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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0221%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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.

-24-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0221%3A18. Public record. Not legal advice.