The End of At-Will Employment? The ‘Color-Blind’ Standard of Intent to Discriminate

Source: Michael J. Zimmer, Loyola University Chicago School of Law Research Paper No. 2015-009, April 16, 2015

From the abstract:
In Ricci v. DeStefano, the New Haven firefighters case, the Supreme Court decided as a matter of law that New Haven had committed intentional disparate treatment discrimination against some of the white testtakers when it did not use the results of a promotion test because its use would have resulted in an adverse effect on black and Latino testtakers. A careful reading of Ricci establishes how it has a significant potential impact on all disparate treatment cases. Because liability was established simply on the fact that New Haven knew the racial consequences of deciding not to use the test scores, the Court has logically extended what amounts to a “color-blind” standard from the Court’s earlier decisions challenging affirmative action plans to Title VII disparate treatment cases. This article develops how this “color-blind” standard applies as an easy way to establish the intent to discriminate element in all disparate treatment cases, whether in “reverse” discrimination cases like Ricci or in cases brought by members of racial minorities. With such an easy to prove standard for proving what had been the challenging intent to discriminate element in disparate treatment cases, it has become relatively easy for plaintiffs to prove discrimination whenever the employer knows the race of the affected workers. This reduces significantly the significance of the close to universal state law that presumes employment is at-will.

This view of Ricci appears quite surprising because the decision was supported by the conservative wing of the Court. Nevertheless, it would be a return to the separate-but-equal standard of Plessy v. Ferguson if the Court failed to extend its Ricci analysis to disparate treatment claims of race discrimination brought by members of racial minority groups if it continued to view Ricci as good law. Even as conservative as the present Court is, that should be an unthinkable result. Further, reading Ricci as broadening the use of disparate treatment discrimination is consistent with the approach that the Court, through opinions by Justice Kennedy, has developed the earlier anti-animus jurisprudence to attack laws that discriminate based on sexual orientation. Finally, the application of the Ricci approach to proving intent to discriminate is justified since employment discrimination persists despite 50 years of application of Title VII. Given the recent events in Ferguson, Missouri, and elsewhere, that persistence flows from the broad existence and effect of implicit bias.