Disparate Impact Is Not Unconstitutional

[Excerpt] In Ricci v. DeStefano, the New Haven Firefighters case, whitefirefighters and one Hispanic firefighter sued the city of New Haven, Connecticut and city officials under Title VII. The plaintiffs claimed the city had committed intentional discrimination or disparate treatment against them when the city disregarded the results of promotion examinations that had an adverse effect on black and Hispanic applicants. The Supreme Court sustained the claim. In his concurring opinion, Justice Scalia invited attorneys in subsequent cases to consider arguing that the disparate impact theory of employment discrimination is unconstitutional. He reasoned as follows: • The Constitution prohibits the government from committing disparate treatment. • Therefore, the government may not enact laws that requirean employer to commit disparate treatment. • An employer who abandons a practice that has a disparate impact commits disparate treatment against the persons whom the practice favors because the employer seeks to increase the percentage of black applicants whom the practice favors. • An employer who abandons a practice that has a disparate impact in order to avoid being sued by members of the class which the practice disfavors has been required by the government to commit disparate treatment. Disparate impact is thus unconstitutional in Justice Scalia\u27s view, but his reasoning reflects a misunderstanding of the theory of disparate impact and how it proves discrimination. When disparate impact is understood correctly, no constitutional issue arises

Semantic Cover for Age Discrimination: Twilight of the ADEA

In 1967, Congress recognized that the number of displaced older people in the workforce was growing, due in large part to the problems older people were encountering in finding new jobs once displaced from a job of many years. In these times of corporate downsizing, older workers are particularly vulnerable to bearing the brunt of workforce reductions due to the fact that they are often paid a little more because they have been with the company a little longer. As a result, since 1967 older workers have been protected from discrimination based on their age by the Age Discrimination in Employment Act (ADEA). From the time that the ADEA became effective until recently, if an employer used criteria such as high salary, seniority, tenure, or experience to make unfavorable employment decisions, courts either found that the employer was discriminating per se or required the employer to justify the use of such factors that inevitably correlate with age. Now, however, a confluence of Supreme Court decisions, appellate court decisions, and legislative action and inaction allows employers to make decisions based on age-correlated factors with virtual impunity. Today, courts frequently decide age discrimination cases involving the admitted use of age-correlated factors, which formerly were sure winners for the plaintiff, on summary judgment in favor of the defendant