“[T]he war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how – and on what terms – to make peace between them.” This Article addresses Justice Scalia’s premonition in Ricci v. DeStefano by providing an analysis of how that war may be waged and whether peace can be made between Title VII’s disparate impact provision and the Equal Protection Clause. Ricci involved a challenge to the City of New Haven’s decision to void the test results of an examination required for promotion within the City’s fire department. The test adversely affected African-American firefighters, who passed the examination at a lower rate than Caucasian firefighters. Because of the disproportionate number of African-American firefighters who failed the test, the City feared that it would be subject to discrimination lawsuits under the disparate impact provision of Title VII of the Civil Rights Act of 1964. Disparate impact focuses on the results of employment decisions and imposes liability when employment practices cause a disparate impact on the basis of race or any other protected class. “The City was faced with a prima facie case of disparate-impact liability” because the pass rates for the Hispanic and African-American test takers fell below the 80% rule. Consequently, the City refused to certify the tests and thereby voided the results. This Article seeks to answer the constitutional question left unresolved in Ricci – whether Title VII’s disparate impact provision violates the Equal Protection Clause by requiring employers to consider race in their employment practices. This Article seeks to test Title VII’s disparate impact provision under strict scrutiny to determine if it can survive an Equal Protection challenge. This Article’s focus is to provide an extensive search for a compelling purpose that may justify the racial classifications that are required under Title VII’s disparate impact provision. Operating on the assumption that the disparate impact provision implicates racial classifications, this Article examines six rationales that may be asserted as compelling interests to defend the provision against an Equal Protection challenge: (1) remedying past discrimination; (2) smoking out discrimination (intentional or unconscious); (3) obtaining the benefits of diversity; (4) providing role models; (5) satisfying an operational need; and (6) providing equal employment opportunity by removing barriers. Finally, this Article anticipates the attacks that may be lodged against those defenses.
Eang L. Ngov, War and Peace between Title VII's Disparate Impact Provision and the Equal Protection Clause: Battling for a Compelling Interest, 42 Loy. U. Chi. L.J. 1 (2010)