Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities. A cryptic passage at the end of the Supreme Court's recent decision in Ricci v. DeStefano may signal a sea change for this disparate impact doctrine. Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination. We show that the opinion also can be read to suggest a new affirmative defense for employers facing claims of disparate impact. Before Ricci, disparate impact was a purely no-fault doctrine. An employer was liable if its employment practice had an unlawful disparate impact, even if the employer did not know about the impact or did not intend to subject its employees to an unlawful practice. The focus of litigation was not on the employer's state of mind, but rather on the aspects of the employment practice. If the defense suggested by a careful reading of Ricci is taken seriously, however, a broad category of disparate-impact cases may turn on what the employer knew when it took the challenged action. If the employer uncovered no reason to think that the practice would have an unlawful disparate impact, it may be immune from liability for its past actions. This would be a dramatic development, and if accepted it would open up an entirely new direction for this area of law. This Article parses the language of Ricci to show how it points to the new affirmative defense. We explain the significance such a defense would have for employers, employees, and disparate-impact theory more generally. We also examine and critique alternative readings of Ricci that do not entail the new defense discussed here. Ultimately, we conclude that while Ricci may foreshadow a new view of disparate impact, the Supreme Court's confusing decision can be given varying interpretations that will take further litigation to sort out.
Joseph Seiner, Does Ricci Herald a New Disparate Impact?, 90 B.U. L. Rev. 2181 (2010)