civil rights/con law question

Tue Feb 20 03:43:24 PST 2007

The unstated assumption of Professor Rosenthal's post is that only 
minorities can avail themselves of the disparate impact theory. I spent a 
lot of pages a couple of years ago,  98 NW. U. L. Rev. 1505 (2004), 
arguing that the equal protection problem could be solved by allowing 
whites or males to use the theory, and that there is nothing in the 
language of the 1991 Civil Rights Act or its legislative history that 
would prevent that conclusion. The implications of this would be 
eye-opening, and acceptance of the theory would, if taken seriously, 
intrude on employer prerogatives but there would be no hook to claim the 
theory was unconstitutional.  

Further, it can't be a problem that "the remedy for a disparate impact 
violation is race-based -- people receive promotions or checks based on 
their race." Checks and promotions are also issued in systemic disparate 
treatment cases on a race basis to successful African-American plaintiffs 
(and to successful white plaintiffs in reverse discrimination suits), but 
so long as it's race discrimination that's the cause of action that's 
inevitable.

In any event, a successful disparate impact challenge will typically 
eliminate the practice prospectively for everyone -- not merely for 
individual/class that sued. 

<<<Hibbs upheld a gender-neutral law.  Title VII's disparate impact test, 
however, is not race neutral, and the remedy for a disparate impact 
violation is race-based -- people receive promotions or checks based on 
their race....>>>
__________________________________________________________________________
Charles A. Sullivan
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102(973) 642-8870

SSRN Page
Seton Hall Law School Faculty Page
Employment Discrimination Casebook Page

"Rosenthal, Lawrence" <rosentha at chapman.edu> 
02/20/2007 05:19 AM

To
"Charles Sullivan" <sullivch at shu.edu>, "Samuel Bagenstos" 
<srbagenstos at wulaw.wustl.edu>
cc
<conlawprof-bounces at lists.ucla.edu>, <conlawprof at lists.ucla.edu>
Subject
RE: civil rights/con law question

 Indeed, most disparate impact class actions are brought on behalf of 
classes defined in expressly racial terms.  Adarand holds that section 5 
of the Fourteenth Amendment gives Congress no power to engage in 
race-based affirmative action beyond that of state and local governments. 
Thus, I have my doubts about whether the disparate impact test, at least 
to the extent that it permits race-based remedies in the absence of a 
constitutional violation, is going to survive Adarand.

Richard Primus wrote an article that appeared in the Harvard Law Review a 
few years ago.  Whatever its virtues as scholarship, that article (which 
argued that disparate impact was constitutional) does not appear to me to 
reflect the views of a majority of the current Court.

Larry Rosenthal
Chapman University School of Law
--------------------------------------------------

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Charles Sullivan
Sent: Mon 2/19/2007 9:04 AM
To: Samuel Bagenstos
Cc: conlawprof-bounces at lists.ucla.edu; conlawprof at lists.ucla.edu
Subject: RE: civil rights/con law question

The Supreme Court long ago held that Title VII was a valid exercise of 
section 5 power, but it is certainly arguable that this should be 
deconstructed in terms of various applications of Title VII. Sam is 
correct that Hibbs suggests that Congress could go beyond the equal 
protection clause in dealing with sex discrimination, and perhaps that 
would justify applying disparate impact theory more broadly than would the 
constitution.

But it wouldn't surprise me if the courts sliced and diced particular 
applications of Title VII. The only example I know to date is Holmes v. 
Marion County, 349 F.3d 914 (7th Cir. 2003), where the court rejected a 
private suit against the state for failure to satisfy Title VII"s duty to 
reasonably accommodate religion, obviously a duty that goes beyond what 
the Court has held the first amendment imposes. The court did stress that 
religious discrimination has a very different history than race 
discrimination, but the point is that the Seventh Circuit was breaking 
down the statute into component parts rather than viewing it holistically 
as an exercise of section 5 power.

__________________________________________________________________________
Charles A. Sullivan
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102(973) 642-8870
SSRN Page <http://www.ssrn.com/>
Seton Hall Law School Faculty Page <
http://law.shu.edu/faculty/fulltime_faculty/sullivch/sullivan.html>
Employment Discrimination Casebook Page <
http://law.shu.edu/discrimination/>

"Samuel Bagenstos" <srbagenstos at wulaw.wustl.edu>
Sent by: conlawprof-bounces at lists.ucla.edu

02/19/2007 10:00 AM

To
"Malla Pollack" <mpollack at ajsl.us>, <conlawprof at lists.ucla.edu>
cc
Subject
RE: civil rights/con law question

Hibbs seemed to make that less likely - that's Robert Post's argument in 
his Harvard Foreword.  And I think all the lower-court cases uphold Title 
VII disparate impact under Boerne.  In any event, nobody really knows what 
the standard is for disparate impact after the Civil Rights Act of 1991, 
so it would be easy enough for a Court that wanted to to destroy disparate 
impact without ever invalidating it on constitutional grounds.

Samuel R. Bagenstos

Professor of Law

WashingtonUniversityLawSchool

One Brookings Drive, Box 1120

St. Louis, MO  63130

(314) 935-9097 (voice)

(314) 935-5356 (fax)

Personal web page:  http://law.wustl.edu/Faculty/index.asp?id=198

Disability law blog:  http://disabilitylaw.blogspot.com/

________________________________

From:conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Malla Pollack
Sent: Monday, February 19, 2007 8:47 AM
To: conlawprof at lists.ucla.edu
Subject: civil rights/con law question

A basic question for those of you who do civil rights employment law.  Any 
movement towards killing the higher standard of Title VII (if disparate 
impact, employer needs to show business necessity) in light of the 
Rehnquist court's limit on Congress imposing "remedial" action on the 
states?  The Title VII standard has not been required by the Constitution 
itself since Washingtonv Davis(1976).

Malla Pollack

Professor, American Justice School of Law

mpollack at ajsl.us <mailto:mpollack at ajsl.us>

270-744-3300 x 28

articles http://works.bepress.com/malla_pollack/ <
http://works.bepress.com/malla_pollack/>

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