Between the Scylla of Disparate Impact and the Charybdis of Disparate Treatment

If federal statutory law expressly commands that all covered federal employees shall be “free from any discrimination based on … race,” does that forbid the federal government from adopting race-based affirmative action plans? That is one of the important—and seemingly obvious—questions posed by Shea v. Kerry, a case brought by our friends at the Pacific Legal Foundation. William Shea is a white State Department Foreign Service Officer. In 1990, he applied for his Foreign Service Officer position and began working in 1992 at a junior-level post. At the time, the State Department operated a voluntary affirmative action plan (read: voluntary as “mandated by Congress”) whereby minorities were able to bypass the junior levels and enter the mid-level service. The State Department attempted to justify its racial plan by noting that there were statistical imbalances at the senior Foreign Service levels, even though the path to the senior levels is unrelated to service at the lower levels.

In 2001, Shea filed an administrative complaint against the State Department for its disparate treatment of white applicants under its 1990-92 hiring plan, complaining that he did not enter at as high a grade as he may have and that the discrimination cost him in both advancement opportunities and earnings. After exhausting administrative remedies, Shea took his complaint to the courts, resulting in this case. The Cato Institute has joined with the Southeastern Legal Foundation, the Center for Equal Opportunity, and the National Association of Scholars to file an amici curiae brief calling for the Supreme Court to take up the case and reverse the federal appellate court below.

In fairness to the court below, Title VII jurisprudence, as it stands, is both unclear and unworkable. The text of Title VII expressly prohibits discrimination on the basis of race—what’s called “disparate treatment.” Indeed, in the specific provisions on federal hiring, Title VII employs very expansive language to ensure that disparate treatment is not permitted. But such a “literal construction” of the Title VII statute was eschewed by Justice William Brennan in 1979, writing for the Court in United Steelworkers v. Weber. Relying on cherry-picked statutory history, Brennan found that Title VII’s plain text did not prohibit collectively bargained, voluntary affirmative action programs that attempt to remedy disparate impact—statistical imbalances in the racial composition of employment groups—even if such plans used quota systems. Later, in Johnson v. Transportation Agency, Santa Clara County, Cal. (1987), the Court exacerbated the issue by extending the Weber rule from purely private hiring to municipal hiring. In Shea, the U.S. Court of Appeals for the D.C. Circuit extended the rule from Johnson and Weber to federal hiring, not just municipal and private employment.

To make matters more confusing, in Ricci v. DeStefano (2009) (in which Cato also filed a brief), the Supreme Court held that, in order for a remedial disparate treatment to be permissible under Title VII, an employer must show a strong basis in evidence that they would face disparate-impact liability if they didn’t make discriminatory employment decisions. The Ricci Court held that the new strong-basis-in-evidence standard is “a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.” While this holding implicitly jettisons the rubric created by Johnson and Weber, the court did not expressly overrule those cases, leaving lower courts in disarray as to when to apply Johnson and Weber or Ricci. Indeed, this conflict between precedents was noted by both the federal trial court and the federal appellate courts below.

As amici point out in our brief, the outcome of Shea’s case hangs on the applicable standard of review. In Ricci, this Court noted that, standing alone, “a threshold showing of a significant statistical disparity” is “far from a strong basis in evidence.” Yet, as the federal trial court noted, “[the] State [Department] does rely solely on a statistical imbalance in the mid- and senior-levels” in order to justify its affirmative action plan. Had the lower Courts applied Ricci, which superseded Johnson and Weber, Shea would have prevailed on his claims. The Court should take up this current case and clarify the jurisprudence applicable in Title VII cases in light of Ricci.