reverse discrimination

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

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.

On Wednesday, I posted about a recent District Court decision that held that "Paid Administrative Leave" is not an "adverse employment action.".  Without such an action, an employee typically cannot raise a claim of discrimination under the legal framework for analyzing such claims.

The same district court judge, The Honorable Mark Kravitz, released a decision a few days later also tackling that the subject of what whether a company’s failure to fill a posted position with any employee can give rise to a discrimination claim.  Ultimately, the court concluded that it was not.

The case, Roncallo v. Sikorsky Aircraft Corp. (download here) is not your typical Title VII case. Indeed, the plaintiff is a white male who claims, in part, that the company chose not to fill a posted position (which would have given him a promotion) because there were not enough diverse candidates that either applied or were qualified.

Ultimately, the court concluded that:

Although the fact that the company decided to close the position following [a manager’s] recommendation of four white male candidates may be sufficient to give rise to "speculation and conjecture," it is not sufficient to defeat Sikorsky’s lawful explanation for its action or to support an ultimate inference of unlawful discrimination.

Indeed, while the court’s final decision rested on this ground, it pointed out other issues with the Plaintiff’s case too. For example, of the twenty similar-level positions posted in the plaintiff’s division in 2008, seven were also left unfilled and twelve were filled with white males.  Those statistics, obviously, hardly show a bias against white males.

 

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. 

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.  

 

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.)

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.