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Title VII of the Civil Rights Act of 1964 permits plaintiffs to bring discrimination cases under two different theories: disparate treatment, which requires a showing of the employer’s discriminatory intent, and disparate impact, which holds the employer liable absent intent to discriminate if it uses neutral employment policies or practices that have a disparate impact on a protected group. Ricci v. DeStefano significantly affects the interpretation of both of these theories of discrimination.

Ricci adopts a restrictive interpretation of the disparate impact theory that is inconsistent with Congressional intent and purpose, and signals that intentional discrimination is more important than disparate impact. Simultaneously, it appears to broaden the disparate treatment theory, but this new interpretation of disparate treatment is selective: it expands the definition of discriminatory intent to include any overt consideration of a protected characteristic. By its literal interpretation of intent - intent means any conscious, explicit consideration of race in making employment decisions - it appears to disregard unconscious discrimination or implicit bias as supporting a possible cause of action under disparate treatment law. These changes make Ricci one of the worst recent cases decided by the Supreme Court. Ricci sanctions finding discrimination against white men who have been privileged by history and structure of the fire department while simultaneously ignoring the history and practices that led to the low numbers of minority men in supervisory positions in the fire department. It also appears to credit obvious and explicit discrimination over the less obvious but implicit biases caused by structures and attitudes that hinder the progress of women and minority men in the workplace.

Publication Citation

__ Nev. L. J. __ (forthcoming 2011).