Tag Archives: discrimination

The Future of Disparate Impact

Disparate impact has seen its fair share of controversy in the past year and a last minute deal probably saved the theory it in late 2013.

The Equal Employment Opportunity Commission (EEOC) received lots of attention and a fair amount of criticism when they filed legal complaints against BMW and Dollar General alleging discriminatory practices based upon disparate impacts.  BMW had a hiring process that screened out applicants with a criminal conviction.  Dollar general had a similar policy.  The EEOC alleged even though the policies were not targeting any class of people, African Americans are negatively impacted because of their disproportionate arrest and conviction rate.  The pundits filled both the television and the opinion pages of newspapers arguing for and against the legal strategy.

To magnify the discussion surrounding disparate impact the United States Supreme Court accepted certioari for the 2013 term, Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., No. 11-1507 (2012), but a private deal was brokered weeks before oral arguments and the case never made it to the justices.  The issue that would have been argued is whether disparate impact claims are applicable under Section 804(a) of the Fair Housing Act (“FHA”). That section makes it unlawful “to refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”  The reason why many people think the court decided to hear the case is at least revise how disparate impact is used in the housing context.  Eleven federal courts of appeals during thirty-eight years have upheld the disparate impact standard in the context of the Fair Housing Act.  Brief for the Respondent, No. 11-1507 at 27-28 (2012).

Disparate impact is used as a tool for determining if there is discrimination.  It is used in cases where there is a facially neutral policy (the policy is applicable to everyone), but the impact negatively affects a class of people.  Even if a neutral practice does have such a disparate impact, a business will not violate Title VII if it can prove that the neutral practice is job related and consistent with business necessity. For a much more in-depth explanation of disparate impact, see my post about the theories of discrimination.

Academics have also chimed on disparate impact as well.  Many of the articles in the current Harvard Civil Rights – Civil Liberties Law Review are centered on disparate impact:

The Agency Roots of Disparate Impact

Assessing HUD’s Disparate Impact Rule: A Practitioner’s Perspective

Banning the Box but Keeping the Discrimination?: Disparate Impact and Employer’s Overreliance on Criminal Background Checks

As for my own personal opinion, I think disparate impact will be used in determining discrimination complaints for the foreseeable future.  Overt discrimination appears less and less.  So being able to produce a document or policy that discriminates against a class of people is more of a relic of the past.  I do not believe discrimination is dead — in fact, far from it.  On the other hand, I also believed that disparate impact is not a perfect tool for evaluating discrimination.  But I think it is a very valuable tool in the arsenal to combat discrimination.



Arizona Legal News

  • It is a scary time to be an investigative reporter in the United States.  In recent years, the United States government seized two months worth of phone logs from Associated Press office phones in New York, Washington D.C., Hartford Conn., and the main number for the AP in the House of Representatives press gallery. United States Attorney General also signed off on a search warrant for Fox News reporter James Rosen’s emails.  Last week, the State Department launched a free press campaign the same day the Department of Justice asked the United States Supreme Court to force James Risen into jail.  [TechDirt]
  • Big data can lead to big problems, if not used with extreme care. President Barack Obama is saying there is a potential for discrimination in the use of ‘big data’ by the United States government and private corporations on issues such as housing and employment discrimination.  [Associated Press]
  • The cloud is convenient, getting cheaper, and more secure. But the cloud and the laws surrounding the information in the cloud haven’t been sorted out yet.  From government seizures of entire private cloud storage sites, to terms of service constantly changing, there are unique problems that occur up in the cloud.  [NPR]
  • Courts have at times extended medical negligence to faulty equipment, which unintentionally broke during a procedure.  It does not appear courts have looked at the issue of whether negligence extends to manufacturers of equipment that intentionally breaks due to malicious intent.  Can hospitals or product manufacturers of vulnerable equipment liable?  [Wired]
  • There is a growing overlap between social media and class action lawsuits, sometimes called ‘tweet suits.’  Plaintiffs use social media to find other similarly situated potential plaintffs to join in the lawsuit.  The courts will have to sort out if it is permissible to air one’s dirty laundry on social media, in part, to find co-plaintiffs for a class action suit.  [NPR]

Arizona No-Bail Law Discriminates?

The Ninth Circuit Court of Appeals, sitting en banc, last week held a  re-hearing of an argument challenging a section to Arizona’s Constitution that denies bail to undocumented immigrants.  The contention is since this Arizona Constitutional clause is limited only to undocumented immigrants that it unfairly discriminates with a type of national origin claim.

The first time around, the Court held ‘No-Bail’ clause did not violate the Due Process clause of the Fourteenth Amendment, Excessive Bail clause of the Eighth Amendment, nor the Sixth Amendment’s right to counsel.  Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054 (9th Cir. 2013).

The American Civil Liberties Union (ACLU) asked the entire Ninth Circuit to rehear the case (instead of a three judge panel), and the Court agreed to hear the argument en banc (entire court).  The ACLU argued Tuesday in a federal appeals court in San Francisco that a voter-approved Arizona law denying bail to undocumented immigrants should be found unconstitutional and struck down. The ACLU argued the result of the law is that Latino immigrants are held in jail before they have been convicted of crimes while other groups are not.

