Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

The Ricci v. DeStefano case (now on remand from the U.S. Supreme Court) has vanished from the headlines, but the case is still kicking around as the courts and the parties attempt to fashion a remedy that fits with the judgment in favor of the plaintiffs.

For some time now, however, the plaintiffs have made some oral arguments at various proceedings that the United States District Court Judge Janet Arterton should recuse herself from the case.  Those accusations rose to a new level on Tuesday when they filed a lengthy motion to that effect.

You can download the motion here, and the accompanying memorandum of law here. 

The judge has steadfastly denied thus far that she has done anything improper whatsoever in transcripts to various proceedings.   

I would be remiss if I did not note that these types of motions should be viewed skeptically for a number of reasons, most particularly that they don't claim to present a balanced picture.  The judge is also limited in how she can respond publicly, and thus, there is much more to these issues than is being discussed.

But ask yourself when you read the motions:  Are the plaintiffs justified in making claims here? Can a fear that the judge will be impartial be enough no matter how unreasonable that fear is? Is a judge barred from having public outreach on a case just because it is high-profile? And if a judge is later reversed by the U.S. Supreme Court, does that "taint" the original judge from hearing the case on remand? 

I'm sure a lot of people will answer "no" to these questions.   Take another example, the plaintiffs suggest that there was something improper about the judge attending oral argument in the case before the Supreme Court saying it was unusual. But even if that's the case, the question arises: What is wrong with that behavior? How does that mean that the judge will be impartial?

There is no timeframe yet on when the judge will rule on the recusal motion and the City of New Haven has 21 days to respond. 

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From time to time, employers are faced with a quandary: When an employee has not been following the rules, do I fire the employee straight up? Or do I give the employee an opportunity to resign first, and potentially sign a settlement agreement?

Why might an employer do that? Well, it allows the employee to save face and to say, honestly, to a potential employer that he/she left, rather than fired.  That also allows the employee to find new work quicker than having to explain that he/she was fired for violating company rules or at least suspected of such violations.

But suppose an employer did so and then asked the employee to sign a release of claims (and potentially even offered some money to settle any potential claims the employee may have). Is that agreement -- which is under the veil that the employee will be fired if he/she doesn't sign -- signed under "undue influence" and thus void?

The Connecticut Appellate Court, in Gengaro v. City of New Haven (officially released on December 29, 2009), said no.  The court held that even though the employee may have had financial or medical issues, the "pressure" to settle did not rise to the level of "undue influence."

The Connecticut Business Litigation Blog discusses the legal specifics of the element in good detail this morning so I won't repeat it here.  If you're interested in the background of "undue influence", it's worth a look. 

Takeaway for Employers

The case is good reminder to employers of the old expression, "It ain't over, 'til its over".  Even after an agreement is signed, there is still a risk of attack.

So what's an employer to do?

1) Draft the agreement in plain language that spells out exactly what the employee is agreeing to.

2) Provide the employee with a reasonable amount of time to consider it.

3) If there are age discrimination claims that are being waived, don't forget about the obligations of the Older Workers Benefit Protection Act. 

4) Consider adding a specific reference in the agreement that the employee understands the provisions of the agreement and represents that he/she is signing it off their own free will.  

But most of all, have legal counsel help draft and review it.  Settlement agreements are an opportunity to resolve a matter once and for all; you don't want legal loopholes or drafting errors to allow a matter to be reopened that should otherwise be closed.

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So, while everyone has been paying attention to the Ricci v. DeStefano case, which dealt with a group of white firefighters who claim that they should've been promoted, another case involving New Haven firefighters has been making its way through the state court system.

(As an aside, are there any firefighters in New Haven who haven't brought an employment discrimination claim against the city?)

Today, the Connecticut Supreme Court reversed a jury verdict which found that, by promoting other firefighters through a practice called ‘‘underfilling,’’ the City of New Haven (and others) had discriminated against several African-American firefighters on the basis of race in violation of their right to equal protection under the fourteenth amendment to the United States constitution.

The case, Broadnax v. City of New Haven (download here), won't be officially released until next week, but it dates back to some decisions made in the 1990s.  

Frankly, because the case is decided on equal protection grounds, it will be of little impact to private employers in the state. For government entities, though the case, delves into the practice of "underfilling" and says that, at least in this situation, it was handled properly.

