Amicus Brief

Margerum v. City of Buffalo

Court should avoid construing state law to allow broad disparate impact liability

Brief Amicus Curiae of Pacific Legal Foundation, Center for Equal Opportunity, Project 21, Individual Rights Foundation, Reason Foundation, and Cato Institute in Support of Appellants-Respondents

Margerum v. City of Buffalo

This brief examines the conflict between disparate impact theory and the Equal Protection Clause in cases such as this one, where government discriminates against people of one race, in order to avoid an adverse impact on people of another race. Here, the City decided to allow the Fire Department’s promotional eligibility lists to expire. The City’s decision was racially motivated: the next applicants in line for promotions were Caucasian, and the City feared a disparate impact challenge from the African-American firefighters had the Caucasian firefighters been promoted.

One of the questions raised in this case is whether that race-based decision to discriminate against Caucasian firefighters is permitted under the law. Following the U.S. Supreme Court’s decision in Ricci v. DeStefano, the lower court held that the City of Buffalo could not refuse to promote qualified Caucasian firefighters in order to avoid a potential disparate impact lawsuit by African-American firefighters.

Disparate impact theory under Title VII-and in other contexts-is controversial because disparate impact plaintiffs need not allege, nor prove, that individuals were treated differently because of their race. Instead, plaintiffs need only show that a race-neutral practice has a disparate impact-a disproportionate effect-on some racial group. The Supreme Court has yet to decide whether disparate impact conflicts with the Equal Protection Clause, which requires equal treatment under the law.

Amici understand that the relationship between the disparate impact theory of Title VII and the Federal Equal Protection Clause is not before this Court. Nor was it before the Supreme Court in Ricci v. DeStefano. But the Equal Protection Clause casts its shadow over all disparate impact claims, including those raised in Ricci and in this case.

In only one circumstance does Ricci allow race-conscious, intentional discrimination: An employer must have believed that action was necessary to avoid disparate impact liability, and demonstrate that belief by a “strong basis in evidence.” Neither racial disparities, nor fear of litigation are alone sufficient to meet this test. This Court should avoid construing state law to allow broad disparate impact liability, because to do so would raise serious constitutional problems.

Amici respectfully request that the Court uphold the decision of the lower court that the City of Buffalo failed to meet the “strong basis in evidence” standard of Ricci v. DeStefano.