Arizona No-Bail Law

In 2006, the voters of Arizona overwhelmingly approved Proposition 100 an amendment to the Constitution of Arizona, which created an exception to the general bail policies.  Undocumented immigrants would be denied bail for all serious felonies.

The law states:

For serious felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge.

Ariz. Const. art. II, §22 (A)(4).

The No-Bail law is an example of a facially non-neutral statute.  The statute identifies a class of people, those who are undocumented inside the United States, and applies special circumstances just to them.  Thus, undocumented immigrants are potentially being treated differently than those who are not.  Critics charge this law is disparate treatment — where intentional treatment is used in an unlawful manner.

Proponents of the law say is based in public safety and minimizing those who are flight risks.

Interestingly enough, when passed the law did not state a procedure for judges to investigate whether the defendant was undocumented or not.  In 2007, the Arizona issued an administrative order clarifying the procedure for all state judges. At an Initial Appearance the court shall: 1. Make a determination if probable cause exists for the alleged crime; 2. If the allegation involves A.R.S. § 13-3961.A.5, the court shall then determine whether probable cause exists to the legality of the defendant’s residence in the United States; 3. If the court finds probable cause for steps 1 and 2 the court shall hold an evidentiary hearing to determine if bail will be denied.  Amin. Order No. 2007-30, avialable at http://www.supreme.state.az.us/orders/admorder/Orders07/2007-30.pdf (last visited March 26, 2014).  This is the current procedure that is used. Ariz. R. Crim. Pro. 7.4(a).

What is Bail

The concept of bail predates the American judicial system and is borrowed from the English common law.

 [E]xcessive bail ought not to be required: though what bail shall be called excessive, must be left to the courts, on considering the circumstances of the case, to determine.

— Sir William Blackstone, Of Commentaries on the Laws of England (1765-1769), book 4, ch. 22 Of Commitment and Bail.

The idea of bail is simply the state is taking a risk by releasing the accused, and in return the accused must pay an equitable amount to compensate for that risk. Stack v. Boyle, 342 U.S. 1, 5 (1952). There are situations in which bail is revoked and the accused will stay in custody throughout the trial.  Setting the amount of bail is generally within the sound discretion of the trial court, whose determination is subject to review in the appellate courts for abuse of discretion.

It is seldom that bail categorically denied.  Only one other state has a law that categorizes bail based upon citizenship status.  Mo. Rev. Stat. § 544.470(2). With only two states that have such statutes (Arizona and Missouri), it is almost an anomalous practice, not even close to the norm.

Ninth Circuit Court of Appeals – First Time

Interestingly, both the majority and the minority opinions use the same standard. The United States Supreme Court said to determine if bail is an excessive constraint on liberty, impermissible punishment, or permissible regulation two factors are used: 1. Does the reason for the bail match the legislative intent; and 2. Is the bail excessive in relation to the regulatory goal?  United States v. Salerno, 481 U.S. 739, 747 (1987).

The Arizona Legislature made no formal findings on the purpose of Proposition 100 ‘No-Bail.’  This forced the court to interpret their intentions, which is where it gets sticky.  Both sides, the majority and the minority, look to committee hearings where legislators make statements in favor and against the proposed legislation in order to parse together an intention.  Furthermore, both sides agree that illegal immigration entered into the debate on the bill.  Where the sides depart is how much influence the illegal immigration debate had on the legislative intent.

For the majority, they did not think the intention of the bill was to punish undocumented immigrants.  The court examined information presented to the voters, statements by politicians and the Maricopa County Attorney, and the media coverage.  The majority insists the intent was on flight risks and safety of the public.

The minority, viewed the evidence differently.  State Rep. Russell Pearce, State Rep. Ray Barnes, State Sen. Jack Harper, State Rep. John Kavanaugh, all made disparaging remarks tying illegal immigration to the ‘No-Bail’ legislation.  Because of this Judge Fisher says in his dissent:

Fairly viewed, however, the legislative record as a whole clearly shows that legislators were motivated at least in large part by an overriding desire to punish undocumented immigrants for being in the country unlawfully — i.e., that lawmakers ‘intended to impose punitive restrictions’ on undocumented immigrants.

Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054, 1075 (9th Cir. 2013) (Fisher, J., dissenting).

The second prong of the analysis is whether ‘No-Bail’ is excessive.

The majority determines Arizona’s interest is superior to any individual right asserted.

Balancing the individual’s right to liberty with Arizona’s compelling interest in assuring appearance at trial, we cannot categorically state that pretrial detention offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.

Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054, 1064 (9th Cir. 2013) (internal citation omitted).

The minority again did not the same analysis. Judge Fisher notes that there is no evidence of the flight risk or safety being a problem. There are no studies, no statistics to back up the claim.  Thus, any disparate treatment is excessive.  Taking his analysis a step further, Judge Fisher challenges the majority’s notion that all illegal immigrants are flight risks and must be evaluated on a case-by-case basis.  Some undocumented immigrants have strong ties to communities in the United States.  Their only home may be in the United States.  They may be here for more than one generation.  The blanket ‘No-Bail’ provision does not take any of these factors into account.


