Client Alert

Divided Supreme Court Tackles Reverse Discrimination

July 09, 2009

Neal D. Mollen, Kenneth W. Gage and Mitch Mosvick

The Supreme Court ended its 2008 Term by holding that, at least in some contexts, employers violate Title VII when they engage in race-conscious decision-making to address statistical workforce imbalances unless they can demonstrate a strong basis in evidence that failing to do so will result in disparate impact liability. Ricci v. DeStefano, ___ U.S. ____, 2009 WL 1835138 (U.S., June 29, 2009). The Ricci decision could force employers to re-evaluate the way they approach statistical anomalies that can arise in reductions in force or from other employment decision-making processes, and may compel employers to consider formal validation studies for a wide variety of decision-making processes that previously were less formally structured.

The decisions impact on business will depend, of course, on whether it has staying power; Justice Ginsburg, in dissent, predicted it would not. Underscoring her prediction, Senator Patrick Leahy (D. Vt.), chair of the Senate Judiciary Committee, announced just hours after the decision was announced that it interprets the critical protections of Title VII in a way never intended by Congress. Undoubtedly, Congress will look closely at addressing the Ricci decision with corrective legislation.

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