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Race, Discrimination, Formalism, Color, Employment, Title VII, Disparate Treatment, Disparate Impact


The United States has a long and somewhat conflicted history of espousing egalitarian values and yet tolerating a certain level of subordination of particular groups to a greater or lesser extent at the same time. Like many countries, it struggles with reconciling the goals of equality, pluralism, and liberty, and the balance has been struck differently at different times. In the current wave of such efforts, the Supreme Court is marking an increasingly formalist approach to the question of discrimination, while Congress appears to be pushing a slightly more substantive approach to discrimination. This short paper analyzes the Court’s recent decision in Ricci v. DeStefano, which appears to fall into the formalist category, but actually may not. The decision may not have been color blind or formalist at all. The City’s explanation that it rejected the results of the promotional test because it feared a disparate impact suit was not race per se. Moreover, applicants who would have been promoted had the results been used included applicants from all backgrounds, and the pool of those who would get a second chance at promotion if the list were discarded also included members from all backgrounds. Thus, there was no formal separation on the basis of race. This and other doctrinal problems created by the decision are analyzed.