Ultimately the full bench on the Ninth Circuit Court of Appeals will get a chance to determine if this provision is constitutional or not.

A blanket provision that covers an entire class of people, undocumented immigrants, by its nature stereotypes.

Procedure by presumption is always cheaper and easier than individualized determination.

Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054, 1079 (9th Cir. 2013) (Fisher, J., dissenting) (quoting Stanley v. Illinois, 405 U.S. 645, 656-57 (1972)).

I hope the Ninth Circuit reverses its first ruling.


Theories of Discrimination in the Law

The theories of discrimination are important because they allow courts to evaluate discrimination in a legal context.  To be able to measure the existence and extent of discrimination it is necessary to have a theory (concept, or model) of how such discrimination might occur and what its effects might be.  In a legal sense, discrimination can be broken down into either disparate treatment or disparate impact.[1] Looking through legal treatises and the Internet it is difficult to find good working definitions of the theories of discrimination. No matter if the context is employment, racial profiling, or in death penalty proceedings these theories can be applied and help to understand how a claim of discrimination can be made.

i. Disparate Treatment

Disparate treatment is intentional treatment[2] that occurs when an unlawful action is the motivating factor.[3]  The Supreme Court has “consistently used conventional disparate treatment theory, in which proof of intent to discriminate is required, to review. . . decisions that were based on the exercise of personal judgment or the application of inherently subjective criteria.”[4] A simplified way to describe disparate treatment is to equate it with intentional treatment. There is a little more to it, but hopefully it will be flushed out.

First, intentional discrimination needs to be defined.[5]  Intentional discrimination is one of two elements needed to prove disparate impact.[6]  The definition of intent is pivotal.  However, proving intent “is a sensitive inquiry,” especially when direct evidence of discrimination is not available.[7]  A determination of whether there is a disproportionate impact[8] of the treatment can be a good starting point in the analysis.[9] However, Court has not established a fixed procedure for analyzing or proving intent.[10]

To prove disparate treatment three types of evidence can be used: comparative, statistical, and direct evidence of motive.[11]

Comparative evidence examines similarly situated individuals of different race, sex, or national origin accorded differences in treatment in the death penalty context.[12] “Similarly situated [individuals] must be directly comparable to the plaintiff in all material respects, but they need not be identical in every conceivable way.”[13]  Ultimately, it is the fact finder who determines if the comparators are sufficiently similarly situated.[14]

When using comparative evidence in a disparate treatment context, using the correct comparators are essential in establishing that individuals or class members are similarly situated.  Almost by definition, one sub-set of discrimination is: the practice of unfairly treating a person or group differently.[15]  The problem courts deal with is how close a match does a comparator have to be.

There is some leeway when selecting comparators.  It does not have to be an exact match, but “[c]omparators need only be similar enough to enable a meaningful comparison.”[16]  No two situations are exactly the same, and only in theory will a comparator have an exact match.  “Demanding nearly identical comparators can transform this evidentiary ‘boost’ into an insurmountable hurdle.” [17]

However, if comparators are not close enough for a meaningful comparison then they are not useful as an evidentiary tool.  “[T]he comparators must be similar enough that differences in their treatment cannot be explained by other variables, such as distinctions in their roles or performance histories.”[18]

Statistical evidence can be relevant in proving an individual case of disparate treatment because it is evidence of the presence of a discriminatory motive, but does not prove causation.[19]  While statistical data can evidence a discriminatory motive, [20] statistics alone are insufficient to prove disparate treatment.[21]

Either direct or indirect evidence can be used to help establish intent.[22]

Direct evidence of motive is any statement by an official that indicates a bias against members of a particular group.[23] “Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact [in issue] without inference or presumption . . . . [O]nly the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of [race]. . . constitute direct evidence of discrimination.”[24]

Indirect or circumstantial evidence is extremely useful in vague or unclear issues, for instance when an issue turns on an “actor’s motive or intent.”[25] “A discrimination suit (unlike, for instance, an action for negligence or breach of contract) puts the plaintiff in the difficult position of having to prove the state of mind of the person making the [sentencing] decision.”[26]  To prove the motive or intent, circumstantial evidence can be linked together as the basis of an argument.[27]

If circumstantial evidence is properly assembled it can be even more persuasive than direct evidence.[28] Some courts do not even draw a distinction between the “probative value” of direct and circumstantial evidence.[29]  “‘The reason for treating circumstantial and direct evidence alike,’ the Supreme Court has explained, ‘is both clear and deep rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’”[30]

Circumstantial evidence is accepted in both the criminal and civil contexts. The Supreme Court has “never questioned the sufficiency of circumstantial evidence in support of a criminal conviction, even though proof beyond a reasonable doubt is required.”[31]

ii. Disparate Impact

The disparate impact theory of analyzing discrimination was a construct advocated by the EEOC first in 1966, without judicial or legislative backing.[32]  The agency believed that discrimination was not only intentional acts of overt discrimination against individuals, but it also included facially neutral polices that have an adverse impact. The theory gained traction and later was accepted judicially as a permissible way to analyze discrimination, five years later in Griggs v. Duke Power, Co.[33]

