Johnson’s Article to Appear in the TEMPLE POLITICAL & CIVIL RIGHTS LAW REVIEW

Posted: Tue, 09/11/2012 - 15:38

Professor Rusty Johnson’s recent article, “Disambiguating the Disparate Impact Claim,” will be published in the fall 2012 issue of the Temple Political & Civil Rights Law Review. The abstract from Professor Johnson’s article can be read below.

The Temple Political & Civil Rights Law Review (TP&CRLR) is published by Temple University’s Beasley School of Law.  According to their website, “TP&CRLR is a student-edited scholarly journal which provides a forum for the discussion of contemporary political and civil rights issues. Established in 1991, the TP&CRLR is now recognized as one of the top issue specific law reviews in the nation. Articles reflect a spectrum of concerns ranging from immediate questions of law and policy to basic assumptions about the nature of individuals, groups, and institutions. The purpose of the Temple Political & Civil Rights Law Review is to publish a timely, first-rate law review devoted entirely to issues in the field of political and civil rights law which helps meet the need for serious scholarship in this area.”

Professor Johnson holds a juris doctor and master of international affairs from Columbia University, and a bachelor of arts in economics from Duke University. In between his studies at Duke University and Columbia University, Professor Johnson served as a Peace Corps volunteer in Mali, West Africa, for two years and as an Americorps NCCC volunteer for one year. Professor Johnson’s complete biography can be found on the law school’s faculty page.

Article Abstract “Disambiguating the Disparate Impact Claim” by Professor Rusty Johnson

In Ricci v. DeStefano, Justice Scalia contended in a concurring opinion that the disparate impact claim may be unconstitutional.  Justice Scalia’s assertions sound an alarm because commentators herald the opinion establishing the disparate impact doctrine – Griggs v. Duke Power Co. – as the most important civil rights decision behind Brown v. Board of Education.  To date, the prevailing approach to responding to Justice Scalia’s contentions rests upon the same, implicit baselines underlying his assertions.  Although not contained in the disparate impact claims’ elements, those baselines provide that the disparate impact doctrine exists to either ‘smoke out’ hidden discrimination or rectify the structural inequality resulting from centuries of de jure and de facto discrimination.

I argue that the origins of the disparate impact doctrine reveal another baseline proposition for the doctrine.  Principally, the adoption of the business necessity prong of the doctrine reveals a concern with employment practices that contravene an established workplace governance process.  This same concern exists in the present, as evidenced by the widespread efforts of employers to avow the values of fair and equitable processes in workplaces.  Therefore, this article will demonstrate that a workplace governance baseline according fair and just procedures for workers exists in the modern employment context. Selection practices that distort fair procedures in the workplace contradict this normative baseline, and the disparate impact doctrine serves as a measure to remedy such procedural distortions.  With this conceptualization of the reasons underlying the disparate impact doctrine, I provide an alternative basis for assessing the constitutionality of the doctrine and addressing Justice Scalia’s contentions.