487 U. S. 977
June 29, 1988
A black bank employee was passed over for promotions on four separate occasions. She eventually launched a wide-ranging class action lawsuit, alleging that the bank discriminated not just against her, but against other blacks. Promotion decisions were made based on subjective criteria, and lower courts held that decisions based on subjective criteria were not amenable to a disparate impact suit. Instead, only objective criteria like tests or educational requirements could be challenged as discriminatory because of their disparate impact on minorities.
Unanimously, the Court held that subjective criteria could be attacked in a disparate impact suit (Kennedy did not participate). O’Connor stressed that it would frustrate the goals of the Civil Rights Act if only objective criteria counted, because that could leave a large swath of discriminatory practices beyond remedy. If plaintiffs could show that a minority group was disadvantaged in promotions through subjective means, there would be a prima facie case of discrimination.
In a portion joined by Rehnquist, White, and Scalia, O’Connor noted that this new standard would have to be carefully guided, or else employers would probably resort to quotas just to protect themselves from potential suits. She noted that the plaintiff would always have the ultimate burden of proof in disparate impact cases, that employers would be able to attack bare statistics as not persuasive enough, and that employers would have to be able to argue that its subjective criteria were geared toward legitimate business purposes.
Blackmun, joined by Brennan and Marshall, did not like O’Connor’s attempt to cabin the reach of the ruling. He said that, based on precedents, the employer would shoulder the burden of proof once the plaintiff made a prima facie case. And he thought O’Connor’s solicitude to an employer’s plea of legitimate business motivation was also unfounded in prior disparate impact precedents. Blackmun felt that a very robust disparate impact standard was necessary to stop employers from hiding discrimination behind a smokescreen of subjective evaluation. Stevens concurred in judgment. He agreed with the central point that subjective criteria could be attacked, but declined to spell out the implications as all the other Justices had tried to do.
Disparate impact theory is a hopelessly manipulable stratagem. It’s easy for plaintiffs to prove, and almost impossible for employers to conclusively disprove. It’s a great scheme if you’re an unscrupulous trial lawyer looking to make some quick bucks. In college, I had a friend whose dad had to leave a business because of one of these BS disparate impact suits. As she explained to me, her dad actually hired more women than men overall, and even promoted more women than men overall. But because the percentage of women who got promoted was smaller than the percentage of men who got promoted, his business was accused of sex discrimination, and he knew that fighting the suit was a losing battle. Until there’s a way to cut down on cynical manipulation of the system like this, I have no use for disparate impact claims.