Disparate impact focuses on the effect of an action or policy.  The party claiming a disparate impact needs to establish that a facially neutral act or policy has an adverse effect in significant numbers. [34]  In the death penalty context a disparate impact analysis would work by removing barriers in the death penalty that are not necessarily intended or designed to discriminate – “practices that are fair in form, but [arbitrary] in operation.”[35] Unlike disparate treatment, proof of discriminatory motive is not necessary in a disparate impact analysis; the outcome is the crux of the argument.[36]

In a disparate treatment analysis the policy law or statute is facially neutral.  There is no intent to evaluate.  Thus, disparate impact analyzes the probability of a particular outcome, and cannot prove causation because there is not enough information.[37]  Adverse impact can be determined by comparing the percentage of similarly situated applicants who were selected with the percentage of applicants selected from the group with a different selection rate.[38] In a sequence of events, statistics only look at one particular point in time, and are not reflective of the entire sequence.[39] Statistics can only take into account that variable exist and cannot eliminate the possibility that variables outside of the statistical study may have caused the disparity.[40]

The premise of the disparate impact analysis is some “practices, adopted without a deliberately discriminatory motive, and may in operation be functionally equivalent to intentional discrimination.”[41]

a. Washington v. Davis

Disparate impact is not available in every situation as a method to determine discrimination.  In this case Washington v. Davis[42] precludes disparate impact as the sole reason for a claim of discrimination under the Equal Protection Clause.[43]  In the civil context, Congress has provided statutory protections allowing disparate impact analysis in certain situations when an equal protection claim is made.[44]

Two black police officers brought suit against the Commissioner for the District of Columbia, among others, because the promotion policies were racially discriminatory towards blacks.[45] Part of the promotion policy included a facially neutral written test, which excluded a disproportionately high level of black applicants.[46] Plaintiffs claimed that the discriminatory effect of the test violated the Due Process Clause of the Fifth Amendment and also the Equal Protection Clause of the Fourteenth Amendment.[47]  The test, designed by the Civil Service Commission, was used throughout the federal service to test whether applicants could read and write at a high school level.[48]

Even though the Equal Protection Clause prohibits discrimination based on race, there are limitations on how discrimination can be analyzed. “[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional Solely because it has a racially disproportionate impact.”[49]  Thus, in the death penalty context when asserting a claim under the Equal Protection Clause, more than just disparate impact needs to be asserted. “Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.”[50]  The Equal Protection Clause is supplemented by the language of Title VII of the 1964 Civil Rights Act expressly permitting the use of disparate impact claims in employment discrimination contexts.[51] There is no statutory equivalent of Title VII for claims of equal protection in death penalty proceedings allowing for a pure claim of disparate impact.

A facially neutral policy can be applied so as to “invidiously discriminate,” against a race or a class of people, would trigger the Equal Protections Clause.[52] However, it appears that when a facially neutral policy is applied to invidiously discriminate, there is an intent to discriminate which would not make it a pure claim of disparate impact then, but also that of disparate treatment.  Disparate treatment is a claim that can be asserted under the Due Process and Equal Protection Clauses.

Thus, Washington v. Davis precludes a mere showing of disparate impact when a claim of due process or equal protection is made.  Since claims of discrimination typically involve the Due Process Clause or Equal Protection Clause, then more than just disparate impact must be proved.

[1] 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[2] To describe ‘intentional discrimination’ several synonyms are used by the United States Supreme Court: invidious discrimination, discriminatory intent, and discriminatory purpose.  All of these terms used by the Supreme Court of the United States all refer to the state of mind of the actor.  Even though all of these terms will surface throughout this paper, they will reference to the intent.

[3] 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[4] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 988 (1988).

[5] Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 288 (1997).

[6] Disparate treatment is intentional treatment that occurs when an unlawful action is the motivating factor. 15-V Evaluating Employment Decisions, EEOC Compl. Man., at *1 (BNA).

[7] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[8] Disproportionate impact is not enough to prove a claim of discrimination by itself.  See Disparate Treatment discussion infra.

[9] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[10] Id. at 265-68.

[11] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *1-8 (BNA).

[12] Id. at 1.

[13] Coleman v. Donahoe, 667 F.3d 835, 846 (7th Cir. 2012) (internal quotation marks omitted).

[14] Id. at 846.

[15] Suzanne B. Goldberg, Discrimination by Comparison, 120 Yale L.J. 728, 749 (2011).

[16] Coleman v. Donahue, 667 F.3d 835, 848 (7th Cir. 2012).

[17] Id. at 852 (quoting Gates v. Caterpillar, Inc., 513 F.3d 680, 690 (7th Cir. 2008).

[18] Senske v. Sybase, 588 F.3d 501, 510 (7th Cir. 2009); see Morgan v. Selig, 447 F.3d 748, 755 (9th Cir. 2006).

