race. Animus

has been used occasionally by this Court to

describe a motivation that is the same as

-}3-

intentional discrimination or disparate treatment.

But it is not mentioned in the statute, and is

certainly not an added requirement beyond what is

explicitly required by Section 703(m).

In any event, the lower courts appear to be

using “animus” as a synonym for hatred or dislike,

and there is nothing in Title VII or Equal

Protection jurisprudence, or that of other civil

rights laws, that would support such a

requirement. In Bray v. Alexandria Women’s

Heaith Clinic, 506 U.S. 263, 269-70 (1993), this

Court held:

We do not think that the “animus”

requirement [in Section 1985(3)] can

be met only by maliciously motivated,

as opposed to assertedly benign

(though objectively invidious),

discrimination against women. It

does demand, however, at least a

purpose that focuses upon women by

reason of their sex — for example (to

use an illustration of assertedly

benign discrimination), the purpose of

“saving” women because they are

women from a combative, aggressive

profession such as the practice of law.

(emphasis in original)

Cf. Int'l Union, United Automobile, Aerospace &

Agricultural Implement Workers Of America v.

Johnson Controls, Inc., 499 U.S. 187, 199 (1991)

-14-

(policy of excluding women capable of becoming

pregnant from jobs involving exposure to lead

violated Title VII; "the absence of a malevolent

motive does not convert a facially discriminatory

policy into a neutral policy with a discriminatory

effect. Whether an employment practice involves

disparate treatment through explicit facial

discrimination does not depend on why the

employer discriminates but rather on the explicit

terms of the discrimination"); Goodman v. Lukens

Steel Co., 482 U.S. 656, 668 (1987) (Section 1981

liability found against unions for failing to pursue

claims of racial discrimination on the part of their

members even though "there was no suggestion

below that the [u]nions held any racial animus

against or denigrated blacks generally"); id. at 669

(affirming lower court finding that a union is liable

under Section 1981 "regardless of whether . . . its

leaders were favorably disposed toward

minorities"). Cf. Bakke, 438 U.S. at 307 (opinion of

Powell, J.):

If petitioner’s purpose is to assure

within its student body some specified

percentage of a particular group

merely because of its race or ethnic

origin, such a preferential purpose

must be rejected not as insubstantial

but as facially invalid. Preferring

members of any one group for no

reason other than race or ethnic origin

is discrimination for its own sake.

This the Constitution forbids.

-15-

II. TITLE VII SHOULD NOT BE

INTERPRETED TO PERMIT REMOTE

POSSIBILITIES OF LIABILITY FOR

DISPARATE IMPACT TO EXCUSE A

VIOLATION OF ITS CORE PROVISION

PRECLUDING DISPARATE TREATMENT

The primary purpose of Title VII is to

prohibit intentional discrimination. The

prohibition against “disparate impact”

discrimination should not be used to excuse

intentional discrimination.

Even in the initial case adopting the

“disparate impact” paradigm, this Court made

clear that a “[djiscriminatory preference for any

group, minority or majority, is precisely and only

what Congress has proscribed.” Griggs v. Duke

Power Co., 401 U.S. 424, 431 (1971). Thus, this

Court has described the “disparate impact”

prohibition as a prophylactic designed to attack

Title VII’s core concern, intentional discrimination.

E.g., Watson v. Fort Worth Bank & Trust, 487 U.S.

977, 987 (1988) (“[T]he necessary premise of the

disparate impact approach is that some

employment practices, adopted without a

deliberately discriminatory motive, may in

operation be functionally equivalent to intentional

discrimination.”).

This Court, and various of its Justices, has

expressed concerns that an overly-permissive

interpretation of the disparate impact model would

26>

——y

7

lead to “quotas,” a form of intentional

discrimination. E.g., id. at 992 (plurality op.) (“We

agree that the inevitable focus on statistics in

disparate impact cases could put undue pressure

on employers to adopt inappropriate prophylactic

measures .... Congress has specifically provided

that employers are not required to avoid ‘disparate

impact’ as such.” (emphasis in original) (citing 42

U.S.C. § 2000e-2(j))); id. at 993 (plurality op.) (“If

quotas and preferential treatment become the only

cost-effective means of avoiding expensive

litigation and potentially catastrophic liability,

such measures will be widely adopted... .

