| Sumario: | In June 2009, the Ricci v. DeStefano case was decided by five of the nine U.S. Supreme Court judges. This case impacts public-sector employers by expanding on the rule called a 'strong basis in evidence.' Under this rule, a public-sector employer cannot engage in certain activities for the asserted purpose of avoiding or remedying unintentional disparate impact, unless the employer has a 'strong basis in evidence' to believe it will be subject to disparate-impact liability. The evidence for this rule must be in place before a public-sector employer takes a race-conscious action to minimize adverse impact. This article critically evaluates the test validity discussion that occurred in the Ricci case; addresses topics relevant to the new rule not covered by the decision, such as the cutoff used, weights used, differentiating requirements of the rank-ordered list, and the rule of three; and describes guidelines for conducting a particular kind of study in an employment context, called a Croson Study, that can be used to gather a 'strong basis in evidence.' This article identifies circumstances under which a Croson Study is needed, and how to do it that will allow public-sector employers to evaluate whether they may be justified-using the Supreme Court's 'strong-basis-in-evidence' rule-to institute race-conscious remedies under Title VII.
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