[19] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *5 (BNA); see Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977) (stating “[s]tatistical analyses have served and will continue to serve an important role in cases in which the existence of discrimination is a disputed issue.”) (internal quotation marks omitted).

[20] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *5 (BNA).

[21] Id.

[22] Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).

[23] Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *6 (BNA).

[24] Bass v. Bd. of Cnty. Comm’rs, Orange Cnty., Fla., 256 F.3d 1095, 1105 (11th Cir. 2001) (internal quotation marks omitted); see Section 604 Theories of Discrimination, 604.3 Proof of Disparate Treatment, EEOC Compl. Man., at *6 (BNA).

[25] Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991) (stating “circumstantial evidence alone can support a finding of political discrimination”).

[26] Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999).

[27] Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 657, 668 (1989) (stating “a plaintiff is entitled to prove the defendant’s state of mind through circumstantial evidence”).

[28] “Perhaps on average circumstantial evidence requires a longer chain of inferences, but if each link is solid, the evidence may be compelling-may be more compelling than eyewitness testimony, which depends for its accuracy on the accuracy of the eyewitness’s recollection as well as on his honesty.”  Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 903 (7th Cir. 2006).

[29] Doe v. United Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003).

[30] Doe v. United Postal Serv., 317 F.3d 339, 343 (D.C. Cir. 2003) (quoting Desert Palace Inc. v. Costa, 539 U.S. 90, 100 (2003)).

[31] Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (citing Holland v. United States, 348 U.S. 121, 140 (1954)).

[32] Shaping Employment Discrimination LawThe Disparate Impact Theory of Discrimination, Equal Employment Opportunity Commission, http://www.eeoc.gov/eeoc/history/35th/1965-71/shaping.html (last visited Sept. 13, 2013); Griggs v. Duke Power Co., 401 U.S. 424, 433 n.9 (1971) (stating “EEOC Guidelines on Employment Testing Procedures, issued August 24, 1966, provide: The Commission accordingly interprets ‘professionally developed ability test’ to mean a test which fairly measures the knowledge or skills required by the particular job or class of jobs which the applicant seeks, or which fairly affords the employer a chance to measure the applicant’s ability to perform a particular job or class of jobs. The fact that a test was prepared by an individual or organization claiming expertise in test preparation does not, without more, justify its use within the meaning of Title VII.’”).

[33] Griggs v. Duke Power Co., 401 U.S. 424, 436 (1971).

[34] Section 604 Theories of Discrimination, 604.7 Adverse Impact, EEOC Compl. Man., at *1 (BNA).

[35] Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).

[36] Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).

[37] The Statistics of Discrimination Using Statistical Evidence in Discrimination Cases, Part 1. Introduction to Statistics and Discrimination, Chapter 2. Statistics: An Introduction, § 2:5. The problem of causation, at 1 (West 2012).

[38] Section 604 Theories of Discrimination, 604.7 Adverse Impact, EEOC Compl. Man., at *1 (BNA).

[39] See Washington v. Davis, 426 U.S. 229 (1976).

[40] The Statistics of Discrimination Using Statistical Evidence in Discrimination Cases, Part 1. Introduction to Statistics and Discrimination, Chapter 2. Statistics: An Introduction, § 2:5. The problem of causation, at 1 (West 2012).

[41] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988).

[42] Washington v. Davis, 426 U.S. 229 (1976).

[43] Dorsey v. United States, 132 S. Ct. 2321, 2344, (2012) (Scalia, J., dissenting) (stating “only intentional discrimination may violate the equal protection component of the Fifth Amendment’s Due Process Clause”).

[44] E.g. 42 U.S.C. § 2000e-2(k) (employment discrimination).

[45] Washington v. Davis, 426 U.S. 229, 232 (1976).

[46] Id.at 233.

[47] Id.

[48] Id. at 234-35.

[49] Id. at 239 (original emphasis included).

[50] Id. at 242.

[51] 42 U.S.C. §2000e-2(k).

[52] Washington v. Davis, 426 U.S. 229, 241 (1976).

Police Have Affirmative Duty to Accommodate Disabilities

The police are subject to Title II of the Americans with Disabilities Act.

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

— 42 U.S.C. § 12132.

Before the analysis goes too far, it is important to note not all disabilities are covered by the Americans with Disabilities Act.  Not just anyone with a disability is covered — it must be a “qualified individual.”  An individual with a disability is: a person with a physical or mental impairment that substantially limits a “major life activity.”  Direction for which disabilities substantially limit major life activities is defined in the statute: 42 U.S.C. § 12131(b) and 42 U.S.C. § 12102.

The language of the legislation says that a qualified individual cannot be denied the benefits of a public service or program.  Courts have interpreted this to mean that there is an affirmative duty, or a legal obligation to serve the disabled in a reasonable manner.[1] The United States Supreme Court said to prevent unconstitutional behavior, it must be prophylactic.  In other words, there must be something in place ahead of time to reasonably anticipate the needs of those with known disabilities.

Planning ahead of time in how to accommodate the disabled is a challenging proposition because each investigation is different. Investigations into domestic abuse provide a different set of challenges than road side traffic stop.  Crafting universal policies to deal with the various disabilities is difficult enough, but to apply those policies to the multitude of investigation types can be daunting.