Allowing the evolution of disparate impact

analysis to lead to this result would be contrary to

Congress’ clearly expressed intent... .”); Wards

Cove Packing Co. v. Atonio, 490 U.S. 642, 652

(1989) (permitting a prima facie case of disparate

impact to be established based solely on a

discrepancy between proportion of minorities in

employer’s two different job categories “cannot be

squared ... with the goals behind the statute. ...

The only practicable option for many employers

would be to adopt racial quotas, insuring that no

portion of their work forces deviated in racial

composition from the other portions thereof; this is

a result that Congress expressly rejected in

drafting Title VII.”); id. (permitting a prima facie

case to be so established “would ‘leave the

employer little choice .. . but to engage in a

subjective quota system of employment selection.

This, of course, is far from the intent of Title VII.”

(quoting Albemarle Paper Co. v. Moody, 422 U.S.

-17-

405, 449 (1975) (Blackmun, J., concurring in

judgment))). This Court’s reluctance to allow the

disparate impar** theory of liability to undermine

the ban on disparate treatment shows the superior

place the latter prohibition has in the statute.

That prohibiting intentional discrimination

is the core goal of Title VII can be seen further

from various parts of its text. First, as the above-

cited cases note, Section 703(j) makes clear that

any prohibition on disparate impact does not

require an employer to engage in racial balancing

(which would, of course, be a form of disparate

treatment). 42 U.S.C. § 2000e-2(j). The safe-

harbor for professionally-developed, job-related

exams (42 U.S.C. § 2000e-2(h)) further

demonstrates that the Congress that passed Title

VII was not trying to attack racial imbalance.

Section 707(a) grants the Attorney General the

right to bring a lawsuit against those who have

committed a “pattern or practice” of conduct

“intended to deny the full exercise of the rights

herein described.” 42 U.S.C. § 2000e-6(a)

(emphasis added).

Provisions passed in the Civil Rights Act of

1991 further demonstrates this point. When

Congress permitted plaintiffs to recover

compensatory damages for discrimination, in the

Civil Rights Act of 1991, it limited that remedy to

instances of intentional discrimination. 42 U.S.C.

§ 1981a(1) (excluding “an employment practice

that is unlawful because of its disparate impact”

-|8-

from scope of the provision providing

compensatory damages). Section 703(1) prohibits a

particular kind of intentional discrimination — the

adjustm cnt of test results on the basis of race —

that Congress feared was being used by some

employers to remedy the disparate impact of such

exams (and which is implicated in this case). 42

U.S.C. § 2000e-2(1). Finally, Section 703(m)

creates liability whenever a prohibited

consideration is a “motivating factor” in en

employment decision, even if the employer would

have done precisely the same thing in the absence

of the improper factor. 42 U.S.C. §§ 2000e-2(m),

2000e-5(g)(2)(B).

Not only does Title VII’s text clearly set its

primary goal as eliminating intentional

discrimination, but it also sets the elimination of

intentional racial discrimination as the highest

priority. Thus, while “business necessity” can

provide a defense to a claim of disparate impact

discrimination (but not intentional discrimination,

see Section 703(k)(2)), and a “bona fide

occupational qualification” showing can provide a

defense to intentional sex, religion, or national

origin discrimination (Section 703(e)(1)), neither of

those defenses is available in a case of intentional

racial discrimination.