What is "underfilling"? Don't bother looking it up in Google. But the Connecticut Supreme Court provides its definition:

Underfilling, as the term is used in the present case, occurs when the fire department promotes an individual to a particular position, and the city’s budget has not allocated funds to pay the salary of that position, whereby funds for a vacant higher ranking position are used to pay for the newly appointed lower ranking position. For example, if ten individuals are promoted to lieutenant, and only five vacancies exist in the budget for the position of lieutenant, but several vacancies exist in a higher ranking position, such as captain or battalion chief, the first five newly appointed lieutenants are promoted and paid with budgeted lieutenant funds, but the next five newly appointed underfilled lieutenants are paid with funds reserved
for the vacant captain or battalion chief positions. Thus, when an individual employed at a lower ranking position is paid from funds reserved for a higher ranking position, that individual is considered to have been underfilled.’

Got that?

In any event, the Court here says New Haven's practices were not discriminatory and that the evidence presented by the firefighters fell far short of establishing their case. 

For New Haven, the case will surely bring a sigh of relief that it can close yet another case involving firefighters in the city. But don't expect that we've heard the last of a group of firefighters. Yet another group of firefighters have been requesting judicial relief as well lately.

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It was never really a question of if, but when.

And yesterday, the United States District Court in Connecticut made final what had long been anticipated in the Ricci v. DeStefano case -- the promotions of various firefighters to the positions of Lieutenant and Captain.  You can download the order here.

In doing so, the Court also ordered the City to certify the results of the promotional exam. Specifically:

The New Haven Civil Service Board shall certify the results of the 2003 promotional examinations for the positions of Lieutenant and Captain in the New Haven Fire Department, and shall certify the promotional lists for each position derived from these examination results.

The New Haven Independent has a full report on the order as well as feedback from each of the parties to the lawsuit.  The New Haven Register's report is here. 

Earlier this month, a group of black firefighters moved to intervene in the lawsuit. The court has yet to rule on that motion, but the court's entry of judgment certainly indicates that the judge did not view that motion as warranting any delay in the proceedings.

As noted before, the parties will still brief two additional issues for the court's review: (a) the scope and nature of damages to which Plaintiffs are entitled under Title VII, and (b) whether any counts remain for liability adjudication.  The briefing of these issues will be completed in early January 2010. 

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My thanks to the Human Resource Association of Greater New Haven for the invitation to speak to that group last week on the topic of social media and employment law.  HRAGNH is an affiliate of SHRM and with nearly 60 attendees, we had a packed house for the event.

When I've given such talks in the past, I've always been a little disappointed that more people aren't using social networking tools for their job searches or for recruiting talent.

But I had no such disappointment here -- I'd estimate that about 90 percent of the crowd was already using LinkedIn and Facebook for business or personal use.  (Twitter trailed behind considerably and just one brave soul was using Google Wave). 

In fact, in my conversations with attendees, I was struck by the consistent two-fold message that recruiters and human resources professionals conveyed about social networking sites.

First, if you're a job seeker and aren't on LinkedIn, you might as well be invisible because you aren't going to pop up when companies are looking for candidates.

And for employers, if you don't have an active online social media presence and aren't using LinkedIn to find candidates, you might as well be invisible because you don't exist to many qualified job seekers who are looking for companies that understand technology and are utilizing it to gain a competitive advantage. And you aren't going to be finding talent that can help your company.  

Several attendees were quick to note that some companies still needed some convincing about the utility of using social media for human resources purposes.  For example, many of them are fearful of the use of LinkedIn Recommendations. 

In tomorrow's post, I'll discuss the use of LinkedIn recommendations further and take a fresh look at the subject that I covered over the summer. 

in the meantime, the informal survey of HRA members shows that social networking has not only made inroads, but has definitely moved towards the mainstream.

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CORRECTED LINK

Over 100 people packed the Grand Courtroom of the Quinnipiac University School of Law last night to hear a panel presentation and discussion on the Ricci v. DeStefano case decided earlier this year by the United States Supreme Court.

The event, sponsored, in part by the Young Lawyers Section of the Connecticut Bar Association, provided some useful nuggets for practitioners and employers on the significance of the decision.

Attorney Karen Lee Torre (who represents the group of firefighters challenging the city's decision) and New Haven Corporation Counsel Victor Bolden (who represents the City of New Haven -- though he has only been in that position for seven months) both talked about what they thought the Ricci case would mean going forward and some of the history leading up to the decision as well. 