Allowing uniformly-applied, disability-neutral policies to trump the ADA requirement of reasonable accommodations would utterly eviscerate that ADA requirement.

— Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007).

On the other hand, allowing the police to treat everyone the same during an investigation would directly contradict the intentions of the Americans with Disabilities Act.

The accommodation must be reasonable and not create an undue burden for the police (since we are specifically talking about police investigations).

What is reasonable is usually judged on a reasonable person standard.  To use the standard the judge or a jury is asked to put themselves in the place of an imaginary person who is completely objective and of reasonable intelligence.[2] To judge if the accommodations are reasonable, a reasonable person would look to see if the accommodations “take steps to ensure that disabled persons have equal access to the goods and services such places offer.”[3] There may be the possibility that there may be more than one reasonable accommodation.  If there is, in fact, more than one reasonable accommodation then the police have a choice on which accommodation to choose.  The Americans with Disabilities Act says only a reasonable accommodation must be provided, not the best accommodation.[4]

Thus, there is a balancing act that courts undertake, especially in police investigations to apply the affirmative duty unless it imposes an “undue burden.”[5] Undue burden is intentionally left undefined, because multiple factors are involved to determine what unduly burdens a public program or service.  Using the example of police investigations, situations that create an undue burden on the Payson Police Department are probably most likely different than the Phoenix Police Department. Notwithstanding, the size and resources of each police department, courts also look to see what resources may be ascertained on short notice. Payson is a fairly isolated town in the middle of the Tonto National Forest that lacks resources from neighboring towns or cities.  If a problem arises that the city of Phoenix cannot handle on its own, it can ask for the support from any city in Maricopa County.

As each case is different in nature, the court will undertake the determination of what is a reasonable accommodation and what is an undue burden.  The court will look at all of the facts in a particular case and weigh the totality of the circumstances in making a determination.

In conclusion, the Americans with Disabilities Act creates an affirmative duty for the police to take some measures to accommodate the disabled ahead of time.  However, what that duty is remains unclear because of the fluid nature of police investigations.  In future posts in this series examining the police’s duty to accommodate, it will be analyzed in depth what circumstances require accommodations by the different circuits.

Part 1: The Police’s Duty to Accommodate Under the Americans with Disabilities Act

[1] Tennessee v. Lane, 541 U.S. 509, 533 (2004) (holding “Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be ‘so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.’”).

[2] Donahoo v. Master Data Ctr., 282 F. Supp. 2d 540, 557 (E.D. Mich. 2003). (“In this case, none of Defendant’s conduct was so extreme that a reasonable person would exclaim “Outrageous!” upon reviewing the facts described above”).

[3]Hahn ex rel. Barta v. Linn Cnty., 130 F. Supp. 2d 1036, 1057 (N.D. Iowa 2001) (stating “the ADA places an affirmative duty on owners and operators of places of public accommodation to make reasonable accommodations and to take steps to ensure that disabled persons have equal access to the goods and services such places offer”).

[4] “The agency was not required to provide [the Plaintiff] with the exact accommodations that [the Plaintiff] requested or the best accommodations, as long as what they provided was reasonable.” Ransome v. Barnhart, CCB-03-2532, 2005 WL 1075370 (D. Md. May 5, 2005).

[5] Toledo v. Sanchez, 454 F.3d 24, 32 (1st Cir. 2006) (stating “Title II imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burden.”)

The Police’s Duty to Accommodate Under the Americans With Disabilities Act

The police investigate every type of person in society — even those with known disabilities.  Until the last fifteen years or so, the question of whether the police had to make any accommodations to qualified individuals with disabilities during an investigation was not even asked. Plaintiffs now are often asserting a violation of the Americans with Disabilities Act (ADA) and § 1983 civil rights.

The Americans with Disabilities Act was passed in 1990 with the intention of protecting the vulnerable of society because historically their rights have been stripped at times.

Discrimination, in the Fourteenth Amendment sense, connotes a substantive constitutional judgment that two individuals or groups are entitled to be treated equally with respect to something.

— City of Cleburne v. Cleburne Living Ctr, 473, U.S. 432, 470 (1985) (Marshall, J., concurring in part and dissenting in part).

The reason, in theory at least, why the Americans with Disabilities Act applies to police investigations is because people with disabilities are not given the same opportunities as those without disabilities.  A person who is deaf cannot communicate with police the same as a person with can hear.  A person who is autistic lacks in verbal and non-verbal skills and may have difficulty in communicating with the police. Both of these individuals suffer from disabilities, but how it affects them is completely different.  Lack of communication between police and an individual is something that people without disabilities do not have to worry about.  Thus, differential treatment can occur.

Where a plaintiff alleges that she was arrested because of his disability (and not because of the perpetration of some crime unrelated to his disability) the police generally have a duty to accommodate and 42 U.S.C. § 12132 comes into play.[1]   Section 12132 creates a duty that requires public entities to take appropriate steps to ensure communications with qualified individuals are as effective as communications with others.[2]  Reasonable accommodations shall be furnished to allow people with disabilities “an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity.”[3]

The application of the ADA to law enforcement activities, such as prison administration,[4] parole board,[5]  access to court,[6] are held to be public programs or services within realm of § 12132.  However the courts do not agree on whether police investigations involving exigent circumstances are afforded reasonable accommodations.