Given the primacy of the prohibition against

intentional employment discrimination in Title

VII, the defense that an employer was trying to

avoid disparate impact liability must be confined

-19-

so that it does not erode the statute’s central

purpose — much less the central purpose of other

statutes, like 42 U.S.C. § 1981, which prohibit only

intentional discrimination. In this regard, the

motivation of “avoiding disparate impact liability”

cannot be viewed as just another “non-

discriminatory” motive for the refusal to hire, with

the absence of evidence for the non-discriminatory

motive going solely to its credibility and not to its

legal sufficiency, when (as is true here) “avoiding

liability” is inextricably bound with the race of the

applicants.

Thus, even if “avoiding disparate impact

liability” were the sole motivation for defendants’

decision here — and, as shown in Part I, the courts

below found a variety of different motives having

nothing to do with avoiding liability — it would not

be sufficient for defendants simply to show that

they had a good faith belief that they might be

sued, or even that they might be liable. To prevent

such a defense from eroding Title VII’s core

prohibition against intentional discrimination,

defendants should be required to show a strong

evidentiary basis for such a belief, much as they

have to do under the Equal Protection Clause.

An analogy can be drawn to race-conscious

affirmative action plans, with which an “avoiding

liability” defense has much in common. United

Steelworkers of America v. Weber, 443 U.S. 193,

209 n.9 (1979) (Court declines to reach company

and union’s alternative argument that “their plan

-20-

was justified because they feared that black

employees would bring suit under Title VII if they

did not adopt an affirmative action plan”). In

Johnson v. Transp. Agency, Santa Clara Cty., 480

U.S. 616 (1987), this Court placed the adoption of a

sex-conscious affirmative action plan within the

McDonnell-Douglas Corp. v. Green, 411 U.S. 792

(1973) burden-shifting framework. Johnson, 480

U.S. at 626-27. Thus, upon a plaintiffs

establishing a prima facie case that a prohibited

factor was taken in to account in an employment

decision, “the burden shifts to the employer to

articulate a nondiscriminatory rationale for its

decision. The existence of an affirmative action

plan provides such a rationale.” Jd. at 626.*

Yet, despite the reference to the McDonnell-

4 This Court’s adoption of the McDonnell-Douglas

framework in Johnson, and specifically its characterization

of race-conscious or sex-conscious affirmative action plans

as “nondiscriminatory rationales” in that framework, has

led to some logical difficulties. Although this Court has held

that McDonnell-Douglas is inapplicable in cases in which

there is direct evidence of discrimination, courts have

nonetheless deemed “affirmative action” plans to constitute

direct evidence of discrimination. See Bass v. Bd. Of County

Commissioner, Orange County, 256 F.3d 1095, 1111 n.7 (11"

Cir. 2001) (rejecting argument that Johnson requires

affirmative action plans io be considered only as

circumstantial evidence of discrimination, and treating such

plans as “direct evidence” of discrimination if invalid). For

this reason, amici believe that the characterization ofa

race-conscious or sex-conscious affirmative action plan as a

“nondiscriminatory rationale” was mistaken.

#1.

Douglas framework, no lower courts have adopted

the position that the employer need only show a

good-faith belief that it had adopted a valid

affirmative action plan (regardless of whether it

meets the evidentiary requirements in Johnson).

To the contrary, in determining whether the

“employer’s justification is pretextual and the plan

is invalid,” Johnson, 480 U.S. at 626, courts will

look at whether the evidence shows a “manifest

imbalance” in the job category in question, and no

such “manifest imbalance” can be found where, for

example, the employer “simply calculated

imbalances in all categories according to the

proportion of women in the area labor pool, and

then directed that hiring be governed solely by

those figures.” Id. at 636. See Hill v. Ross, 183

F.3d 586, £90 (7“ Cir. 1999) (“Employers may not

shed their responsibilities under Title VII. . . by

intoning affirmative action.”); Maitland v.

University of Minnesota, 155 F.3d 1013, 1017 (8"

Cir. 1999) (dispute of fact over whether salary

regression study allegedly showing disparity in

women faculty’s salaries properly considered

important variables precluded summary judgment

on male faculty member’s Title VII challenge to

university’s distribution of three million dollars in

salary increases to a class of women); Smith v.

