Does Ricci Herald a new disparate impact?

Boston University Law Review

Volumn 90, Issue 6, 2010, Pages 2181-2222

  Seiner, Joseph A ^a   Gutman, Benjamin N ^b  

^a UNIVERSITY OF SOUTH CAROLINA   (United States)

^b NONE

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EID: 78651298616     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (305)

1. Transcript of Oral Argument at 28-29, Ricci v. DeStefano, 129 S. Ct. 2658 (2009) (No. 07-1428), available at http://www.supremecourt.gov/oral-arguments/ argument-transcripts/07-1428.pdf.
2. 129 S.Ct. 2658 (2009).
3. Id. at 2673.
4. Id. at 2664.
5. Id.
6. See Joan Biskupic, Firefighter Case May Keep Sotomayor in Hot Seat: How She Viewed 'Reverse Bias' Has Critics' Attention, USA TODAY, June 1, 2009, at 2A.
7. Id.
8. see also John Christoffersen, 14 Promoted After Court Ruling, DESERET MORNING NEWS (Salt Lake City), Dec. 11, 2009, at A02;
9. Supreme Countdown: Sotomayor on Verge of Becoming First Hispanic Justice on High Court, CHI. TRIB., Aug. 6, 2009, at 6.
10. The earlier Second Circuit case was Ricci v. DeStefano, 530 F.3d 87 (2d Cir. 2008) (per curiam), rev'd,129 S. Ct. 2658 (2009).
11. See infra Part II (discussing the holding of the Ricci case).
12. See, e.g., Cheryl I. Harris & Kimberley West-Faulcon, Reading Ricci: White(ning) Discrimination, Racing Test Fairness, 58 UCLA L. REV. 73 (2010);
13. Helen Norton, The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, 52 WM. & MARY L. REV. 197 (2010),
14. Richard Primus, The Future of Disparate Impact, 108 MICH. L. REV. 1341 (2010) [hereinafter Primus, The Future of Disparate Impact];
15. Michael J. Zimmer, Ricci's "Color-Blind" Standard in a Race Conscious Society: A Case of Unintended Consequences?, available at http://ssrn.com/abstract=1529438.
16. Ricci v. DeStefano, 129 S. Ct. 2658, 2681 (2009).
17. See infra Part IV (setting forth the possible Ricci affirmative defense to disparate-impact discrimination).
18. Zimmer, supra note 9, at 27-28.
19. See infra Part IV.
20. See infra Part IV.
21. Noah D. Zatz, Managing the Macaw: Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent, 109 COLUM. L. REV. 1357, 1368 (2009) ("Few propositions are less controversial or more embedded in the structure of Title VII analysis than that the statute recognizes only disparate treatment and disparate impact theories of employment discrimination." (internal quotation marks omitted)).
22. See also Joseph A. Seiner, Disentangling Disparate Impact and Disparate Treatment: Adapting the Canadian Approach, 25 YALE L. & POL' Y REV. 95, 98-117 (2006).
23. See Tristin K. Green, A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong, 60 VAND. L. REV. 849, 874 (2007) ("With its focus on intent, disparate treatment theory has long been understood to present the paradigmatic picture of discrimination as the product of animus against or conscious reliance on irrational stereotypes concerning members of particular groups.");
24. Harry F. Tepker, Jr., Title VII, Equal Employment Opportunity, and Academic Autonomy: Toward a Principled Deference, 16 U.C. DAVIS L. REV. 1047, 1050 (1983) ("Simply, disparate treatment is intentional discrimination.").
25. 42 U.S.C. § 2000e-2(a)(1) (2006); see also Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) (noting that disparate treatment is "the most easily understood type of discrimination" and "[undoubtedly ⋯ the most obvious evil Congress had in mind when it enacted Title VII");
26. Tristin K. Green, Discrimination in Workplace Dynamics: Toward a Structural Account of Disparate Treatment Theory, 38 HARV. C.R.C.L. L. REV. 91, 112 (2003) ('Traditional disparate treatment theory conceptualizes discrimination as individual, measurable, and static, looking into the state of mind of a particular decisionmaker at a discrete point in time.").
27. See Teamsters, 431 U.S. at 335 n.15 ("Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.");
28. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1168 (1995) ("Under existing law, the disparate treatment plaintiff⋯ must prove not only that she was treated differently, but that such treatment was caused by purposeful or intentional discrimination.").
29. Michael Selmi, Way the Disparate Impact Theory a Mistake?, 53 UCLA L. REV. 701, 768 (2006) ("Intentional discrimination is difficult to prove not because the evidence of intent is lacking, but because the evidence that exists, chiefly circumstantial in nature, is inconsistent with our societal vision of discrimination. Absent the smoking gun, racial epithets, or other explicit exclusionary practices, it has been, and remains, hard to convince courts that intentional discrimination exists.").