The discussion was taped for the CT-N network, which will replay it at times to be announced. 

I used Twitter last night to update people on the event and hit the highlights. Here are some of the tweets to give you a flavor:

• At the Ricci v DeStefano seminar, with counsel for parties. Real good crowd--over 100. Getting set for CT-N taping
• At seminar, Ricci atty says Alito's opinion meant most to her. Lots behind the scenes 'I can tell you it was dirty'
• Ricci atty: This was really about 'crude race mongering'
• Ricci atty: There wasn't a single precedent for the lower court's decision or supporting New Haven's rationale. SCOTUS was just applying law
• Ricci atty: My prediction is private e'ers will use test results without much problem; public e'ers still subject to political pressures
• New Haven Corp Counsel now speaking; emphasizes history of past discrimination & context of city's decision in Ricci
• New Haven atty: Court took disparate impact and treatment & pitted against each other; treatment trumps impact
• New Haven atty: What does Ricci mean for e'ers? Fuzzier answer figuring out the 'strong basis in evidence' standard - what's enough
• New Haven atty: Ricci decision gives a way to think about the right way for promotions
• Ricci atty: Court has told us what isn't 'strong basis in evidence' (stray remarks, experts)--but still some murkiness on what is
• Ricci atty predicts that the case will never be overturned and the Constitutional question (equal protection) will be decided in 5 yrs

Recent published reports stated that the parties are now working on a settlement to this matter.  But regardless, expect to hear more about this case for years to come as attorneys try to decipher the court's latest pronouncements on race discrimination..

(My thanks to Attorney Mark Dumas who also used Twitter from the event. You can find Mark's blog here.)

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Credit the Connecticut Bar Association Young Lawyers Section with landing all the major players in the Ricci v. DeStefano case for a panel discussion on August 18, 2009 at Quinnipiac University School of Lawl. 

Full program details are available at the CBA's website, including registration. 

The panel brings together both the attorney representing the firefighters (Karen Lee Torre) and the corporation counsel for the City of New Haven (Victor Bolden).  It starts at 5:30 p.m. and is open to the public.

The program is co-sponsored by several other bar associations, including the George Crawford Black Bar Association, Connecticut Hispanic Bar Association, Connecticut Asian Pacific American Bar Association and the South Asian Bar Association of Connecticut.

Sounds like an exciting free program. I hope to be able to make it and report back on it.

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Although I tipped my hand yesterday through some posts (here and here) and an interview with the Connecticut Law Tribune, here are some takeaways for employers from the Ricci v. DeStefano case.

1. The Decision Applies to Private Employers.   Before Ricci was decided, the case could've gone two ways -- it could have been based on constitutional (equal protection) grounds, or on statutory (Title VII -- the law prohibiting race and gender discrimination) grounds. The Court decided to go with the latter.  Why does that make a difference? Because Title VII applies to both private and public employers; if it had been decided on equal protection grounds, it would likely have applied only to public (governmental) employers.
    
2. Testing Will Never Be The Same.  Whether public or private, employers who use tests to assist them in hiring and promotional decisions get some guidance now in the area. Unfortunately, the guidance that the Supreme Court provides isn't particularly illuminating. Parsing things out, the court suggests that if a test is designed to be race-neutral, the fact that the numbers come out differently than an employer expects is not, in and of itself, enough to throw out the results of the test. There needs to be something more, some "strong evidence in fact". What that is remains to be seen.
   
   But supposing that an employer does accept the results of the test, can it defend itself from a disparate impact claim? The court says yes.  The court suggests that as long as an employer designs a test that is that is “job related for the position in question and consistent with business necessity” that might get the employer some traction in defending a claim of disparate impact.  Even in that case, however, the Court opens to the door to employees too: The employee can still win a disparate impact claim if the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.
   
   As a result, employers who use testing in particular will need to be able to rule out other alternatives that it might have used to make its hiring and promotional decisions. (Note: Title VII does contain specific provisions regarding testing as well so employers should not forget to look to the statutory language as well.) 
    
3. Affirmative Action Plans and Diversity Plans Are OK For Now. Maybe.  Some larger companies have programs now that try to ensure that the makeup of their workforce properly represents the makeup of the population.  For example, the employer may track "high potential" employees (particularly minorities) within their corporation to ensure that they receive proper consideration for promotions and opportunities.  Are these programs ok?
   