The entire duty to accommodate is based upon the premise that disabled people are sometimes denied services based upon their disability.[7]  Persons with mental illness are historically a vulnerable population who are subject to discrimination.[8]  Congress created the ADA to help create an equal playing field for those suffering from disabilities.[9]  Because of the ADA public entities have an affirmative duty to make reasonable accommodations.[10]  The affirmative duty puts the burden on the public entity to act.[11]

However, police investigations are unique in their fluid nature it can be very difficult predict an action.[12]   Some courts reason a police officer responding to a 911 call or witnessing a crime has very little time in which to think or plan the best way to apprehend, subdue, and question the participants. [13]  In other areas of law enforcement activities allow more time to ensure their actions satisfy the requirements of the ADA.

Police investigations are special and are different from other types of law enforcement where the courts have clearly upheld the duty to provide reasonable accommodations.  However, there is still this general duty to accommodate people with disabilities that the police must adhere to.  The courts balance the general duty to accommodate with the safety of the police officers in making their decisions.

*** This is part 1 of a multi-part series that will look in-depth what the police must do to reasonably accommodate people with disabilities during police investigations.

Part 2: Police Have an Affirmative Duty to Accommodate Disabilities

[1] “Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C.A. § 12132 (2011).

[2] 28 C.F.R. § 35.160(a)(1).

[3] 28 C.F.R. § 35.160(b)(1).

[4] Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212 (1998).

[5] Thompson v. Davis, 295 F.3d 890, 899 (9th Cir. 2002) (holding parole board may not categorically exclude inmates with history of drug abuse from consideration for parole).

[6] Tennessee v. Lane, 541 U.S. 509, 533 (2004).

[7] Frame v. City of Arlington, 616 F.3d 476 (5th Cir. 2010) (en banc) (holding for reasonable accommodations to be made there must be: 1. Qualified Individual with a disability; 2. Excluded, denied services or programs of a public entity, or was discriminated against; 3. Exclusion was because of the disability).

[8] “[T]he mentally retarded have been subject to a ‘lengthy and tragic history,’ of segregation and discrimination that can only be called grotesque.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461 (1985) (Marshall, J., concurring in part and dissenting in part) (quoting University of California Regents v. Bakke, 438 U.S. 265, 303 (1978)).

[9] “[P]hysical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.” 42 U.S.C.A. § 12132 (1) (2011).

[10] “A public service or program has the burden of proving that compliance with this subpart would result in an undue burden.” 28 C.F.R. § 35.164 (2012).

[11] Tennessee v. Lane, 541 U.S. 509, 533 (2004) (holding “Title II’s affirmative obligation to accommodate persons with disabilities”. . .  “[is] a reasonable prophylactic measure, reasonably targeted to a legitimate end.”)

[12] Tucker v. Tennessee, 539 F.3d 526, 536 (6th Cir. 2008) (explaining that “imposing a stringent requirement under the ADA is inconsistent with th[e] expectations [that]. . . law enforcement officers. . . respond fluidly to changing circumstances and individuals they encounter. . . and impedes their ability to perform their duties”).

[13] Seremeth v. Bd. of Cnty. Comm’rs Frederick Cnty., 673 F.3d 333, 340 (4th Cir. 2012) (stating “[n]evertheless, as in the criminal procedure context, we are reluctant to question the snap judgments of law enforcement officials in situations in which a reasonable officer would fear for his safety and for the safety of those he is charged to protect.”)

Death Penalty Discrimination – Part 2 Equal Protection

This is the second part of a discussion of discrimination in death penalty proceedings and will focus on how the different systems is a violation of the Equal Protection Clause.

The practice of equal protection in the constitutional sense is not as absolute as it is sometimes thought in our everyday lives.  “Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.”  Baxstrom v. Herold, 383 U.S. 107, 111 (1966).  Traditionally claims of discrimination are made about race or gender.  To make an exception of equal protection when a claim of racial discrimination is made it must be proved the government has a compelling interest, but the action it takes is also narrowly tailored to meet its goal.  To make an exception of equal protection when a claim of gender discrimination is made, the government must have an important interest, and the policy must somehow further that interest. In other words, it would have to be shown how the different systems of adjudicating discrimination serves either a compelling or an important government interest.  The McCleskey court made a distinction between discrimination in the death penalty and discrimination in all other contexts. McCleskey v. Kemp, 481 U.S. 279, 294 (1987).  The Court argued that death penalty proceedings are more complex and fundamentally different than other types of discrimination cases.  Id.

My assertion is that even though there may be a fundamental difference between situations, the act of discrimination stays the same regardless of the surrounding circumstances.

