When it comes to criminal law, the question to be answered is what would a reasonable Scalia think?  After the Supreme Court’s 5-4 decision in Ricci v. DeStefano, the answer isn’t so clear under Title VII.  Did the Court just tacitly overrule Griggs v. Duke Power, or did they just set up an impossible standard for employers?

For those unfamiliar with discrimination law, here’s the dilemma.  There are two ways in which an employer can engage in discriminatory hiring practices, disparate treatment and disparate impact.  The former is affirmatively treating employees of protected classes differently, while the latter is using a facially neutral approach which has the unintended result of affecting a suspect class differently.  Following Griggs, both were equally forbidden by Title VII.

The problem arose from the fact that, in an effort to avoid discrimination by disparate impact, an employer would necessarily have to make race (for example) a consideration, which would implicate disparate treatment.  Until yesterday, this was permissible when it was done to remedy disparate impact.

By 5-4 (yes, another 5-4 decision), the Supremes decided to take a reasonably clear remedy and muddy it all up.  Now, an employer faced with apparent disparate impact is liable for discrimination for attempting to remedy it unless there is “a strong basis in evidence.”  What that means is anybody’s guess, but you can bet on one thing: An employer won’t know for sure until after it’s been sued and a decision has been reached.  In other words, the answer will only be known after an employer has been sued.  Great solution.  Can you imagine an employer coming into court saying, “but my lawyer said so?”  The courtroom will burst with uproarious laughter.

The Ricci case has been used as the touchstone for Sonia Sotomayor’s competence to be a Supreme.  Her qualifications aside, this was pure propaganda, and the reversal by the Supremes (did I mention it was 5-4?) proves absolutely nothing either way.  Aside from the fact that Sotomayor was one of three unanimous judges on the panel, and that the ruling was a basic deference decision given the district court’s lengthy opinion, the Supremes didn’t reject the 2d Circuit’s reasoning but changed the rules of the game.  They rejected their own decision in Griggs.  The Supreme can do that.  The Circuit cannot.

In an article for Forbes that proves that the keyboard is faster than the sword, Walter Olson recognizes that this is a “sued if you do, sued if you don’t” scenario.  While Walter’s view is clearly against reverse discrimination, it really doesn’t matter which side of the decision matches your politics.  The fact is that employers, if nothing else, need to know what is demanded of them in order to avoid violating Title VII.  Walter calls the Court’s decision a “middle ground.”  As any soldier will tell you, when you’re in the midst of battle, the one place you don’t want to get caught is in the middle ground.  That’s where both sides are shooting at you.

The problem is that after Sotomayor has been confirmed for the Court, as we all know she will be, the Ricci decision will remain behind to haunt us.  In dissent, Justice Ginsburg offered this admonition:  “The court’s order and opinion, I anticipate, will not have staying power.”  I have no doubt she’s right, since this decision is wholly unworkable, leaving employers screwed no matter what they do, no matter how hard they try to comply with Title VII. 

This is a Catch-22, with an answer coming only after the harm to all parties has been done.  Of course, how many decades it will take before some future Supreme Court disavows this foolishness has yet to be seen, but regardless of which side you are on in the reverse discrimination debate, there’s no doubt that you will come to hate this decision and demand that the Court clean up yet another mess made in the heat of political warfare.