   The court suggests that it will allow for some affirmative action plans and notes that employer's "voluntary compliance efforts" are essential to the success of Title VII:
   "[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. ... "
   
   For employers, it suggests that you can review your policies and practices that ensure that minorities have a fair chance to succeed, but reinforces the view that you still cannot make your decisions to hire and promote based on race.  But how much "affirmative efforts" an employer can use, remains an unanswered question from Ricci.
    
4. Tread Cautiously In Conducting a Disparate Impact Analysis for Layoffs and Terminations.  One area that disparate impact claims arise is in the context of layoffs and reductions in force. For example, an employee may claim that the black workers were twice as likely to be laid off as white workers.   As a result, many employers have started to conduct a disparate impact analysis before the termination to see if the raw statistics are of concern.  If they are, employers sometimes reconsider their decisions or re-engineer the layoff criteria to remove such a disparate impact. In other cases, employers simply review the particularly data to ensure that the decisions were fair.  
   
   Ricci leaves open the question of whether that practice is legal under Title VII.  The court does suggest that the city "was not entitled to disregard the tests based solely on the racial disparity in the results".  Does this mean that employer -- once it settles on a process for terminations -- cannot change that system after it runs the numbers? At one point is the employer "stuck" with the results? That will likely be the subject of litigation at some point. 
    
5. Don't Expect This Law to Remain Static.  One thing is certain -- there are likely to be some more changes to this law in the years to come. One way is through Congressional action (as Senator Patrick Leahy has already suggested). Another way is through additional Supreme Court action. Indeed, Justice Scalia has suggested that there are battles yet to come on this issue:
   
                   [The] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.

As a reminder, I'll be participating in a free webinar next week on this subject. I anticipate that it'll focus on the practical implications of the decisions and additional steps that employers can take now to avoid becoming the next test case before the Court. 

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For a case out of little Connecticut, the Ricci v. DeStefano case today sure has drawn big interest. Seems like everyone has an opinion on the matter.

There are plenty of wrapups of the case out today. Many of them are, predictably, saying much of the same thing: Interesting case; probably applies to private employers; still waiting to see the impact.

For the mainstream local media approach, the Connecticut Law Tribune has two pieces here and here (I'm quoted in the latter).  The Hartford Courant's piece is here. For a slightly less-mainstream approach, the New Haven Independent's report has some good local feedback here and here.  And Slate magazine has some great "breakfast table" discussion pieces about the case in easy-to-understand language as well. 

But there are a few analytical pieces I've reviewed today that stand out and I thought I would highlight a few that break through the clutter.

I've been reviewing the decision today as well and will have some additional thoughts (with action steps for employers) in an upcoming post.

• Walter Olson, whose Overlawyered blog is celebrating TEN years this week (amazing, eh?) has a piece in Forbes.com entitled, appropriately, "Sued If You Do, Sued If You Don't".  Walter seems to have gotten to the bottom of things -- the court was troubled by the prospect of an employer who basically says "trust me" when it provides its rationale for its decision, when the truth behind the decision is far less clear:

Monday's crucial ruling is on the question: how serious does the prospect of litigation over an employment practice have to be before an employer is allowed to lean over in the opposite (discriminatory) direction to avoid liability? Justice Kennedy's majority rejected New Haven's contention that a "good faith" fear of liability should be enough, but also rejected the firefighters' contention that reverse discrimination could be justified only to avoid an outright collision between the two legal requirements. Instead, Justice Kennedy selected a middle ground: to discriminate against majority applicants, employers will need a "strong basis in evidence" that they otherwise "would have been liable."

Even now, The New York Times is no doubt preparing an editorial grimly portending the return of white supremacy at the hands of a callous Court. But the moral is probably a narrower one: If you're going to shaft white applicants, don't be as blatant about it as New Haven was. Kennedy was clearly angered by the after-the-fact disavowals and excuses by the city that, in his words, were "blatantly contradicted by the record." The Court is traditionally unsympathetic to employers that invent "pretextual" reasons for biased decision making; this time that principle happened to cut in an unexpected direction.

• The World of Work blog has its take on the decision and predicts something else -- a bill from Congress. In addition, the blog suggests that employers need not worry about the case (something that I disagree on, to a degree, as I'll discuss in an upcoming post):

Ultimately, the Ricci decision will have little to no impact on most employers, but represents a small victory for employers (despite the positioning here that held against the city/employer). Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists. The Ricci decision may not last for long, however. Political condemnation by Democrats has been swift, with Senator Patrick Leahy (D-VT) saying that "it is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces." Don't be surprised if Congress passes legislation down the road aimed at upending the Ricci decision.