30. 411 U.S. 792 (1973).
31. Id. at 802; see also Tepker, supra note 16, at 1051-52.
32. McDonnell Douglas, 411 U.S. at 802.
33. Id. at 802-04.
34. See id. at 802 n.13 ("The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations.").
35. See Martin J. Katz, Reclaiming McDonnell Douglas, 83 NOTRE DAME L. REV. 109, 114 (2007) ("[M]ost courts of law (even some that criticize it) continue to mandate [the McDonnell Douglas test's] use - paying little heed to its detractors. Virtually all courts continue to require unwilling plaintiffs to use McDonnell Douglas.");
36. Stacy E. Seicshnaydre, Is the Road to Disparate Impact Paved with Good Intentions?: Stuck on State of Mind in Antidiscrimination Law, 42 WAKE FOREST L. REV. 1141,1145 (2007).
37. See Martha Chamallas, The Market Excuse, 68 U. CHI. L. REV. 579, 599-600 (2001) ("The major conceptual distinction between the two theories is that disparate treatment requires proof of discriminatory intent or motivation, while disparate impact reaches unintentional discrimination that stems from neutral policies or practices that have a disproportionate [effect]⋯."); see also Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977) ("[Disparate impact discrimination] involve[s] employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.").
38. See Charles A. Sullivan, The World Turned Upside Down?: Disparate Impact Claims by White Males, 98 NW. U. L. REV. 1505, 1513 (2004) [hereinafter Sullivan, The World Turned Upside Down?].
39. See Jennifer C. Braceras, Killing the Messenger: The Misuse of Disparate Impact Theory to Challenge High-Stakes Educational Tests, 55 VAND. L. REV. 1111, 1141 (2002) ("Although there is a broad consensus favoring the use of the disparate treatment model to eliminate purposeful discrimination in all arenas, the use of the disparate impact model to curtail practices that are not intentionally discriminatory remains controversial and is, therefore, limited in scope and reach." (footnotes omitted)); Selmi, supra note 19, at 702.
40. See, e.g., Smith v. City of Jackson, 544 U.S. 228, 249 (2005) (O'Connor, J., concurring); Washington v. Davis, 426 U.S. 229, 245 (1976) ("[W]e have difficulty understanding how a law establishing a racially neutral qualification for employment is nevertheless racially discriminatory ⋯.");
41. L. Camille Hubert, Redefining the Burdens of Proof in Title VII Litigation: Will the Disparate Impact Theory Survive Wards Cove and the Civil Rights Act of 1990?, 32 B.C. L. REV. 1, 3-4 (1990);
42. Charles Sullivan, Disparate Impact: Looking Past the Desert Palace Mirage, 47 WM. & MARY L. REV. 911, 953-54 (2005) [hereinafter Sullivan, Looking Past the Desert Palace Mirage] (discussing the "enormous controversy" over the passage of the Civil Rights Act of 1991, which codified disparate impact); infra Part LB. (discussing the Wards Cove decision and the divisive split on the Supreme Court over the breadth of disparate impact); infra Part II (discussing the Ricci decision and the divisive split on the Supreme Court over the contours of disparate impact).
43. See Seiner, supra note 15, at 101.
44. See Selmi, supra note 19, at 708-14.
45. See id. at 710-11; see also Hubert, supra note 29, at 88 ("As long as minority group members continue to suffer the disadvantages imposed on them by centuries of societal discrimination, the equal treatment notion of equality underlying the disparate treatment theory of employment discrimination will continue to fall short of the promise of true equality for minority group members.").
46. See Selmi, supra note 19, at 708-15; Tepker, supra note 16, at 1071-72 ("In the early years of [T]itle VII's existence, plaintiffs' attorneys were faced with an enormous challenge: to escape the strait jacket of disparate treatment theory under which the plaintiff was obligated to prove the employer's biased state of mind.").
47. See Selmi, supra note 19, at 715-16.
48. Id. ("[Negotiations with employers would be smoother if they could move away from a focus on intentional discrimination, which carried with it an implicit label of blame the employers were expected to resist. To the EEOC, and to plaintiffs more generally, it mattered little how a particular act was defined so long as the power to remedy the effects were available." (citation omitted)).
49. See ROBERT BELTON ET AL., EMPLOYMENT DISCRIMINATION LAW 196 (7th ed. 2004).
50. 347 U.S. 483 (1954).
51. See BELTON ET AL., supra note 36, at 196-97.
52. 401 U.S. 424 (1971).