Virginia Commonwealth University, 84 F.3d 672,

676-77 (4" Cir. 1996) (similar); Hammond uv.

Barry, 826 F.2d 73, 78 (D.C. Cir. 1987) (rejecting

affirmative action plan for D.C. Fire Department

based upon the demographics of the District only

where Fire Department hired firefighters from

x. %

surrounding suburbs as well); Janowiak v.

Corporate City of South Bend, 836 F.2d 1034,

1039-40 (7 Cir. 1987) (rejecting affirmative action

plan for firefighters and police in South Bend that

was based on general population statistics instead

of the relevant labor pool). Similarly, courts must

examine, as a factual matter, whether the

manifest imbalance occurred in a “traditionally

segregated job categor[y]” (Johnson, 480 U.S. at

632) and whether the plan “trammel|[s] the rights”

of those not benefitting from the plan (id. at 637).

Any “avoiding disparate impact liability”

defense recognized here should be similar!y

limited. That is, to be deemed a “non-

discriminatory rationale,” there must be more than

just an employer’s good-faith belief that liability is

possible, but strong evidence that it is so.

Specifically, there should be evidence that there is

a statistical disparity caused by an identifiable

employer practice that is likely not defensible as

job-related. Anything less would erode Title VII's

core prohibition against intentional

discrimination.

x. *

ITI.

DEFENDANTS’ CLAIM THAT THEY

WERE CONCERNED ABOUT LIABILITY

UNDER SECTION 703(K)’S

“ALTERNATIVE EMPLOYMENT

PRACTICE” PROVISION LACKS

CREDIBILITY GIVEN THE LIMITS OF

THAT SECTION

Defendants claim that they were concerned

about possible lawsuits claiming that some

unknown alternative employment practice

rendered them liable under Title VII. This claim

lacks credibility given the limited nature of the

relevant provision under Section 703(k).

Section 703(k)(1)(A)(ii) states:

An unlawful employment practice

based on disparate impact is

established under this subchapter

only if-...

(ii) the complaining party makes the

demonstration described in

subparagraph (C) with respect to an

alternative employment practice and

the respondent refuses to adopt such

alternative employment practice.

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42 U.S.C. § 2000e-2(k)(1)(A)(ii) (emphasis added).°

Plaintiffs attempting to prove a claim of

discrimination through this method must show

that there was an alternative selection device that

was equally effective in terms of costs and other

burdens in meeting the employer’s legitimate

business goals. Watson, 487 U.S. at 998

(O’Connor, J., concurring). Thus, under Section

703(k)(1), an employer is not liable for failing to

adopt an alternative employment practice unless

and until (1) the alternative practice has been

proven to be one that is equally effective in

meeting the employer’s legitimate business goals

and (2) the employer, after having been presented

. Subparagraph C, to which subparagraph AC(ii) refers,

states that the demonstration alluded to in A(ii) “shall be in

accordance with the law as it existed on June 4, 1989, with

respect to the concept of ‘alternative employment practice.”

42 U.S.C. § 2000e-2(k1\C). Although Wards Cove Packing

was decided on June 5, 1989, its two paragraphs on the

topic of alternative employment practices (Wards Cove, 490

U.S. at 660-61) did not purport to change the law that

existed the day before on “alternative employment

practices” — indeed, whet it had to say on the subject was

likely dicta, since the holding of the case was that the

petitioners had not demonstrated a prima facie case of

disparate impact. Jd. at 650-53. Accordingly, it is unclear

what meaning should be attributed to these opaque and

self-referencing provisions. In any event, as shown in the

text, the key provision for purposes here is separate from

the showing needed to demonstrate that an alternative

employment practice meets the requirements of

subparagraph C.

-25-

with this evidence, refuses to adopt the alternative

employment practice.