• Michael Fox, at the always reliable, Jottings by an Employer's Lawyer, also highlights a little-discussed topic that I have also been thinking about today -- affirmative action plans.  He predicts that the decision could impact the way employers think about their affirmative action plans. 
• The professors at the Workplace Prof blog are, not surprisingly, hard at work trying to make sense of the decision as well. While some of the analysis is geared towards academics, they make a good point for employers: Title VII is going to be a mess to navigate.

The result is also going to make it difficult for employers to navigate Title VII, although maybe not more than it was before this decision. Employers will likely do nothing to evaluate their hiring or promotional processes until those processes have run their courses. There is very little incentive for employers to try avoid disparate impact liability any more than they would have before this decision, and more incentive not to change anything, just in case that change is itself discrimination.

I'm not necessarily sure I agree with this because it presumes that employers don't care about their employees or care about ensuring that their workplace is free from discrimination. Many employers already have systems in place to review their hiring and promotional practices; it's difficult to see why employers would simply dismantle these programs in light of Ricci.

• And lastly, I would be remiss if I didn't mention the excellent coverage by the SCOTUSBlog, which provides this analysis (with the rhetoric) today.  The likely result from Ricci? More litigation:

The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean. In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.

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The Supreme Court is expected to rule later this month on the controversial case of Ricci v. DeStefano, the case out of New Haven, Connecticut involving a group of white firefighters who have alleged discrimination by the city.

But what will happen after the court rules on the case?

That's the subject of an interesting post by the New Haven Independent today who talked with Linda Greenhouse, a former reporter for The New York Times who covered the U.S. Supreme Court for many years:

When the U.S. Supreme Court finally decides city firefighters’ fate this month, the wait for promotions probably won’t be over. It will likely return to Judge Janet Bond Arterton’s New Haven courtroom.

And it could take a while.

That’s the most likely scenario of several sketched out by a leading Supreme Court expert, Linda Greenhouse, when asked about Ricci v. DeStefano. The court is to issue a decision before its term ends in late June.

Greenhouse predicts that those expecting a quick outcome are going to be disappointed:

“Folks in New Haven who are expecting a clear ruling out of this, may be quite surprised,” said Greenhouse. Greenhouse covered the former Supreme Court for The New York Times for 30 years; she won a Pulitzer Prize doing it. She is now a faculty member at the Yale Law School.

“It may leave them as confused as they’ve been all along,” Greenhouse predicted.

Because the case has also been a lightning rod for criticism for Supreme Court nominee Sonia Sotomayor, expect to hear lots more about it in the weeks to come.

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Over the last 24 hours, much virtual ink has been spilled on a case pending before the U.S. Supreme Court, Ricci v. DeStefano, because Judge Sonia Sotomayor -- one of the judges handling the case at the Court of Appeals -- has been nominated to the Court. (I've covered the case in various posts here.)  From a Connecticut perspective, the Hartford Courant does its own recap here.

The question, frankly, is why such a fuss? 

Back in September 2006, U.S. District Court Judge Janet Arterton issued a lengthy opinion in which she dismissed the firefighters reverse discrimination claims and found for the city of New Haven.  Judge Arterton is no stranger to employment law cases, having represented mainly employees in private practice before getting appointed to the bench.  The decision is well worth the read.  Reasonable people can disagree with the outcome, but Judge Arterton's decision hardly lacks logic or thorough reasoning. 

The firefighters appealed and the case went up to the Second Circuit.  Judge Sotomayor was one of three Second Circuit judges selected to serve on a panel to hear the case.  In the summer of 2008, she and two other judges decided to affirm the district court's decision. 

The two other judges, Judges Pooler and Sack, and Judge Sotomayor all agreed that they did not have anything to add to Judge Arternon's decision so they issued a "per curiam" opinion which, in essence, adopted the lower court's reasoning.  (I should note that they original issued a summary order on the case, later turning it into a "per curiam" decision.  Summary orders are quite commonly used in the Second Circuit).  While not an everyday occurrence, it's not uncommon for courts to use "per curiam" decisions either.  (Of course, perhaps the most famous "per curiam" decision was in Bush v. Gore, but that's an argument for another day.)   

