“Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?”
A very good question. I’m looking forward to (hopefully) seeing some intelligent discussions.
I don’t think I’m qualified to argue beyond the basics here, so, basically, this is what I think right now:
The city’s act of trying to avoid being sued for discrimination by minority groups was appropriately scolded. But I understand why they were concerned (I’m from Amherst, MA. Which isn’t that far away from New Haven. Remember the West Side Story issue, anyone?). Likely, they would’ve faced a suit by minority groups.
I would’ve liked to see that happen, rather than what ended up going down. Then, the minorities in question could’ve been given the opportunity to show that they were being discriminated against, that the examination was unfair to them, but fair to caucasians. I mean, I’m sure this is still a question that needs to be addressed, right? When some measure has a disparate-impact, whether or not the measure itself was designed to give one group an unfair advantage over another group should be examined.
The important point here is that according to the law, if a practice has disparate impact, it does not matter if this was intentional or incidental, which is why I think the SCOTUS got this one wrong. It essentially takes all the teeth out of the disparate impact clause, and takes us from a relatively bright line to a much murkier one. And the cynic in me fears that this will just open the door to more discrimination, as long as the people doing the discriminating can maintain plausible deniability.
It’s also important to note that the city didn’t explicitly deny the white firefighters (and one Hispanic!) promotions; they simply threw out the test as a qualification. They may still have qualified under whatever new standards were implemented.
The reason why the city threw out the test is of greater concern to me. Like I said, this should be interesting.