Friday, May 29, 2009

Disparate impact

With Sonia Sotomayor's nomination to the US Supreme Court liberals have been defending her Circuit Court of Appeals vote in the Ricci case . For example this Slate article by a Stanford law professor, Richard Thompson Ford. Bearing in mind that I am not a lawyer I nonetheless believe this article is disingenuous at best. Ford states:

... the city rejected the firefighter exam because the test violated Title VII, ...

Actually whether the test violated Title 7 is at issue with the city claiming it feared that it did. Ford later states:

... An employer can also discriminate by using a selection process that has a disparate impact—in other words, that screens out a particular group for no good reason. ...

This is just wrong. A test has a disparate impact if it screens out a particular group more than other groups. It is nonetheless legal if it does so for a good (job related) reason. This might seem a subtle distinction but it appears to me that Ford (like some other liberals) is trying to obscure that for the test to be illegal it must have a disparate impact and it must also be unrelated to job performance. The second point has not been established and flat statements that the test was illegal are misleading.

See here for a summary of disparate impact law.


  1. I am afraid this issue lies below the noise level, or goes beyond the attention span of most people whose indifference to much more significant issues raised during the election race resulted in the main cause of all of this - the election result itself. This country is going to continue heading left and decisions like this one will continue playing to liberal hands. That liberals will try obscure facts like the one you are referring to is just a tiny crumb. The main problem is the country is stuck with the result and there will be likely many more wrong decisions and more damage done before it's over. Damage potentially irreparable, such as instituting government-run health care.

  2. I considered that Due Process was ignored in that case. If the city had a conflict with federal law, than that conflict should be resolved directly between the city and the federal prosecutor. Until that process is complete, Due Process is retained for the rejected firemen.

    There was no Due Process finding that the test violated federal law, just an untested assumption.