53. See ZIMMER ET AL., CASES AND MATERIALS ON EMPLOYMENT DISCRIMINATION 212 (7th ed. 2008); BELTON ET AL., supra note 36, at 204.
54. Griggs, 401 U.S. at 426-27.
55. Id. at 427.
56. Id. at 427-28.
57. Id.
58. Id. at 428.
59. See GEORGE A. RUTHERGLEN & JOHN J. DONOHUE III, EMPLOYMENT DISCRIMINATION: LAW AND THEORY 145 (2005).
60. Griggs, 401 U.S. at 425-26.
61. Id. at 428.
62. Id.
63. Id. at 429.
64. Id. The appellate court did reverse some of the lower court opinion, "rejecting the holding that residual discrimination arising from prior employment practices was insulated from remedial action." Id.
65. Id.
66. Id.
67. Id. at 430.
68. Id. at 430-31.
69. Id. at 431.
70. Id. at 436.
71. Id.
72. Id. at 432.
73. Id. at 436.
74. See BELTON ET AL., supra note 36, at 204 ("Scholars have criticized the Supreme Court on its failure in Griggs to explain the theoretical underpinnings of the disparate impact theory."); ZIMMER ET AL., supra note 40, at 228;
75. Barbara J. Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking, 104 YALE L.J. 2009, 2019-20 n.41 (1995);
76. see generally George Rutherglen, Disparate Impact Under Title VII: An Objective Theory of Discrimination, 73 VA. L. REV. 1297 (1987) (discussing basis for disparate-impact theory).
77. Griggs, 401 U.S. at 426 n.1 (quoting 42 U.S.C. § 2000e-2). See RUTHERGLEN & DONOHUE, supra note 46, at 145 ("Griggs was decided under the original version of Title VII, which contained no provisions specifically addressed to the theory of disparate impact. At most, isolated clauses in the main prohibitions and defenses in the statute obliquely address the issues " ⋯).
78. See Connecticut v. Teal, 457 U.S. 440, 445-46 (1982); ZIMMER ET AL., supra note 40, at 228 ("To the extent the Griggs principle can be found in the provisions of § 703, it is in the language of paragraph (a)(2)⋯.").
79. See Robert Belton, The Dismantling of the Griggs Disparate Impact Theory and the Future of Title VII: The Need for a Third Reconstruction, 8 YALE L. & POL'Y REV. 223, 223 (1990) (observing that Title VII "remainfed] silent about whether it [was] also concerned with facially neutral employment practices, adopted without a discriminatory motive, that adversely affect the employment opportunities of racial minorities and women");
80. Seiner, supra note 15, at 97; Sullivan, Looking Past the Desert Palace Mirage, supra note 29, at 964.
81. See Girardeau A. Spann, Color-Coded Standing, 80 CORNELL L. REV. 1422, 1479-80 (1995) ("In 1971, when Griggs was decided, the Court was in a very real sense still the Warren Court. ⋯ By 1989, however, when Wards Cove was decided, Justices Black, Douglas, Harlan, and Stewart had been replaced by Chief Justice Rehnquist, and Justices O'Connor, Scalia, and Kennedy. The 1989 Court was much more conservative on racial issues than the immediate post-Warren Court had been." (citations omitted));
82. Amos N. Jones & D. Alexander Ewing, The Ghost of Wards Cove: The Supreme Court, the Bush Administration, and the Ideology Undermining Title VII, 21 HARV. BLACKLETTER L.J. 163, 164 (2005).
83. See Selmi, supra note 19, at 733 ("By the end of the theory's first decade, the Courthad rejected more challenges than it had accepted, and it had largely limited the [disparate 67490 U.S. 642 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166,105 Stat. 1071 (codified in scattered sections of 42 U.S.C.).
84. Id. at 657-59. See Belton, supra note 64, at 225.
85. Wards Cove, 490 U.S. at 645-48.
86. Id.
87. Id. at 649.
88. Id. at 651-52.
89. Id. at 659.
90. Id.
91. See id. at 657-59; Belton, supra note 64, at 240.
92. Wards Cove, 490 U.S. at 662-63 (Stevens, J., dissenting).
93. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
94. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515-20 (1993).
95. Id. at 518 (internal quotation marks and citation omitted).
96. See, e.g., Christine Jolls, Antidiscrimination and Accommodation, 115 HARV. L. REV. 642, 652 (2001) (stating that "[a] leading gloss on the conception of disparate impact liability arising from [Griggs] is that disparate impact functions as a means of smoking out subtle or underlying forms of intentional discrimination on the basis of group membership");
97. Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493, 520 (2003) [hereinafter Primus, Round Three];
98. see also In re Emp't Discrimination Litig. Against Ala., 198 F.3d 1305,1321-23 (11th Cir. 1999) (discussing the role of disparate impact in employment discrimination law); infra Part V (discussing the view that disparate impact theory targets intentional discrimination hidden by employers).
