Commentary Magazine


Contentions

Re: Frank Ricci

I would note that Roger Clegg’s Center for Equal Opportunity made this argument to the Court in its amicus brief:

Thus, even if “avoiding disparate impact liability” were the sole motivation for defendants’ decision here[ to discard Ricci’s test results]. . . 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.

[. . .]

Any “avoiding disparate impact liability” defense recognized here should be similarly limited. That is, to be deemed a “nondiscriminatory 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.

The Court agreed with this argument.

One other note: not even the dissenters would have affirmed the Second Circuit’s “decision.” In that regard the Court repudiated not merely the decision but the jurisprudence — unanimously — of the judge who may be a new colleague.



Join the discussion…

Are you a subscriber? Log in to comment »

Not a subscriber? Join the discussion today, subscribe to Commentary »





Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.