By Mike Dorf
Last week's oral argument in Wal-Mart Stores, Inc. v. Dukes was officially about whether the case against Wal-Mart for sex discrimination in violation of Title VII satisfies the legal requirements set forth in Federal Rule of Civil Procedure 23 for a class action. But evident just below the surface is an ambiguity in anti-discrimination law.
As late as the early 1970s it was possible to argue that the Constitution forbade government actors from taking actions that had a disparate impact on a racial minority or other protected group, regardless of whether that disparate impact was intended. Then the Court held that the Constitution only forbids intentional discrimination. Disparate impact can be relevant to proving intentional discrimination but is not, standing alone, unconstitutional. As the Court said in the leading sex discrimination case, it is not sufficient for a plaintiff to show that a defendant took the measures it did in spite of the disparate impact; a successful case must establish that the defendant took those measures because of the disparate impact.
Although disparate impact claims have thus long been inadequate to establish a constitutional violation, the statutory picture is somewhat different. In 1971, in Griggs v. Duke Power, the Supreme Court unanimously recognized that a plaintiff's showing of disparate impact standing alone is enough to establish liability--unless the defendant rebuts the inference of discrimination that the disparate impact showing creates. Griggs was codified with some modifications in the 1991 Civil Rights Act (after a 1989 decision had cut back on it somewhat), but it was never fully settled whether the statutory protection was ultimately only against intentional discrimination--with a showing of disparate impact playing a more substantial role in establishing the plaintiff's case in a statutory claim than in a constitutional claim--or whether the statute provided employees with a substantive entitlement to be judged only by tests that either have no disparate impact or, if they have one, are necessary to the job at issue.
This issue was indirectly in play two terms ago in Ricci v. DeStefano (the New Haven firefighter case) and it is in play again in the Wal-Mart case. Wal-Mart argues that no plaintiff class action can be certified because there is no allegation of a policy of intentional discrimination emanating from corporate HQ. The plaintiffs say that the policy is the decision by HQ to decentralize personnel decisions without providing for sufficient guidance, thus effectively ensuring subjective decisions that give vent to tacit biases.
If we understand the substance of Title VII's disparate impact prohibition as simply streamlining matters of proof of intentional discrimination, then Wal-Mart probably wins. There is no HQ-level policy of discrimination and it's hard to imagine that Wal-Mart adopted its policy of decentralized subjective personnel decisions for the purpose of ensuring that the discretion would be employed in a way that would have a disparate impact on women. That is to say, Wal-Mart almost certainly maintains its policy of decentralization/subjectivity in spite of, rather than because of its disparate impact. But if we understand the substance of Title VII's disparate impact prohibition as targeting unjustified disparate impact for its own sake, then the plaintiffs' case looks pretty good.
To my mind, Title VII's disparate impact standard has always been best understood as targeting disparate impact for its own sake, but I acknowledge that the cases and the statute are not entirely clear about this. It's also clear from Ricci (and other cases) that the Court's most conservative members don't like disparate impact claims. (Justice Scalia even suggested in Ricci that the prohibition of disparate impact may itself be unconstitutional as a denial of equal protection.) Although the issue in Wal-Mart is submerged under a procedural question about class certification, the case could nonetheless provide some further hints at how the Court would ultimately resolve this ambiguity in anti-discrimination law.