Canberra_firefighters_e1.jpg, Peter VDW (2008)
You may remember the case about the firefighter promotion exams in New Haven, Conn. that went to the U.S. Supreme Court. In that case, Ricci v. Stefano, the City of New Haven and its Civil Service Board (“CSB”) were concerned that white firefighter candidates outperformed minority candidates on the exams, and that the test results would cause New Haven to be held liable for “disparate impact liability” under Title VII of the Civil Rights Law. Employers can be subject to disparate impact liability when they use employment practices that appear to be neutral and non-discriminatory (commonly referred to as “facially neutral”), but whose effect or application is actually discriminatory. Title VII of the Civil Rights Law prohibits employment discrimination based on race, color, religion, sex or national origin.
Ultimately, the CSB discarded the test results due to its concern that the test would be deemed discriminatory. 18 firefighters (17 white and 1 Hispanic) challenged that action, arguing that the CSB’s refusal to certify the test results resulted in disparate treatment against the 18 firefighters under Title VII. Ultimately, the U.S. Supreme Court agreed with the firefighters and ordered the City of New Haven to certify the results.
Enter Michael Briscoe, an African-American New Haven firefighter, who said that because the New Haven exams were arbitrarily weighted, they resulted in an unlawful disparate impact on him. According to Mr. Briscoe, the test was designed so that 60% was written and 40% was oral, when the industry norm was 30%/70%. He asked the court to stop the city from using the 60/40 weighting and to be eligible for a promotion (to which he would be entitled if the 30/70 approach was used) with retroactive pay and seniority, but without displacing any of the firefighters who were already promoted. The federal judge in Connecticut ruled that Briscoe’s lawsuit couldn’t go forward because the Supreme Court said the test results should be used. Mr. Briscoe appealed that decision to the Second Circuit Court of Appeals.
The Second Circuit said that Mr. Briscoe could proceed with his lawsuit and that the other firefighters would keep their promotions. Unless Mr. Briscoe can show that New Haven refused to use an alternative employment practice that would reduce the disparate impact of the test on him, New Haven only needs to demonstrate that the test is “job related” and “consistent with business necessity”. It’s important to keep these principles in mind if you think you have an employment discrimination claim.
We’ll watch this case and report on the outcome.
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Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.