The Second Circuit today reinstated claims brought by a black firefighter against the City of New Haven alleging that he was unfairly denied promotion to the position of lieutenant because of the city’s scoring of a 2003 promotional exam.  (I covered the original lawsuit back in 2009 here.)

The decision in Briscoe v. City of New Haven (download here) today found that the Supreme Court’s ruling in Ricci v. DeStefano — which seemed to predict (and preclude) a lawsuit like this — did not preclude this lawsuit.

As you may recall, the Ricci decision ordered New Haven to certify the results of a test; that test was not used for promotions resulting in the lawsuit by a group of white firefighters who claimed that the city discriminated against them when it decided not to use the test.

Now the test — which allegedly showed a disparate impact against black testtakers — is being challenged by a black firefighter. The Supreme Court suggested that such a lawsuit should fail:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

But the Second Circuit said that this language was not controlling and was inconsistent with the rest of the Supreme Court’s findings regarding distinctions between disparate impact and disparate treatment.  In essence, the court said that the City of New Haven ought to have predicted this even before the Supreme Court decided the issue.

We are sympathetic to the effect that this outcome has on the city, which has duly certified the test as ordered by the Supreme Court but now must defend a disparate-impact suit. The City of Birmingham faced the same issue in Martin. Any employer that intentionally discriminates–thinking there is a strong basis in evidence of disparate impact liability–will face the same issue if it loses a disparate impact suit.

The solutions already exist. First, an employer can seek to join all interested parties as required parties. See Fed. R. Civ. P. 19. The interested parties here were readily identifiable: The city could have joined all test takers prior to the district court’s original decision. If Briscoe had been a party, the Supreme Court’s decision would have precluded this suit. Second, an employer can use the expedient provided by Congress, 42 U.S.C. § 2000e-2(n). The city could have moved, prior to the district court’s original ruling, for compliance with the notice and opportunity-to-object requirements of § 2000e-2(n), which would have permitted the litigated judgment to have preclusive effect even over nonparties.

Expect to hear much more about this decision in the upcoming days as it leads to the practical result that both the white AND black firefighters have filed suit based on the same test.

For other employers, the takeaway from this case is that nothing is as simple as it might first appear. When faced with disparate impact lawsuits, think about all the parties who might be affected by the decision and consider bringing them in.   It is truly hard to fault the City of New Haven here; the Ricci case took on a life of its own. But future employers are now on notice that you may not have to worry about the first lawsuit; its the second one that you weren’t expecting that causes the most headaches.

Briscoe v. City of New Haven

Well, that didn’t take too long.

Just a few months after the U.S. Supreme Court’s ruling in Ricci v. DeStefano, a black firefighter filed suit yesterday in U.S. District Court alleging that he was unfairly denied promotion to the position of lieutenant because of the city’s scoring of a 2003 promotional exam. 

You can download the complaint here

The case (H/T New Haven Independent) "alleges that the city weighs the oral and written components of the exam differently from how other cities do, in a way that has a disparate impact on African-Americans and resulted in Briscoe being denied promotion."

A lawsuit like this was certainly expected at some point or another.  It was just a question of when. The larger question, however, is what will happen next. After all the Supreme Court, in its Ricci decision, suggested a suit like this might occur and offered a possible defense:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

This language suggests that the City may indeed have a fair strong defense to this lawsuit but still, it will no doubt be litigating it for some time to come.  There will also be issues of statutes of limitations that may also pop up.

Although the spotlight has turned away from the Ricci case after Justice Sotomayor’s confirmation, this new lawsuit (and potentially others coming) signal a continuation of a drama that has yet to have its final act written.

(Further H/T CT News Junkie)