99. See Primus, Round Three, supra note 80, at 520.
100. See infra Part I.C. (addressing the impact of Civil Rights Act of 1991 on disparate-impact claims).
101. Pub. L. No. 102-166, 105 Stat. 1071 (codified in scattered sections of 42 U.S.C.).
102. See Sullivan, The World Turned Upside Down?, supra note 27, at 1520.
103. See Civil Rights Act of 1991, § 3(2), 105 Stat, at 1071 (including among the Act's purposes "to codify the concepts of 'business necessity' and 'job related' enunciated by the Supreme Court in Griggs v. Duke Power Co. and in the other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonid" (citations omitted));
104. Julia Lamber, And Promises to Keep: The Future in Employment Discrimination, 68 IND. L.J. 857, 861 (1993). Indeed, the fact that portions of Wards Cove are no longer good law was made explicit as to the showing of alternative employment practices, for the statute now requires that the law should be interpreted "as it existed on June 4, 1989 [the day before the Wards Cove decision], with respect to [this] concept." Civil Rights Act of 1991, § 105(a)(C), 105 Stat, at 1074 (codified at 42 U.S.C. § 2000e-2(k)(1)(C) (2006)).
105. See 42 U.S.C. § 2000e-2(k); Seiner, supra note 15, at 96-97, 102-04.
106. 42 U.S.C. § 2000e-2(k); see ZIMMER ET AL., supra note 40, at 231-75;
107. Peter Mahoney, The End(s) of Disparate Impact: Doctrinal Reconstruction, Fair Housing and Lending Law, and the Antidiscrimination Principle, 47 EMORY L.J. 409,422-24 (1998).
108. 42 U.S.C. § 2000e-2(k)(1)(A). A plaintiff must show that "each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice." 42 U.S.C. § 2000e-2(k)(1)(B).
109. 42 U.S.C. § 2000e-2(k)(1)(A); 42 U.S.C. § 2000e-2(m); see RUTHERGLEN & DONOHUE, supra note 46, at 148.
110. 42 U.S.C. § 2000e-2(k)(1)(A)(ii); 42 U.S.C. § 2000e-2(k)(1)(C);
111. see Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 WASH & LEE L. REV. 3, 38 (2005).
112. 42 U.S.C. § 1981a; see Primus, Round Three, supra note 80, at 521 n.1 18.
113. See RUTHERGLEN & DONOHUE, supra note 46, at 145; Seiner, supra note 15, at 103 (recognizing that with the passage of the Civil Rights Act of 1991 "disparate impact hadclear statutory backing"); Sullivan, The World Turned Upside Down?, supra 1534.
114. See Ricci v. DeStefano, 129 S. Ct. 2658, 2682-83 (2009) (Scalia, J., (questioning the constitutional validity of the disparate-impact provisions of Title VII).
115. Id. at 2664-65 (2009) (majority opinion).
116. Id. at 2664.
117. Id. at 2665.
118. Id.
119. Id.
120. Id.
121. Id. at 2665-66.
122. Id. at 2666.
123. Id.
124. Id.
125. Id.
126. Id.
127. Id. at 2667.
128. Id. at 2667-68 (citation omitted).
129. Id. at 2669 (citation omitted).
130. Id.
131. Id.
132. Id. at 2669-70.
133. Id. at 2670.
134. Id.
135. Id. at 2671.
136. Id.
137. Id. (quoting Ricci v. DeStefano, 554 F. Supp. 2d 142,160 (D. Conn. 2006)).
138. Id. at 2672.
139. Id. at 2663-64.
140. Id. at 2673 (emphasis added).
141. Id. (emphasis added) (internal quotation marks omitted).
142. Id.
143. Id. at 2673.
144. Id. at 2674.
145. Id. at 2673.
146. Id. at 2674.
147. Id. at 2676.
148. Id. at 2677.
149. Id. at 2678.
150. Id.
151. Id.
152. Id. at 2678-79.
153. Id. at 2679.
154. Id. at 2678-79.
155. Id. at 2679.
156. See id. at 2679-81.
157. Id. at 2680.
158. Id. at 2681.
159. Id.
160. Id.
161. Id.
162. Id.
163. Id.
164. Id.
165. Id. at 2681-83 (Scalia, J, concurring).
166. Id. at 2682.
167. Id.
168. Id. at 2683. Justice Alito, joined by Justices Scalia and Thomas, wrote a separate concurrence as well, addressing the dissent's concerns that "the Court's recitation of the facts leaves out important parts of the story." Id. at 2683-90 (Alito, J., concurring).