Here was the essence of the the Second Circuit's decision:

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

The firefighters appealed to the Second Circuit again, asking the entire court to hear the case en banc (meaning that all 13 judges would hear the case). That request was rejected by a 7-6 margin and featured a spirited dissent by Judge Cabranes. 

The case now is pending before the U.S. Supreme Court where another split decision is expected.

The attack on Judge Sotomayor from some on the Ricci case seems to focus on the fact that she and two other judges decided to dismiss the claim in a "per curiam" decision, rather than in a lengthy one. However, there are many reasons why a case might be decided in that fashion and to attribute and speculate as to the reasons it was used in the Ricci case seems to be reaching for an argument that might not otherwise exist.  And regardless, there were many other judges in the Second Circuit who did not believe the case warranted any further decision either as determined by the en banc vote.  Are all of them disqualifed from serving on the Second Circuit too?

Some critics have gone even further, claiming that her decision in the Ricci case showed that she "reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety." 

All of these critcisms of Judge Sotomayor seem to be a reach for an argument that doesn't really seem to exist based on her handling of the Ricci case. And it certainly doesn't suggest that she is unqualifed to serve on the U.S. Supreme Court. After all, if the Supreme Court rules in favor of the city, does that mean that the justices are also "reading racial preferences and quotas into the Constitution"? The answer is obvious: No.

So, what are we ultimately to make of the Ricci case? In my view, not much.  It is, quite simply, a difficult decision in which very bright people can disagree.  And judges don't get to pick and choose the cases they are asked to judge. 

As the Workplace Prof succienctly said last month, "One of the reasons that this case is so challenging and so divisive is that this case seems to be all about the framing of the issue. It is very difficult to separate that framing from the factual question of the parties’ subjective intent or the credibility question of whether to believe their assertions. The way that the facts and law get merged together make for a doctrinal mess. It seems like people talk past each other constantly."

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In the next month or so, the U.S. Supreme Court is expected to issue its decision (or multiple decisions) in the Ricci v. DeStefano matter (for background, see my prior posts here).

In the meantime, other bloggers and writers have been adding their views to fill out the spectrum. 

On the Talking Points Memo site, one thoughtful post suggests that the lower courts got it right in finding that there was no discrimination.

On the Connecticut Employee Rights blog, Rick Hayber hopes the Supreme Court "gets it right":

I do not believe that New Haven refused to promote Mr. Ricci because he is white. I believe that it simply concluded that the test must have been biased. If true, this is simply not discrimination. Lets hope the Supreme Court gets it right!

The Connecticut Law Tribune also has this recap of the case so far.

Lastly, the SCOTUSblog has this thorough recap of oral argument.

Stay tuned. This one promises to be interesting.

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If only all trial and deposition transcripts happened this quickly....

The Supreme Court held oral argument in the Ricci v. DeStefano case earlier today. The transcript is now available here. 

The Workplace Prof has the snap judgment which seems pretty on point from my initial scans:

I've skimmed it enough to see that there's a lot there to digest more fully. My initial impression is that the court seemed to divide along familiar lines with Ginsburg, Souter, Stevens, and Breyer questioning the petitioners fairly heavily, and Roberts, Scalia, and Alito questioning the respondents closely. Kennedy questioned both sides about equally, and Thomas was characteristically quiet. 

Most of the argument seemed to focus on whether the decision not to certify the test was race discrimination or simply racial consciousness and what kinds of evidence an employer would need to have before it could act in this manner.

There's lots to be fascinated by in the transcript, but one exchange with Chief Justice Roberts stood up on my first glance. He asks the U.S. Government whether the promotion of diversity can be a compelling state interest in employment decisions.  While he asks for a yes or no answer, the following exchange happened:

MR. KNEEDLER: We think -- we think it probably is a compelling state interest, but it is not one that -- that can be advanced by race -- by racial classifications. And that -- and that is our basic submission here. ...
CHIEF JUSTICE ROBERTS: Can it be advanced by taking actions to avoid what is perceived as a disparate impact?
MR. KNEEDLER: Yes.

But whether the public employer can take action on that seems to be where the court is struggling with in the exchange that follows:

CHIEF JUSTICE ROBERTS: In other words, the disparate impact is regarded as something you can intentionally respond to by drawing racial distinctions solely because you would like a more diverse workforce?
MR. KNEEDLER: No, not drawing racial distinctions. That's our -- this -- the employer's response here did not draw racial distinctions. It did not say so many black firefighters would be promoted --
CHIEF JUSTICE ROBERTS: It didn't care --
MR. KNEEDLER: -- and so many white --
CHIEF JUSTICE ROBERTS: It didn't care -- it had to draw racial distinctions because it looked at the test and said, we think there's a problem because of the racial makeup of who's going to get the promotions.

