Of Visible Race-Consciousness and Institutional Role: Equal Protection and Disparate Impact after Ricci and Inclusive Communities
Title VII of the Civil Rights Act After 50 Years: Proceedings of the New York University 67th Annual Conference on Labor (LexisNexis Publishing 2015 Forthcoming)
21 Pages Posted: 21 Jul 2015 Last revised: 25 Sep 2015
Date Written: July 20, 2015
When Ricci v. DeStefano was decided in 2009, I identified three possible reading of that case, one of which would be fatal to statutory disparate impact standards and two of which would not. Inclusive Communities strongly suggests that the fatal reading will not prevail. The two readings that remain viable are the "institutional reading," on which Ricci restricts the freedom of employers to remedy their own disparate-impact problems without similarly restricting the ability of courts to order disparate-impact remedies, and the "visibility reading," on which the key question about any given disparate-impact remedy is the degree to which its race-conscious aspect is publicly visible. Inclusive Communities seems to reinforce the visibility reading and to suggest that visibility will be an important element of the Court's forthcoming decision in Fisher v. Texas.
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