Ricci v. Destefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable

Posted: 31 May 2016

See all articles by Allen R. Kamp

Allen R. Kamp

John Marshall Law School University of Illinois Chicgo

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Date Written: April 18, 2010

Abstract

Although early commentators have focused on Ricci’s discussion of disparate impact, I see what Ricci is saying about disparate treatment as being more important.

One can see Ricci as the case in which the Court came down in favor of one of two competing interpretations of the Equal Protection Clause and Title VII. The anti-subordination principle “is most concerned with actions of a majority race to intentionally subjugate members of a minority race . . . it is when government serves to ‘perpetuate... the subordinate status of a specially disadvantaged group that the Fourteenth Amendment is most implicated.”

The anti-classification principle instead sees equal protection as invalidating all distinctions based on race. Whether the classification is malicious or benign, or whether an individual belongs to an historical or contemporary dominant or subordinate race, does not matter. All such classifications are invalid.

Ricci (or at least the majority five justices) rejects the anti-subordination approach in favor of adopting the principle of anti-classification. One would think that such a change in the law would further the cause of ending discrimination both under Title VII and the Equal Protection Clause of the Fourteenth Amendment, but, paradoxically, it may utterly defeat that cause.

Keywords: Ricci v. Destefano, Disparate Treatment, Title VII, Equal Protection, Conservatism

Suggested Citation

Kamp, Allen R., Ricci v. Destefano and Disparate Treatment: How the Case Makes Title VII and the Equal Protection Clause Unworkable (April 18, 2010). Capital University Law Review, Vol. 39 , No. 1, 2011, Available at SSRN: https://ssrn.com/abstract=1591891

Allen R. Kamp (Contact Author)

John Marshall Law School University of Illinois Chicgo ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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