But whatever the result, the decision isn't an easy one to resolve since it puts two competing interests "at war" with each other, as Justice Scalia stated at oral argument.  

The court will, however, resolve this one way or another.  A decision is expected before June.

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The U.S. Supreme Court today agreed to consider the case of New Haven, Connecticut firefighers who alleged reverse discrimination when the city denied them promotions despite high test scores, ostensibly out of fears that the test may have discriminated against minority applicants.  

I've covered the case, Ricci v. DeStefano, previously here and here, and will post more about it in the upcoming days. But you may be wondering what the specific question is that the court will consider.

The court accepted the case to decide the following question:

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination.

The case challenges the very notion of an employer who, ostensibly, is trying to do the "right" thing by preventing a claim of race discrimination from occurring, but by doing so, impacts white employees.  Workplace Prof blog recently discussed this conundrum that arises in this situation:

This case is a very important one, but a really difficult one, too, that goes to the heart of our notions of discrimination and the meaning of Title VII. Essentially, this brings up the usual debate about whether affirmative action is race discrimination, and if so, whether it should be illegal. But this case adds a wrinkle that brings the whole system of Title VII into doubt. Here, the City argues that it believed in good faith that the promotion process would violate Title VII by creating a disparate impact. The plaintiffs dispute that, saying that the City was motivated by politics and race, but they further argue that even if the City did in good faith believe that it was avoiding a disparate impact claim, that should be no defense to a disparate treatment claim.

So, is a decision not to create a disparate impact really race discrimination in disguise? I think the answer to that is complicated. Every decision not to use a particular criteria because it has an impact on a particular group is necessarily considering that group's status. So in one sense, yes, there is a consideration of status in there somewhere. On the other hand, does that mean that employers must continue to use criteria that they know have a disparate impact unless that use is challenged and a court validates some other criterion? That seems an odd result.

It's much too early to predict the outcome; we'll have to first read the tea leaves at oral argument. But regardless, I would expect a deeply divided decision by the Court. After all, this issue caused severe fractures in the Second Circuit when it was originally decided.

The firefighters' brief is due February 19, 2009 and the City's response is due March 18, 2009. A decision is expected before the end of the Court's term in June.

(H/T Workplace Prof, SCOTUSBlog)

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Ed: Updated to reflect newer posts and correct style

There are many employment lawyers who subscribe to the belief that "No Good Deed Goes Unpunished".  A case out of Connecticut and the Second Circuit this month certainly won't change that perception.  Indeed, although the case may have political undertones, it sets up a classic factual case of an employer who apparently tries to do the right thing and STILL gets sued for their actions.  Ultimately, the Second Circuit has affirmed that the employer did not violate the law but the issue still remains far from settled. 

Here's the basic facts and background of Ricci v. DeStefano:

In March 2004, New Haven, Connecticut Fire Department held two promotional exams for the positions of Lieutenant and Captain.  However, the New Haven Civil Service Board (“CSB”) refused to certify the results of those exams because statistically, the test results showed that the test may have had a disparate impact on African-Americans. 

A group of seventeen white candidates and one Hispanic candidates who took the promotional exams sued.  These candidates fared fared very well on the test but did not receive a promotion because without the CSB’s certification of the test results, the promotional process could not proceed.

The Plaintiffs asserted that the refusal to certify the examination results violated their rights under Title VII and the Equal Protection Clause. In 2006, the District Court of Connecticut granted New Haven's motion for summary judgment (decision here) -- effectively dismissing  the case. 

CSB officials said, in their papers, that the reason they refused to certify the results is their desire to comply with the letter and the spirit of Title VII. The District Court noted that "Plaintiffs deride this 'feigned desire to ‘comply’ with Title VII,' arguing that defendants in fact violated that statute, and their actions were a mere pretext for promoting the interests of African-American firefighters and political supporters of the mayor. "

What is noteworthy, as the lower court pointed out, is that the case presents "the opposite
scenario of the usual challenge to an employment or promotional examination, as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants’ reason for
their refusal to use the results.  

