Publication Date

Spring 2011


[Excerpt] In Ricci v. DeStefano, the "New Haven Firefighters" case, whitefirefighters and one Hispanic firefighter sued the city of New Haven, Connecticut and city officials under Title VII. The plaintiffs claimed the city had committed intentional discrimination or disparate treatment against them when the city disregarded the results of promotion examinations that had an adverse effect on black and Hispanic applicants. The Supreme Court sustained the claim.

In his concurring opinion, Justice Scalia invited attorneys in subsequent cases to consider arguing that the disparate impact theory of employment discrimination is unconstitutional. He reasoned as follows:

• The Constitution prohibits the government from committing disparate treatment.

• Therefore, the government may not enact laws that requirean employer to commit disparate treatment.

• An employer who abandons a practice that has a disparate impact commits disparate treatment against the persons whom the practice favors because the employer seeks to increase the percentage of black applicants whom the practice favors.

• An employer who abandons a practice that has a disparate impact in order to avoid being sued by members of the class which the practice disfavors has been required by the government to commit disparate treatment.

Disparate impact is thus unconstitutional in Justice Scalia's view, but his reasoning reflects a misunderstanding of the theory of disparate impact and how it proves discrimination. When disparate impact is understood correctly, no constitutional issue arises.


Suggested Citation

Gold, M. E. (2011). Disparate impact is not unconstitutional [Electronic version]. Texas Journal on Civil Liberties & Civil Rights, 16(2), 171-187.

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