169. Id. at 2690-91 (Ginsburg, J., dissenting).
170. Id. at 2691.
171. Id. at 2710 (quoting Griggs v. Duke Power Co., 401 U.S. 424,431 (1971)).
172. See id. at 2689-2710.
173. See, e.g., Zimmer, supra note 9, at 4.
174. Scholars have already questioned the validity of the statistical approach taken by the lower courts, however. See Joseph L. Gastwirth & Weiwen Miao, Formal Statistical Analysis of the Data in Disparate Impact Cases Provides Sounder Inferences than the U.S. Government's 'Four-Fifths' Rule: An Examination of the Statistical Evidence in Ricci v. DeStefano, 8 LAW, PROBABILITY & RISK 171, 173 (2009) (arguing that, under the framework used by the lower court, there is a 60% chance that even a perfectly fair test will be found to have a disparate impact).
175. Ricci, 129 S. Ct. at 2682 (Scalia, J., concurring).
176. See, e.g., Primus, The Future of Disparate Impact, supra note 9, at 1342-45 (arguing that there are three ways to read Ricci, only one of which is fatal to disparate-impact doctrine).
177. Ricci, 129 S. Ct. at 2681.
178. See Howard Wasserman, When Ricci Met Iqbal, PRAWFSBLAWG (Oct. 16, 2009, 157 Ricci, 129 S. Ct. at 2681 (emphasis added).
179. See Taylor v. Sturgell, 553 U.S. 880, 892-95 (2008) (explaining the general rule and the limited exceptions).
180. See id. (reviewing six categories of recognized exceptions to the rule against nonparty preclusion).
181. See Charles A. Sullivan, Ricci v. DeStefano: End of the Line or Just Another Turn on the Disparate Impact Road?, 104 NW. U. L. REV. COLLOQUY 201, 214 (2009), http://www.law.northwestern.edu/lawreview/colloquy/2009/40/ LRColl2009n40Sullivan.pdf
182. See 42 U.S.C. § 2000e-2(n) (2006).
183. See Sullivan, End of the Line, supra note 160, at 214.
184. See id. ("[F]rom a civil procedure perspective, the normal rule is that the black firefighters may not be bound by a judgment in a case in which they are not parties.").
185. See Complaint for Damages and Injunctive Relief at 2, Briscoe v. New Haven, No. 3:09-cv-01642 (CSH) (D. Conn. Oct. 15, 2009) (alleging that the written examination used by the New Haven Fire Department had a "disparate impact on African-American candidates").
186. *2 (D. Conn. July 12, 2010), appeal docketed. No. 10-1975 (2d Cir. Sept. 27,2010).
187. See, e.g., Zimmer, supra note 9, at 28, 30 (calling this passage "obscure" and "inscrutable").
188. See, e.g., United States v. Oakar, 111 F.3d 146, 153 (D.C. Cir. 1997) ('"[C]arefully considered language of the Supreme Court, even if technically dictum, generally must be treated as authoritative."' (quoting Doughty v. Underwriters at Lloyd's, London, 6 F.3d 856, 861 n.3 (1st Cir. 1993))).
189. See generally Lisa M. Durham Taylor, Parsing Supreme Court Dicta to Adjudicate Non-Workplace Harms, 57 DRAKE L. REV. 75 (2008) (discussing the use of Supreme Court dicta by the lower courts).
190. See infra Part V (discussing the analogy between the Ricci affirmative defense and affirmative defensives in other areas of employment-discrimination law).
191. See infra Part IV.A.
192. See infra Part IV.B.
193. 401 U.S. 424,429-36 (1971).
194. See Zimmer, supra note 9, at 24-28.
195. Ricci v. DeStefano, 129 S. Ct. 2658, 2681 (2009).
196. See id. at 2664-65.
197. Id. at 2681
198. See id.
199. Id.
200. See Ronald J. Allen, Structuring Jury Decisionmaking in Criminal Cases: A Unified Constitutional Approach to Evidentiary Devices, 94 HARV. L. REV. 321, 327 (1980) ("An affirmative defense is defined as an issue upon which the defendant bears the burden of persuasion, usually by the standard of a preponderance of the evidence." (footnote omitted));
201. Robert Belton, Burdens of Pleading and Proof in Discrimination Cases: Toward a Theory of Procedural Justice, 34 VAND. L. REV 1205,1214-15 (1981).
202. See Ricci, 129 S. Ct. at 2677.
203. See id.
204. See id. at 2681.
205. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971).
206. See supra Part I (discussing the background and theoretical basis for disparate-impact claims).
207. Ricci, 129 S. Ct. at 2672-73.
208. Id. at 2682 (Scalia, J., concurring) ("[T]he disparate-impact provisions ⋯ fail to provide an affirmative defense for good-faith (i.e., nonracially motivated) conduct, or perhaps even for good faith plus hiring standards that are entirely reasonable.").
