Ricci v. DeStefano: Supreme Court Requires Employers to Show a "Strong-Basis-In-Evidence" That It Will Suffer Disparate Impact Liability

One much-anticipated decision in the employment law arena handed down on June 29 was Ricci, et al. v. DeStefano, et al. (07-1428 and 08-328), which I previously blogged about here.

From the SCOTUS LiveBlog:

10:01 a.m. Ricci result: Kennedy finds a violation of Title VII. An outright reversal 5-4.
10:02 a.m. Ricci is decided 5-4 on ideological lines. The middle ground suggestion of remanding for further proceedings is rejected.


Text of the full decision is here and a practical discussion written by my colleague is here. Attempting to reconcile the inevitable tension between disparate treatment and disparate impact, Justice Kennedy adopts the "strong-basis-in-evidence" standard. Writing for the Court (5-4) Kennedy noted: "We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. . . . Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them." Reconciling the two, the Court held: "[U]nder Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action."

Side Bar: While cameras are still prohibited from the hallowed chambers of the U.S. Supreme Court, it has wholly embraced the blogosphere with LiveBlog feeds on the Court's release of decisions and other matters.
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