Ricci v. DeStefano (2009)

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. It is unlawful under Title VII for an employer to hire, refuse to hire, or otherwise discriminate against any individual with regard to compensation, terms, conditions, or privileges of employment because of that person's race, color, sex, or national origin.

Originally, Title VII was viewed as prohibiting what is called “disparate treatment,” treating an employee or applicant less favorably because of his or her race, color, sex, or national origin. Title VII would clearly prohibit an employer having a policy that demonstrates a preference for, or a bias against, someone because of his or her race, color, sex, or national origin. For example, an employer cannot have a policy that says only whites will be hired.

In 1971, in the case of Griggs v. Duke Power, the Supreme Court interpreted Title VII as also prohibiting employer practices that, although facially neutral, had a discriminatory impact. In some situations, an employer may have a policy that makes no mention of race, color, sex, or [Page 1840]national origin, but in application of the policy, persons falling within one or more of the protected classes may be effectively precluded from consideration. For example, minority candidates as a group are less likely to have higher academic credentials; automatically disqualifying an applicant who does not have a bachelor's degree for consideration for a job would mean minority candidates would disproportionately be precluded from consideration for the job.

This kind of precluded discrimination is known as “disparate impact.” If an employer does engage in behavior that results in a disparate impact, it will not violate Title VII if the employer can prove the action was job related.

However, if the complaining employee or applicant can show the employer could have used another practice that was just as effective that did not result in a discriminatory effect, then the employer would be still be liable. So, a disparate impact case is largely based on an initial statistical disparity and then an inquiry into whether the practice is warranted, and if so, whether there is a better way to achieve the same objective that does not result in discrimination.

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