209. See Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).
210. Id. at 818;
211. see John C. Jeffries, Jr., Disaggregating Constitutional Torts, 110 YALE L.J. 259, 264 (2000) ("Doctrinally, therefore, qualified immunity applies comprehensively to all damages actions brought against state and local officers under § 1983, as well as to analogous actions against federal officers under Bivens ⋯. In all such cases, die defendant is immune from award of money damages 'if a reasonable officer could have believed' in the legality of the act that caused the plaintiffs injury." (citation omitted)).
212. Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Groh v. Ramirez, 540 U.S., 551, 567 (2004) (Kennedy, J., dissenting)).
213. See id. at 818 (affirming that this procedure "promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable").
214. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998) (noting that "in a suit to enjoin further conduct," qualified immunity would not be "available to block a determination of law").
215. See 42 U.S.C. § 1981a(a)(1) (2006); supra note 90 and accompanying text (discussing damages in disparate-impact cases).
216. See § 2000e-5(g)(1);
217. Cheryl L. Anderson, Damages for Intentional Discrimination by Public Entities Under Title II of the Americans with Disabilities Act: A Rose by Any Other Name, But Are the Remedies the Same?, 9 BYU J. PUB. L. 235, 240 n.19 (1995); Primus, Round Three, supra note 80, at 521 n. 118.
218. Richardson v. McKnight, 521 U.S. 399, 408 (1997).
219. Id.; Wyatt v. Cole, 504 U.S. 158, 168 (1992) ("In short, the nexus between private parties and the historic purposes of qualified immunity is simply too attenuated to justify such an extension of our doctrine of immunity.").
220. See Lewis, 523 U.S. at 841 n.5. 196 See supra Part IV.A.
221. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
222. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 998 (1988) (plurality opinion) ("Our cases make it clear that employers are not required, even when defending standardized or objective tests, to introduce formal 'validation studies' showing that particular criteria predict actual on-the-job performance.");
223. Sullivan, Looking Past the Desert Palace Mirage, supra note 29, at 994 ("[F]ormal validation, as it is employed in disparate impact cases challenging testing regimes, will not be required across the spectrum of disparate impact cases⋯ . [M]any cases have always approached business necessity from a more qualitative, less empirical, perspective." (footnotes omitted)).
224. See Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. §§ 1607.1(B), 1607.5-1607.6(2009).
225. Id. pt. 1607.
226. Id. §§ 1607.1-1607.16.
227. Id. § 1607.5(C).
228. See supra Part IV.A (identifying the affirmative defense to disparate-impact claims potentially created by the Supreme Court in the Ricci decision and explaining the contours of that defense).
229. See Ricci v. DeStefano, 129 S. Ct. 2658, 2677 (2009).
230. See Belton, supra note 64, at 232;
231. David Yellen, The Bottom Line Defense in Title VII Actions: Supremen Court Rejection in Connecticute V. Teal and a Modified approach, 68 CORNELL L.REV. 735, 749 (1983).
232. See Waston V. Fort worth Bank & Trust, 487 U.S. 977, 987 (1988) ; Peter Siegelman, Contributory Disparate Impacts in Employment Discrimination law, 49 Wm. & MARY L. REV. 515, 550-51 (2007).
233. See Martha Chamallas, Evolving Conceptions of Equality Under Title VII : Disparate Impact Theory and the demise of the Bottom Line Principle, 31 UCLA L.REV. 35, 374 n. 329 (1983) (It is often difficult ot predict the outcome of a challenge to the validity of selection device because judicial assessment of the adequacy of validation studies may be very comples.") cf. Julia Lamber, discretionary Decisionmaking: the Application of title consider the facts the before it in terms of the disparte impact theory. A contrary action would exalt the form of the cause of action over the substance of the complaint." (footnote omitted))
234. See FED. R. CIV. P. 56 (c)(2 ( Stating the a motion for summary judgement is entitled to judgment as a matter of law")
235. See Uniform gudelines of employee selection Procedures, 29 C.F.R §§ 1607.11607.14(2009).
236. See Ricci v. DeStefano, 554 F. Supp. 2d 142, 154-56 (D. Conn. 2006) (assuming that no formal validation study had been done), affd, 530 F.3d 87 (2d Cir. 2008) (per curiam), rev'd, 129 S. Ct. 2658 (2009).
237. Ricci, 129 S. Ct. at 2678 ("IOS devised the written examinations, which were the focus of the CSB's inquiry, after painstaking analyses of the captain and lieutenant positions - analyses in which IOS made sure that minorities were overrepresented.").
