Saturday, April 17, 2010
I think this is my favorite paragraph I've ever written in a law school paper
As the above-cited examples indicate, the idea that knowing that an employment action will have a negative impact on a group of people sharing a trait and taking that action anyway equates a intent is not one the Supreme Court had expressed before this. This new definition of "intent" as applied to disparate impact could serve to revolutionize disparate impact law should it be widely held as part of the holding of Ricci. That said, this point was ignored entirely by the media in the wake of Ricci and has not appeared in any law review article or other secondary source currently available on Lexis-Nexis or Westlaw, so it does not appear to be the prevailing view of the upshot of Kennedy’s choice of wording.
Posted by Chalicechick at 4/17/2010 11:18:00 AM
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Obviously this is one paragraph in a much longer analysis, but I don't think I understand the point you're making.
The district court in Ricci held, "motivation to avoid making promotions based on a test with a racially disparate impact … does not, as a matter of law, constitute discriminatory intent." Yet the Teamsters precedent, as described by Kennedy, was that a disparate-treatment plaintiff must establish "that the defendant had a discriminatory intent or motive" for taking a job-related action. So the concept of discriminatory intent or motive even in a disparate-treatment claim does not appear to be new.
When I write something that seems very clever, I always look at it very closely when I revise. Most such passages do not survive.
PG--The concept isn't new, indeed "intent" is a part of all disparate treatment actions, but the court treating something like the decision to throw out the test results as intentional discrimination is a for lower bar for intent than one would generally have expected from this court.
LF--I wouldn't call it particularly clever, if anything it is indicating that nobody with any sense is reading this the way I am. But I don't see how I'm wrong.
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