The Breakfast Table

Are Sotomayor’s Critics Stuck?

Walter, you are so obviously correct that this decision renders completely implausible any criticism of the 2nd Circuit panel—yet folks out there are sure trying. The majority not only says the 2nd Circuit was wrong, it also says that the Equal Employment Opportunity Commission and the several other federal agencies that have long used the “four-fifths rule” to determine when a job test had a burden-shifting disparate impact were wrong. Under that rule, a test that members of one racial group passed at less than 80 percent the rate of members of another racial group was prima facie discriminatory (the initial showing the plaintiff has to make). The burden in any resulting litigation would then shift to the employer to justify the outcome—i.e., to show that the requirement or test was job-related. As I read the majority opinion, numbers are no longer enough to indicate that an employer has anything to worry about, in the absence of “a strong basis in evidence” that something besides results in a miss. This is a substantial weakening of the disparate-impact prong of Title VII. As you suggest, Walter, the 2nd Circuit (and the 6th Circuit, which had handled a similar case in a nearly identical way) was playing by the old rules, and the Supreme Court changed those rules. Don’t we want our appellate judges to play by the rules they are given and to refrain from the activism that would be involved in crafting new ones?  Does it seem to you, as it does to me, that Judge Sotomayor’s critics are now kind of stuck?