The Obama administration’s brief (with lawyers on it not only from the Justice Department but also from the Labor Department and Equal Employment Opportunity Commission) argues that the City should be permitted to throw out the results of the test so long as it was motivated by a “reasonable” belief that using the results “may” have subjected it to liability under Section 703(k) of Title VII of the 1964 Civil Rights Act. Section 703(k) makes it illegal for employers to use selection devices that have a “disparate impact” on racial groups unless those test are “job related for the position in question and consistent with business necessity.” So long as an employer has this belief, says the brief, there is no violation of Title VII or the Constitution. But, concludes the brief, it’s not clear that the lower courts looked carefully enough into whether this belief was reasonable, nor indeed whether this was the real reason for the city’s action at all, and so it asks the Court to reverse the decision and remand for further proceedings.
While it could have been worse, there are three problems with the administration’s brief. The first is that it does not acknowledge that this is most charitably what is called a “mixed motives” case and that, if it is, the city is going to be liable to at least some degree. There is very strong evidence that the city was motivated in part, if not entirely, by political rather than legal reasons. Under Section 703(m) of Title VII, that’s enough to establish liability.
Second, mere “reasonable” belief that not throwing out the test results “may” result in Title VII liability is just not a tough enough standard for what is clearly the city’s disparate treatment of individuals based on their skin color. The central focus of Title VII is on preventing employers from making employment decisions with an eye on favoring some and disfavoring others based on race (and sex, religion, and national origin). Clearly this is what happened here. For that to be excused, the city must have a belief that is not just “reasonable” that it “may” be in violation of another part of the statute; it must be able to show the court that it indeed would be liable. The test proposed by the Obama administration is too easy.
Third, the part of the brief addressing the Constitution is even worse. The administration denies that choosing selection devices with an eye on the racial bottom line even triggers “strict scrutiny” under the Equal Protection Clause. It then argues that, in any event, such discrimination would be permissible so long as the city “has a strong basis in evidence for believing that the decision is reasonably necessary to comply with Title VII.” Even if the desire to comply with a statute can trump otherwise unconstitutional behavior, surely the employer must show, again, that it would be liable under the statute, not just that it “reasonably” believed that it might be.
For a rundown of the case see our previous post here