Villanova Law Review


Employment discrimination on the basis of race, gender, and ethnicity has long plagued America’s workforce. Congress passed Title VII to address this concern, which outlawed both intentional and pretextual discrimination—referred to as disparate treatment and disparate impact, respectively. But what happens when two different racial groups bring competing disparate treatment and disparate impact claims seeking to compel an employer to take mutually exclusive actions—one threatening to sue if an employer takes a given action and the other threatening to sue if the employer does not take that same action? Should one claim trump the other? The Supreme Court in Ricci v. DeStefano, carved out a limited defense against a disparate treatment claim where there was a “strong basis in evidence” to believe that not taking the intentionally discriminatory action would result in a disparate impact claim. In NAACP v. North Hudson Regional Fire & Rescue the Third Circuit used a novel temporal distinction to restrict the Ricci defense to its facts. This Casebrief argues that the Third Circuit’s decision reinforced the court’s commitment to upholding Title VII’s purpose of eliminating discrimination by narrowly interpreting the available defenses to liability. After all, two wrongs don’t make a right.