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.

Last week, a federal district court in Connecticut held that the Department of Corrections violated federal law in instituting a discriminatory physical fitness test that created a disparate impact on women.  It also found that the test was not job-related or necessary.  

In doing so, the court granted summary judgment to the employee and the class of similarly situated job applicants. 

In Easterling v. State of Connecticut (download here), a federal district court held that a requirement that women candidates for promotion be required to complete a 1.5 mile run test was not a necessary job requirement.  

This "disparate impact" case may have important ramifications, particularly if upheld on appeal.

First, the decision relies extensively on the use of statistical evidence. Here the court said that 55% of women passed the test, while 79% of men did.  Thus, the ratio of female passage rate compared to male was 70.6%.  But the court emphasized that the party must still show a cause link.

In doing so, the court first looked at the "four-fifths" rule (or 80 percent) and stated that anything greater than that will typically not be regarded as evidence of an adverse impact.  It is not an automatic rule, but will depend on the circumstances.

The court also said that the second method of establishing causation is a statistical test that "measures that observed differences in outcomes between two groups are attributable to random variation".  The disparity must be typically exceed "two standard deviations".  What does that mean? In plain English it means that there is only a 5% probability that the variance is due to chance at "two standard deviations".  

Second, the case also calls into question the use of some types of physical fitness tests for jobs. Employers who use such tests should consider consulting with counsel about whether the test has a disparate impact and whether the test is necessary at all.  The Court’s decision explains at length that there is a "complex" legal history involved. 

As a practical matter, the case is also notable because it is the very rare case in which the court will grant an employee’s motion for summary judgment.

What’s the Takeaway for Employers?

  • Consider reviewing any physical fitness tests you may institute and consider involving counsel in a review to ensure that such tests do not have a disparate impact on a protected group
  • If such tests are being used, ensure that they are truly "job-related"; consider revising the test to just those elements that can meet the legitimate business expectations of the position
  • If you believe that something might have a disparate impact, don’t rely on the raw numbers; consider the involvement of a statistical expert who can help you better understand items just as the "four fifths" rule or the "two standard deviations". 

Easterling

Been a busy week so there’s time only for a few things to some recent and upcoming publications, podcasts and radio shows that I’m involved with.  My thanks to the respective producers or reporters for the opportunity.

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. 

2009 will not go down as the most exciting year for employment law. There were a number of "honorable mentions" for items that have had an impact, but nothing — in my view really stands out.

I suppose for Connecticut, the Ricci v. DeStefano case has to be put up at the top of the list of noteworthy developments. After all, it’s rare that a case from the Constitution State gets heard in front of the nation’s highest court and even rarer that it is an employment case.

But six months after the case was decided, I still have a hard time seeing any wide-ranging impacts from the decision for private employers.  And frankly, I still think the case only drew the attention it did because of the nomination of Sonia Sotomayor (who was involved in the decision at the Second Circuit stage) to the U.S. Supreme Court.

As for the some other Supreme Court cases, the one that could stand out is Gross v. FBL Financial Service case — which addresses the burden of proof in age discrimination cases — have yet to explored fully and may be overturned by legislation in any event.  

I would argue that the biggest development for employment law isn’t a case or a new law, but the incorporation and adoption of social media — both in policy and usage.  It seems like every week or two, I’ve been asked to give a presentation or comment on an article on the topic.  In fact, a webinar I did earlier this year drew the highest attendance for any of our webinars.

But because social media wasn’t developed in 2009 and is really impacting life in so many different ways, I’m taking it out of the running for the biggest employment law story for 2009.

Other potential nominees for important employment law developments are:

  • The Lilly Ledbetter Fair Pay Act — But as I suggested last January, the impact of this new legislation has been limited. 
  • The FMLA amended regulations – Again, this had the potential to shake things up, but considering Connecticut has its own set of rules that haven’t been amended, all its done is create more headaches for employers
  • Employee Free Choice Act – This bill — which would get rid of some secret ballot union elections and institute mandatory arbitration for some initial collective bargaining agreements — has been on the table for much of 2009. If passed, it could have a large impact on employers in Connecticut and nation-wide. But so far, the votes haven’t been there.
  • The COBRA subsidy (and extension) – This was more of an administrative burden than anything else and while you could argue with the means that the government used, the intent — making sure that people did not lose their health insurance — was certainly laudable.  And with new health care legislation now looking like a reality, we’ll see whether revisions to COBRA are further discussed.   
  • GINA – The effective date for GINA was mid November 2009 and the government started to release new regulations enforcing GINA (which prohibits genetic discrimination in employmen).  But (yawn) here in Connecticut we’ve had that type of law for years. No big deal or change.  

(The Delaware Employment Law Blog shares its top 10 list, and the Ohio Employer’s Law Blog is doing the same for other issues.) 

What does 2010 hold in store? I’ll save that for another day….

For those who can’t get enough of the Ricci v. DeStefano matter — you know, the Supreme Court case involving a group of 20 firefighters from New Haven — the Connecticut Law Tribune this week offers up a profile of the attorney for the plaintiffs, Karen Lee Torre. 

But those hoping for a second act from her may have to wait a little longer as she has cut back on her legal work:

Following the Ricci decision, Torre says she has received numerous job offers asking her to become a lobbyist or a spokesperson for special interest groups. While she has turned down those offers, she has agreed to be a consultant on about a half-dozen cases around the country involving claims of reverse discrimination.

At the same time, litigating Ricci has worn down Torre to the point that she is going into semi-retirement for the time being.

“Ricci was a fabulous experience and my most personally rewarding experience,” she said. “But it made me want to leave the practice of law, and I don’t know what’s next.”

Those who know Torre either love or hate her. There is no in-between. An exchange last year between Torre and the CHRO led to heated exchange of words and is certainly an example of the love/hate relationship she has with some. (And heaven knows that her views on the ABA are far from enlightened). 

But she has done what many attorneys dream of doing: Winning a case before the U.S. Supreme Court on behalf of clients that she believes in.

And even she realizes that nothing else she does in the legal profession may match that. 

“This year has been the most incredible year of my career,” Torre said last week. “Nothing in the past compares to it and nothing in the future will compare to it.”

 

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.