News outlets this morning reported that the plaintiffs (a group of firefighters in New Haven) in the Ricci v. DeStefano reverse discrimination case were awarded damages of about $2 million (plus attorneys fees of $3 million).

What the reports don’t really get into, however, is exactly how that has come about. Turns out that the plaintiffs accepted offers of judgment from the city of New Haven.

You can download all of these papers in various filings here, here, here, here, here, here, here, here, here, here, here, here,  and here. You can download the omnibus paper here.

Once the court acts on these offers of judgment, the case will draw to a quick close after many years of litigation.

Haven’t we heard this before?

A Bourne, Massachusetts firefighter was recently fired for — imagine this — his Facebook posts in which he  "allegedly railed against [a] police officer over some incident, angrily carried on about being forced to work on the Fourth of July holiday and  made a homosexual slur", according to press reports.

The posts could not be viewed by the public and the union is said to be appealing the decision saying that, among other things, it violated the First Amendment rights of the 17-year firefighter veteran.

By my count, I’ve written over 40 posts that touch on Facebook, and by now, they all seem to have a familiar ring to them. Employee says some inappropriate things on a site that he believes (rightly or wrongly) is private. Another person forwards it on to the employee’s boss. Employee’s boss (typically someone who isn’t on Facebook) reacts with an immediate firing.  Media whips into a frenzy. 

For employers, there’s several things to worry about. First, because the exact parameters of the law are still being fleshed out, a firing over a Facebook post — particularly for a public employer — could lead to legal action. But second, and even more ominously, such a firing risks a media firestorm. 

That’s not to say that such a firing isn’t legal — it may be particularly if your policies and guidelines cover such conduct. But being legal and PROVING that it’s legal are two different — and costly — things.   Before you take action, make sure you understand the consequences that may now develop. 

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.

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. 

Yesterday, a group of black firefighters filed a motion to intervene in the Ricci v. DeStefano case claiming their rights will be "irrevocably impaired " if they aren’t allowed to join in the case.  You can download the motion and the accompanying memorandum of law here

The motion was not unexpected though I’m not sure anyone expected it so soon.

Last Friday, for example, The New Haven Register reported on a new batch of discrimination claims filed at the EEOC on behalf of seven black firefighters who claimed that if the Ricci v. DeStefano lawsuit were to proceed with a trial and the test results certified, it would harm minorities in the job ranks. These firefighters are the ones that have now sought intervention. The black firefighters’ claims are separate and apart from another claim brought by firefighter Michael Briscoe, who is also challenging the decision

As I pointed out in my earlier post and in the article, these claims face a big hurdle to overcome in light of the Supreme Court’s language about how courts should dispose of such claims against New Haven if they were to be brought.  You can download one of the claims directly here.

To overcome the Supreme Court’s language, they claim that they are primarily claiming that they have been treated in a discriminatory fashion, and not merely impacted in a discriminatory way. They also claim that the Supreme Court’s language was merely dictum and not binding on future courts.

How the District Court treats this new filing will no doubt be the subject of lots of speculation in the upcoming days but it is clear that despite efforts by the Ricci parties to work towards a resolution, the case is far from being concluded in one form or another. 

In the meantime, the actual parties in the Ricci v. DeStefano case prepared proposed orders for the District Court to use to implement the decision of the Supreme Court.  You can download them here and here

The parties will now 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.  

 

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)

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.

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. 

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.

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.

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.

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.

A further read-through of the Ricci v. DeStefano case today has reinforced my view that there are going to be some real lessons learned for employers out of this case.  The case had the potential of being a very narrow decision which would have minimized the impact to employers. However, because the court addresses head-on various Title VII issues, it’s likely to creep into much larger issues and it’s not out of the question to see it impact affirmative action plans or diversity programs.

Because of that, I’ve decided to spend a good deal of time discussing this case and the impact on employers in Connecticut and beyond in a webinar scheduled for July 8th at noon EDT.  You can register for it for free here.  Space will be limited so be sure to sign up today. 

In this session, I anticipate we’ll discuss::

— The basics of Title VII and how it applies to employers
— The differences between "disparate impact" and "disparate treatment" claims
— How employers should deal with the use of tests in the workplace and what it is permissible to do when the test results seem "off"

— What the lessons are to be learned from Ricci, and steps employers can take to avoid reverse discrimination claims in the future

— What is "reverse" discrimination and whether employers need to be concerned about such claims

— What the impact this decision will have on affirmative action plans and diversity programs

As time permits, we will also wrap up the other Supreme Court employment law decisions in the 2008-09 term and the takeaway for employers in each of those cases, including an important age discrimination case.

Looking forward to having you all join us.