This is the much-watched case that will be argued next Wednesday, April 22, in which the City of New Haven threw out the results of its firefighter-promotion exam because of its politically incorrect results (too many whites, and not enough African Americans, did well). The 19 whites and 1 Latino firefighter thus denied promotions sued, alleging violations of the Constitution’s Equal Protection Clause and Title VII of the 1964 Civil Rights Act.
The city has been laboring mightily to recast the case now that it is before the Court, suggesting that its officials had real legal qualms about the legality and soundness of the underlying exam. But, in fact, it conceded below that the test was job-related, and even the Obama administration acknowledges that there is much in the record to suggest that any supposed misgivings about the test were a pretext for simple, politically driven discrimination. And, as the Center for Equal Opportunity pointed out in its amicus brief (filed by the Center for Individual Rights and also joined by the American Civil Rights Institute), so long as the city was motivated in part by discrimination, then Title VII’s section 703(m) makes explicit that it is liable.
But let’s focus on an admittedly thorny legal problem at least lurking in the case, and that the Court ought to provide guidance on if it remands: What if an employer decides to throw out the results of a test because of a fear that those results might be challenged as violating section 703(k) of Title VII, the notorious “disparate impact” provision added in 1991?
It’s a thorny problem because section 703(k) creates an internal inconsistency in Title VII: Over and over again the statute says that employers must ignore race in making employment decisions, and over and over again the statute says that reliance on tests is perfectly fine and that racial balancing is not what Congress has in mind — but then, in section 703(k), employers are also told that if they ignore the racial results of a test (or other selection device), they might be held liable, unless they can show that the test is “job related for the position in question and consistent with business necessity.”
So an employer can be sued for ignoring the racial results of a test, but isn’t it racial discrimination if his decision about which test to use is driven by the race of who will or won’t be selected if it is used? Of course it is, as would be obvious if the shoe were on the other foot (always a useful exercise when analyzing cases like this): If an employer threw out a test because he didn’t like the fact that African Americans had won too many promotions, would anyone deny that his decision would raise legal problems under the rest of Title VII?
The city and its allies suggest that employers must be given plenty of leeway to ignore tests and gerrymander selection procedures in order to avoid any result that might lead someone, somewhere, sometime to sue them under section 703(k). But that cannot be right. Even putting to one side that the facts of this case show there are plenty of employers, private and especially public, whose celebrations of “diversity” make clear they are not particularly trustworthy, any selection device other than a lottery is going to have a disparate impact on some demographic group. So the standard the city wants would effectively allow employers to implement de facto quotas to achieve whatever level of racial balance they want. What’s more, this balance-champing will sometimes result in discrimination against minority groups. See, e.g., Frank v. Xerox Corp.
No, the only way to square section 703(k) with the rest of Title VII (and with the Equal Protection Clause) is to interpret it strictly. An employer can be held liable under it only if “a particular” selection device is identified that “causes” a pronounced “disparate impact,” and the leeway given to the employer is for him to show the “job relatedness” of the device (for example, formal “validation” is not required). And an employer seeking to use potential liability under section 703(k) to justify disparate treatment under the rest of Title VII must show not just that he might be liable but that he had a subjective belief that was objectively justified that he would be liable under the statute as so interpreted. Indeed, if section 703(k) is treated as an evidentiary device for challenging selection devices that are themselves likely to have been adopted or continued for discriminatory reasons, this will alleviate the tension it would have with the rest of Title VII (and the Equal Protection Clause) were it interpreted to provide a shield for racial balancing.
The Court can provide employers this assurance: If they were not motivated by race, and were simply trying to hire the best people for the job, then they will not be held liable under Title VII. But if they are trying to achieve a particular racial mix — whether politically correct or incorrect — then they will be legally vulnerable. Section 703(k), and the Court’s rulings in cases like Weber, should be read as allowing race-consciousness only to avoid or remedy discrimination — not to permit new discrimination.