The government can have two different systems for adjudicating discrimination and not violate the Equal Protection Clause; however, the government must show that it either has a important or compelling interest at stake to justify the difference in procedure.  The government has an interest in justice.  This can be a double-edged sword, especially in death penalty proceedings when the defendant may not be innocent.  The government has an interest in punishing the guilty.  Although even if the defendant is guilty, the government has an interest in pursuing justice in a fair and impartial manner. The public will lose faith in the judicial system if it does not act in a fair and impartial manner.  The two competing interest makes the government’s interest a balancing act.

Is that enough to meet the important or compelling threshold?  Probably not.  Since the government’s interests are divided between prosecuting crimes and ensuring procedural fairness.

Added to the weighing of interests is that both systems are not equal. The burden-shifting standard was created by a unanimous Supreme Court in the case McDonnell-Douglas Corp. v. Green 411 U.S. 792 (1973), which dealt with the order and allocation of proof in employment discrimination.  The analysis of the McDonnell Douglas burden-shifting framework works in three parts: 1. The plaintiff must establish a prima facie case of discrimination; 2. The employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and 3. In order to prevail, the plaintiff must prove that the employer’s stated reason is a pretext to hide discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).  Created as an option procedurally by the Court to be used if the case lacks direct evidence of discrimination.  Many times there is not hard evidence of discrimination, especially as our society becomes more aware of what discrimination is, thus forcing a claim of discrimination to be pieced together from multiple items or sources.

Indirect or circumstantial evidence is extremely useful in vague or unclear issues, for instance when an issue turns on an “actor’s motive or intent.” Anthony v. Sundlun, 952 F.2d 603, 605 (1st Cir. 1991) (stating “circumstantial evidence alone can support a finding of political discrimination”). “A discrimination suit (unlike, for instance, an action for negligence or breach of contract) puts the plaintiff in the difficult position of having to prove the state of mind of the person making the [sentencing] decision.”  Wright v. Southland Corp., 187 F.3d 1287, 1290 (11th Cir. 1999).  To prove the motive or intent, circumstantial evidence can be linked together as the basis of an argument. Piecing an argument together through circumstantial evidence can be daunting and confusing task both for the parties and for the judge.

That is why it is counter-intuitive to use a system that does not help with the order and allocation of evidence for significantly more complex fact patterns, like death penalty proceedings.  When it is also considered that the government has an interest in procedural fairness, then it becomes very difficult to show how a difficult more rigid procedure for adjudicating claims of discrimination in death penalty proceedings is not a violation of the Equal Protection Clause.

Part 1 – Different Systems

Part 3 – Procedural Due Process

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.

Death Penalty Discrimination – Part 1 Different Systems

“Capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

Ever since the death penalty was reinstated nationally in Gregg v. Georgia, 428 U.S. 153 (1976), it seems there is always some debate about whether or not the death penalty is applied in a discriminatory manner.  There are on-going discussions whether the death penalty is applied disproportionately against certain races or sex.

Without taking a stance as to if the system currently discriminates or not, I argue in my paper “Correcting a Fatal Lottery” that the system for adjudicating discrimination claims in the death penalty is unconstitutional.  I argue that there are two different systems of adjudicating discrimination: one for the death penalty and another for every other type of discrimination claim.

In the death penalty context, claims of discrimination use the evidentiary standard of  “exceptionally clear proof.”    McCleskey v. Kemp, 481 U.S. 279, 292 (1987).  Whether there is exceptionally clear proof of discrimination is argued in a single step.  Both sides make their arguments and the judge then makes her determination.

Every other type of discrimination – employment discrimination, housing discrimination, reverse-racial discrimination, racial profiling by police, racial profiling by private security, racial gerrymandering, qualified immunity by a state prison guard, qualified immunity by city officials and police, felon disenfranchisement laws, and discrimination in jury venire – are decided with a burden shifting system using the preponderance of the evidence standard.  The burden shifting standard allows the judge to organize evidence so it can be more easily digested.  The preponderance of the evidence standard is which ever side has the more convincing evidence shall win. See e.g. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) (employment discrimination in a mixed-motive case); Lindsay v. Yates, 578 F.3d 407, 421 (6th Cir. 2009) (housing discrimination); Weberg v. Franks, 229 F.3d 514, 522-23 (6th Cir. 2000) (reverse-racial discrimination) etc.

Is it just that claims of discrimination in administering the death penalty not only use a different system, but one that is much more rigorous?

My assertion in the paper is that with a defendant’s life on the line, the judicial system should not impose more strict measures to prove discrimination occurred.  If discrimination occurs then it is a flaw within the justice system.  We have all seen the pictures of where Lady Justice is blind.  If a person is being treated differently because of her sex or her skin color then Lady Justice is not administering proceedings with impartiality.  No matter what the crime a person is accused of, justice should be administered fairly and impartially.

This is the first of a  series that I will use to break down the argument of my paper detailing the differences in how the courts judge discrimination and why it is unconstitutional.

The race of the victim has been shown to be statistically significant in several studies.  Racial Discrimination and the Death Penalty in the Post-Furman era (full text). Prosecutorial Discretion in Requesting the Death Penalty (abstract only).

To download and read my entire paper visit: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353416.