238. See, e.g., 29 C.F.R. § 1607.1(B) (stating that employers need not "conduct validity studies of selection procedures where no adverse impact results," suggesting that they must do so where there is an adverse impact (emphasis added)).
239. See Belton, supra note 64, at 232 (discussing the use of validation studies in disparate-impact cases); Yellen, supra note 205, at 749 (observing that in deciding questions of job-relatedness, courts usually look to validation studies).
240. See Belton, supra note 64, at 232; Yellen, supra note 205, at 749-50.
241. See Ricci, 129 S. Ct. at 2681 (addressing the inherent tension between the "competing expectations under the disparate-treatment and disparate-impact provisions" of Title VII).
242. See supra Part IV (discussing the Ricci affirmative defense).
243. See supra Part I (discussing the role of disparate impact as a theory of unintentional discrimination).
244. See supra Part I.
245. See supra Part IV.
246. See Cheryl L. Anderson, What Is "Because of the Disability" Under the Americans with Disabilities Act? Reasonable Accommodation, Causation, and the Windfall Doctrine, 27 BERKELEY J. EMP. & LAB. L. 323, 333 (2006) ("Cases proceeding on a disparate treatment theory require proof of motive. Cases proceeding on a disparate impact theory do not ⋯ ." (citation omitted)); Braceras, supra note 28, at 1140;
247. George Rutherglen, Disparate Impact, Discrimination, and the Essentially Contested Concept of Equality, 74 FORDHAM L. REV. 2313, 2328 (2006).
248. See 42 U.S.C. § 12111(5)(A) (2006) ("The term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year ⋯.");
249. Jeffrey A. Mandell, Comment, The Procedural Posture of Minimum Employee Thresholds in Federal Antidiscrimination Statutes, 72 U. CHI. L. REV. 1047, 1047-77 (2005).
250. Braceras, supra note 28, at 1167 ("Claims that the disparate impact model should be applied to high-stakes educational assessments in order to smoke out covert intentional discrimination have their roots in Professor George Rutherglen's 'objective theory of discrimination.' According to this theory, the disparate impact model serves as a mechanism for identifying intentional discrimination in the absence of direct evidence of racial or ethnic animus." (footnote omitted)); Jolls, supra note 80, at 652;
251. Jennifer L. Peresie, Toward a Coherent Test for Disparate Impact Discrimination, 84 IND. L.J. 773, 779 (2009) (citing Primus, Round Three, supra note 80, at 518)); see also In re Emp't Discrimination Litig. Against Ala., 198 F.3d 1305, 1321-23 (11th Cir. 1999).
252. See supra Part I.A-B; see also Seicshnaydre, supra note 25, at 1163-64 (observing that some "theorists consider the proposition that disparate impact exists primarily to help litigants uncover discriminatory motive that is lurking below the surface ⋯. As previously noted, this basis is framed by Professor Primus as 'evidentiary dragnet.' ⋯ Disparate impact is thus conceived as a method of proof through which intent can be proven indirectly." (citation omitted)).
253. See Ricci v. DeStefano, 129 S. Ct. 2658, 2682-83 (2009) (Scalia, J., concurring).
254. In re Emp't Discrimination Litig., 198 F.3d at 1321 ("Though the plaintiff is never explicitly required to demonstrate discriminatory motive, a genuine finding of disparate impact can be highly probative of the employer's motive since a racial 'imbalance is often a telltale sign of purposeful discrimination.'" (citation omitted)).
255. See supra Part I.B.
256. Elaine W. Shoben, Disparate Impact Theory in Employment Discrimination: What's Griggs Still Good for? What Not?, 42 BRANDEIS L.J. 597, 597 (2004); Sullivan, Looking Past the Desert Palace Mirage, supra note 29, at 912-13.
257. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1162 n.3 (1995) ("Because most individual employment decisions do not implicate identifiable practices that can be shown to have a statistically significant disparate impact on members of a protected group, very few Title VII cases are actually amenable to disparate impact treatment.");
258. see also Olatunde C.A. Johnson, Disparity Rules, 107 COLUM. L. REV. 374, 376 (2007); Sullivan, Looking Past the Desert Palace Mirage, supra note 29, at 912-13.
259. Seiner, supra note 15, at 116; Sullivan, Looking Past the Desert Palace Mirage, supra note 29, at 993.
260. See supra Part I.
261. See Shoben, supra note 227, at 600.
262. See supra Part I.
263. See supra Part I.C.
264. E.g., Meritor Sav. Bank v. Vinson, 477 U.S. 57,72 (1986).
265. 524 U.S. 742, 754-65 (1998).
266. 524 U.S. 775, 790-808 (1998).
