Mickey Kaus wonders whether employers after Ricci are caught in a tough spot when they juggle the risks of a disparate treatment lawsuit (e.g., throw out the test that minorities fail, thereby penalizing whites) and a disparate impact lawsuit (from aggrieved minorities if they stick with test results). The real answer, as Justice Scalia suggests, is to revisit the very constitutionality of the entire disparate impact jurisprudence. But in the short run there are two answers.
First, other than providing sanctions and instituting some “loser pay” reforms, employers will just have to buck up and defend nuisance suits when they refuse to discriminate by putting their finger on the scale to favor minorities with boisterous special interest groups behind them. Employers in the 1960’s also complained that customers wouldn’t frequent integrated restaurants. But we don’t buy the whole “people will make a fuss” defense. We have rejected in “customer preference” cases for years the notion that overt discrimination is permitted because the economic consequences of avoiding discrimination may be very steep.
Second, employers can and do “validate” these tests and provide themselves with more than enough data with which to defend the disparate impact suits. Again they still might be sued, but if they construct appropriate tests and defend the results, they shouldn’t face a “damned if they do, damned if they don’t” dilemma.
But Kaus is right that employers face, not only on this front but from a myriad of potential statutory and common law claims, a legal minefield in hiring, firing, and promoting employees. We should be concerned about the adverse impact — on the economy as a whole and on those employees lacking civil rights advocates to cajole employers on their behalf. The ultimate solution is both to revisit disparate impact jurisprudence and reform the civil litigation rules. Oh — and shining a bright light on the intimidation by the likes of PRLDEF, MALDEF, La Raza, and the NAACP is a useful endeavor as well. If employers actually do fear being caught between contradictory discriminatory claims, they would be wise to do their utmost to expose and combat the kind of racial hucksterism that Justice Alito so aptly described in Ricci.