The Court’s ruling makes life more difficult for employers trapped between the Scylla of Title VII disparate impact liability and the Charybdis of “disparate treatment” suits by white employees (“disparate treatment” suits are cases alleging traditional intentional racial discrimination). If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities. But if the business adopts race-conscious measures to try to shield itself from liability (e.g. – by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to “disparate treatment” lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.
As I mentioned earlier, the irony in the Ricci ruling is that it more or less makes it illegal to either prevent discrimination or remedy it, in all but a handful of cases. The major failing of the court comes not only from its incorrect decision but also from the vaguness in its decision. Justice Kennedy in the majority opinion states that the disparate impact clause of Title VII, can only be invoked in a narrow set of circumstances where there is over whelming evidence that a particularly minority group disporportionately experienced a negative outcome a. But considering that ZERO African American’s qualified for promotion and the stated evidence that a fair amount of White candidates recieved advance tips and assistance, its hard to imagine any case meeting this vague standard.