What this means, of course, is that, in the

usual case, the remedy against an employer for

violating Section 703(k)(1)(A)(ii) will be injunctive

relief. While it is possible that the “equal

effectiveness” showing was made years earlier,

chances are that it is not made until trial. (That

certainly would have been the case for any

hypothetical challenge to the promotion procedures

here.) An employer cannot “refuse to adopt” an

equally effective practice until after it has been

demonstrated to be “equally effective.” And an

employer cannot be held liable for damages or

other compensatory remedies for conduct it

engaged in prior to the conduct (here, the refusal

to adopt) that rendered it liable.

Moreover, courts must take into account an

employer’s legitimate need for timely appointments

to needed positions. An alternative employment

practice was not “equally effective” for

appointments made in the past if it would have

taken another year or more to implement when

compared to the selection device that the employer

was ready to use. Given the care with which New

Haven developed the civil service tests in question,

detailed in the firefighters’ brief, that certainly

would have been the case here.

For these reasons, the provisions of Section

703(k)(1) can be used to enjoin employers from

.

using certain practices in the future, but can

almost never be used to impose liability for

appointments made in the past. It could not have

been used to impose liability for appointment of

the firefighters in accordance with Connecticut

civil service law. Thus, the defendants’ claim that

they could have been liable under Section 703(k)(1)

had they promoted the firefighters in accordance

with Connecticut civil service law lacks credibility.

IV. THE EXISTENCE OF SELECTION

DEVICES WITH DISPARATE IMPACT IS

NOT, BY ITSELF, A COMPELLING

GOVERNMENTAL INTEREST

SUFFICIENT TO JUSTIFY THE USE OF

RACE

Finally, with respect to the Equal Protection

Clause, all race-conscious decision-making is

subject to strict scrutiny, requiring the use of

narrowly-tailored means to achieve a compelling

governmental interest. The mere existence of a

selection device with disparate impact does not

create a compelling governmental interest

sufficient to invoke racial decision-making.

This Court has said that the use of racial

preferences should be limited to extreme cases

where they are needed to break down long-term

policies of exclusion. City of Richmond uv. J.A.

Croson Co., 488 U.S. 469, 509 (1989) ("In the

extreme case, some form of narrowly tailored racial

preference might be necessary to break down

ae

patterns of deliberate exclusion." (emphasis

added)). Although this Court in Croson noted that

the evidence before the City of Richmond did not

even constitute a prima facie case of a statutory or

constitutional violation (id. at 500), it never held

that evidence that did constitute a “prima facie

case” would be sufficient, by itself, to constitute a

compelling governmental interest. (If this Court

had said that the evidence before the City of

Richmond did not even constitute “flimsy evidence”

of discrimination, it would hardly follow that

flimsy evidence was sufficient to constitute a

compelling governmental interest.)

Indeed, if the existence of selection criteria

with disparate impact were sufficient, it seemed

fairly clear that the various capital and other

requirements of the City of Richmond’s contracting

program likely met that standard. Id. at 507

(“Many of the barriers to minority participation in

the construction industry relied upon by the city to

justify a racial classification appear to be race

neutral.”).

Selection devices with disparate impact are

pervasive in our society. Requiring Chinese

translators to be fluent in Chinese probably has a

disparate impact against groups other than

Chinese-Americans. If that were all that were

required to constitute a compelling state interest, a

state employer could provide preferences to whites,

blacks, and Hispanics. Similarly, if a public school

requires its teachers to have a certain college

-28-

degree, and that requirement eliminates more

minorities than whites, the public school could

engage in race-conscious hiring favoring the

disparately-impacted minorities. In short, racial

preferences, rather than being rare and limited in

scope, would be pervasive.

CONCLUSION

For the foregoing reasons, the judgment of

the court below should be reversed.

Michael E. Rosman

Center for Individual Rights

1233 20° St. NW, Suite 300

Washington, DC 20036

(202) 833-8400

Roger Clegg

Center for Equal Opportunity

7700 Leesburg Pike, Suite 231

Falls Church, VA 22043

(703) 442-0066

Attorneys for Amici

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