Ultimately, the District Court said that Plaintiffs' contention that "diversity" is a code word for reverse discrimination did not have merit.  The employer here was trying to do right by not using a test that had a disparate impact and the Court was unwilling to suggest that the employer's decision was incorrect.  The factual circumstances, as I've said before, are much more complex than that and I encourage readers to review the entire decision.

Of course, the Plaintiffs appealed. The Second Circuit last week affirmed the decision in a brief per curiam decision (available here).  The Court noted that the CSB "found itself in the unfortunate position of having no good alternatives."  

And while the court said it was "unsympathetic to the plaintiffs’ expression of frustration", the Court said that CSB was "simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact".   As such, its actions were protected. 

End of story, right?

Well, not quite.  Later in the week, the Second Circuit considered, but ultimately rejected a rehearing "in banc" (meaning a decision in front of all of the Second Circuit judges, not just a three judge panel).  The Wait a Second Blog explains the procedural mess in further detail in a post here.  What is unusual is that the decisions either concurring or dissenting in the decision to rehear the case in banc are lengthy and reveal a deeply divided Second Circuit. 

Indeed, the dissent noted that the Second Circuit has done a disservice by not publishing a full opinion on the subject and instead hiding behind a short "per curiam" opinion.  Ultimately, the dissent views the issue as one of "great importance" and believes that full consideration by the Second Circuit -- or at least a more detailed decision -- is warranted.  Certainly, the next time this issue is before the Second Circuit, we can expect more fireworks depending on the panel makeup.

The Plaintiffs here have petitioned the Supreme Court to grant certiorari in this case. It certainly merits further watching.   I would expect a ruling from the Supreme Court on whether to grant certiorari in fall of 2008. 

For employers, this case demonstrates the problem that companies face all the time. Typically, a decision affecting one employee, will leave another unhappy.  And even when the employer is trying to do the "right" thing by complying with Title VII (even if there is political overtones) they still could face a lawsuit by a group of employees unhappy with the decision.  Strict compliance with the law and getting sound legal advice is the best strategy for avoiding the minefields that continue to exist in this area.

UPDATE: Point of Law was kind enough to pick up on the post and credit should be given to their initial post on the subject late last week (which I was just tipped off to).  There are also other blog posts on the subject here,  here and here as well. 

FURTHER UPDATE 6/17: Wait a Second has an update this afternoon about another dissenting opinion released today by Second Circuit Chief Judge Dennis Jacobs.  From a legal procedural perspective, it's interesting to see the "catfight" going on at the Court of Appeals. But from employment law perspective, it doesn't really affect the underlying decision.

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As one blogger posted over the weekend: Its tough to try employment cases around Christmas time. Just ask the City of New Haven.

Late last week, a jury in the Superior Court jury awarded $500,000 to a man who was turned down for a job in the city public works department.  He never actually lost his job, mind you.  But  The New Haven Independent has the details in a report:

Wrapping up a trial in New Haven Superior Court Wednesday, a jury found that members of the city public works department violated the constitutional rights of Casper Vollero Jr. when they turned him down for a laborer position in 2003. Vollero, who is white and lives in North Haven, filed an age and race discrimination suit after he was passed over for the job in favor of two younger black and Hispanic applicants.

Vollero, who’s 63, wept in relief upon hearing the verdict, according to his attorney, Diane Polan.... Vollero currently works for the city parks department. ...

“In this case, the jury found that Mr. Vollero was the victim of illegal race discrimination because the Public Works department maintained an unwritten quota system, in which one-third of the jobs went to white applicants, one-third went to black applicants and one-third went to Hispanic applicants,” Polan wrote in a press statement.

For the record, the City denied the charges and indicated it will appeal in this report from AP report:

City spokeswoman Jessica Mayorga called the verdict ``an egregious ruling.''
   
``We do not agree with the judgment, and we believe the amount is excessive. We will appeal the decision,'' Mayorga said.

Because the employee does not appear to have been fired, the amount of his damages -- mainly compensatory (pain and suffering) and punitive damages -- is certainly high.  However, because the Superior Court dockets are not available online, its difficult to find out additional specifics at this time.

Nonetheless, the decision highlights another important point for employers engaged in litigation: Juries can be unpredictable. Even cases that do not appear to have any significant financial value can turn into significant cases in front of juries. 

Thus, in employment matters, anytime you, as an employer, are willing to "go to court to prove our point", just be prepared to take your lumps if the jury disagrees with you. 

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