Ricci v. Destefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable

Abstract:     
Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to perpetuate . . . the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is most implicated.”

The anti-classification principle instead sees equal protection as invalidating all distinctions based on race. Whether the classification is malicious or benign, or whether an individual belongs to an historical or contemporary dominant or subordinate race, does not matter. All such classifications are invalid.

Ricci (or at least the majority five justices) rejects the anti-subordination approach in favor of adopting the principle of anti-classification.

One would think that such a change in the law would further the cause of ending discrimination both under Title VII and the Equal Protection Clause of the Fourteenth Amendment, but, paradoxically, it may utterly defeat that cause.

Number of Pages in PDF File: 49

Keywords: equal protection, disparate impact, disparate treatment, Supreme Court, equal employment

JEL Classification: J70, J71, J78, J79, K39

working papers series