The Wall Street Journal doesn't understand how a federal anti-discrimination law that protects firefighters of color actually works, but that didn't stop one of its editorial board members from complaining about it.
On March 18, New York City Mayor Bill de Blasio announced that the city had settled a twelve-year lawsuit with a group of black firefighters who alleged that the entrance exams the department used resulted in impermissible racial discrimination that was unrelated to the skills necessary for the job. The group that filed the suit argued that the entrance exam had an unjustified disparate impact on black and Hispanic firefighters, a legal doctrine that has been codified in federal employment discrimination law and upheld repeatedly by the Supreme Court. In NYC, according to The Associated Press, the discriminatory effect occurred because "black firefighters have never made up more than 4 percent of the department's total," even though "more than half of residents identify with a racial minority group."
But the Wall Street Journal, whose editorial board is clearly no great fan of disparate impact litigation, was unimpressed by the numbers. In a recent post, the WSJ's Jason Riley argued that Mayor de Blasio's support of the settlement was misplaced since, despite the fact that the federal courts found the exams had an illegal disparate impact under Title VII of the Civil Rights Act, "the city might have won" the case. Riley proceeded to label the long-standing legal doctrine prohibiting the city's illegal disparate impact on firefighters of color as "nonsense" (emphasis added):
"I think the numbers speak for themselves," said New York Mayor Bill de Blasio in announcing that the city had settled a discrimination lawsuit against the fire department. The mayor was suggesting that the FDNY's written exam is biased because blacks and Hispanics pass it at lower rates than whites.
But the numbers don't speak for themselves. Intent matters. Racially disparate outcomes alone are not proof of discrimination, yet advocates of such nonsense continue to exploit our legal system. "No speck of evidence is required from those who implicitly assume that employee composition would be similar to population composition, in the absence of discrimination," writes Thomas Sowell in "Intellectuals and Race." "Moreover, not one flesh-and-blood human being who even claims to have been discriminated against is necessary for 'disparate impact' cases to go forward in a costly legal process."
Riley's description of disparate impact is just plain wrong. Under Title VII, a plaintiff alleging disparate impact does not have to make a showing of intent. Instead, a plaintiff has to show -- as the black firefighters alleged -- that "a particular employment practice ... causes a disparate impact on the basis of race, color, religion, sex, or national origin" and that the challenged practice is not required for the position or is not necessary for the business to function. The employers can rebut this evidence at multiple stages, arguing that the discriminatory practice is in fact essential for the job. Plaintiffs usually show disparate impact through unexplained statistical patterns in hiring or promotions at work -- they do not need to show that their boss harbors a racially discriminatory intent.
This is decades-old precedent, that has been repeatedly upheld.
The WSJ may have a problem with this or perhaps isn't aware of the case law, but asserting disparate impact is hardly an example of "exploit[ing] our legal system." Even conservative Supreme Court Justice Antonin Scalia rejects this characterization of invalidity. In a recent Title VII disparate impact case that involved Chicago firefighters, Scalia acknowledged:
Our charge is to give effect to the law Congress enacted. By enacting [Title VII disparate impact provisions], Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer's motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix.
For some plaintiffs, disparate impact is the best chance at justice since most racists don't helpfully leave paper trails of their "intent." If Riley doesn't like it, maybe he should follow Scalia's advice and more honestly advocate for the partial repeal of the Civil Rights Act.