267. Scott A. Moss, Fighting Discrimination While Fighting Litigation: A Tale of Two Supreme Courts, 76 FORDHAM L. REV. 981, 987-88 (2007);
268. see also Stephen F. Befort & Sarah J. Gorajski, When Quitting Is Fitting: The Need for a Reformulated Sexual Harassment/Constructive Discharge
269. See Ellerth, 524 U.S. at 753-54; Faragher, 524 U.S. at 790.
270. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
271. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.
272. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807. The defense may not have achieved its intended effect, however. See Deborah L. Brake & Joanna L. Grossman, The Failure of Title VII as a Rights-Claiming System, 86 N.C. L. REV. 859, 885 (2008) ("Far from solving the problems created by Title VII's prompt complaint requirements, the added layer of internal processes creates additional risks for employees."); Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 537-38 (2001) ("[UJncridcal acceptance of internal dispute resolution processes legitimates purely formalistic solutions, and it will often leave underlying patterns and conditions unchanged.").
273. See Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 806-07;
274. Anne Lawton, The Emperor's New Clothes: How the Academy Deals with Sexual Harassment, 11 YALE J.L. & FEMINISM 75,108 (1999); Moss, supra note 237, at 987.
275. See, e.g., Joanna L. Grossman, The Culture of Compliance: The Final Triumph of Form over Substance in Sexual Harassment Law, 26 HARV. WOMEN'S L.J. 3, 4 n.2 (2003) ("In Kolstad v. American Dental Ass 'n, the Court supplemented the rules in Faragher and Ellerth by deciding that punitive damages could not be imposed against employers that have made good-faith efforts to comply with Title VII.");
276. Scott A. Moss & Peter H. Huang, How the New Economics Can Improve Employment Discrimination Law, and How Economics Can Survive the Demise of the 'Rational Actor,' 51 WM. & MARY L. REV. 183, 247 (2009) ("Although technically distinct, 'in practice' there is substantial overlap between what does and does not suffice for the FaragherlEllerth defense to harassment liability (based on an effective antiharassment program) and the Kolstad defense to punitive damages (based on good faith Title VII compliance)." (citing Bettina B. Plevan, Training and Other Techniques to Address Complaints of Harassment, 682 PLI/Lrr 675,755 (2002))).
277. See Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 533-34 (1999).
278. 42 U.S.C.§ 1981a(b)(1)(2006).
279. 527 U.S. 526 (1999).
280. Id. at 544-45.
281. Id.
282. Id. at 545.
283. See Susan Bisom-Rapp, An Ounce of Prevention Is Cure: Confrontingthe Employment Discrimination Law, 22 BERKELEY J. EMP. & LAB. L. 1, 15 (2001).
284. See supra Part IV.
285. See supra Part IV.
286. See supra Part I.
287. See supra Part IV.
288. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 806-07 (1998); supra Part IV.
289. Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 544 (1999) ("Holding employers liable for punitive damages when they engage in good faith efforts to comply with Title VII, however, is in some tension with the very principles underlying common law limitations on vicarious liability for punitive damages ⋯ ."); Ellerth, 524 U.S. at 754 ("We turn to principles of agency law, for the term 'employer' is defined under Title VII to include 'agents.'"); Faragher, 524 U.S. at 802 ("We therefore agree with Faragher that in implementing Title VII it makes sense to hold an employer vicariously liable for some tortious conduct of a supervisor made possible by abuse of his supervisory authority, and that the aided-by-agency-relation principle embodied in § 219(2)(d) of the Restatement provides an appropriate starting point for determining liability for the kind of harassment presented here.").
290. See, e.g., Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(c) (2006) ("A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error⋯.").
291. See, e.g., Kolstad, 527 U.S. at 537 (recognizing that there may be instances where an employer unlawfully discriminates "with the distinct belief that its discrimination is lawful").
292. See, e.g., 42 U.S.C. § 1981a (2006) (contrasting "unlawful intentional discrimination" with "an employment practice that is unlawful because of its disparate impact"); § 2000e-2(k)(2) (clarifying that the business-necessity defense for disparate-impact claims "may not be used as a defense against a claim of intentional discrimination"); supra Part I.
293. Ricci v. DeStefano, 129 S. Ct. 2658,2682 (2009) (Scalia, J., concurring).
294. Primus, The Future of Disparate Impact, supra note 9, at 1342-43.
295. Id. at 1344.
296. Id.
297. See Zimmer, supra note 9.
298. Id. at 9.
299. Id. at 24.
300. Id. at 28,30.
301. See generally Sullivan, End of the Line, supra note 160.
302. Id. at 212-13.
303. Id.
304. See supra Part V.
305. *2 (D. Conn. July 12, 2010), appeal docketed. No. 10-1975 (2d Cir. Sept. 27, 2010)