Supreme Court Issues Ruling In Firefighter Reverse Discrimination

The Supreme Court on Monday appeared sympathetic to a retired Florida firefighter who is seeking to sue her former employer under the Americans with Disabilities Act. Karyn Stanley, who worked for the fire department in Sanford, Fla., for two decades before Parkinson’s disease forced her to retire at the age of 47, contends that the city violated the law when... But some justices questioned whether Stanley’s best argument was one that they could consider at all, while at least two justices – Neil Gorsuch and Amy Coney Barrett – remained silent, making it difficult... A federal appeals court in Atlanta ruled that Stanley could not bring her claim under the Americans with Disabilities Act because she did not work for the city when her retirement benefits were terminated. Stanley’s lawyer, Deepak Gupta, on Monday urged the justices to reverse that ruling. He told the justices that Stanley had “at least two paths” to victory.

The “narrow path,” he argued, is to rule that Stanley can sue because she is alleging that she was the victim of discrimination while she was still employed by the city: She began working... From 2016 to 2018, Gupta explained, Stanley “was subject to a policy that she alleges reduced her compensation in a discriminatory manner.” Frederick Liu, an assistant to the U.S. solicitor general who argued as a “friend of the court” on behalf of the Biden administration, echoed this argument. He told the justices that “the most straightforward path” for Stanley’s lawsuit to proceed “lies in the period after she was diagnosed with Parkinson’s disease but before she retired.” Stanley’s second and “broader” path to victory, Gupta added, would be for the court to hold that “former employees may challenge post-employment discrimination.” Otherwise, he emphasized, “the ADA’s protection for these benefits” would “mean...

The City of New Haven’s failure to use test results that would have disqualified any African American firefighters from receiving a promotion was discriminatory against the white and Hispanic test takers who received qualifying... Supreme Court in Ricci v. DeStefano. (pdf) In this closely decided and much-anticipated decision, the Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer... In 2003, the City of New Haven, Connecticut issued promotion-qualifying exams to 118 firefighters, as required by union contract. After certifying the test results, the City – pursuant to a municipal regulation – was to promote from the group receiving the top three scores.

The City decided against certifying the test scores, however, after it was determined that no African American and only two Hispanic applicants qualified for an immediate promotion. The rationale for failing to certify the results was that the City would subject itself to claims of disparate impact race discrimination under Title VII of the Civil Rights Act. The 17 white and two Hispanic firefighters who comprised the pool of applicants earning the three highest exam scores – and thus would have been among those eligible to receive promotions had the results... These plaintiffs argued that the City’s failure to certify the results violated Title VII’s prohibition on racially-based disparate treatment, as well as the Constitution’s Equal Protection clause. The district court granted the City’s motion for summary judgment, finding that the City lawfully acted to insulate itself from charges of disparate impact discrimination. On appeal, a three-judge panel of the U.S.

Court of Appeals for the Second Circuit affirmed the lower court’s decision. Judge Sonia Sotomayor – President Obama’s pick to replace Justice David Souter on the U.S. Supreme Court – was a member of that panel. The Second Circuit subsequently voted 7-6 to deny a rehearing en banc. In a 5-4 decision, the U.S. Supreme Court reversed and remanded.

Title VII of the Civil Rights Act prohibits both direct discrimination (disparate treatment) and in certain circumstances indirect discrimination (disparate impact). In the second scenario, an employer’s facially neutral act that has a disproportionate adverse effect on members of a protected class can be deemed discriminatory unless the employer can show that the action causing... If such a showing is made, an employee can argue that the employer can use alternative means of achieving the same ends that will have less of a discriminatory impact. In the instant case, the City argued that its intent to avoid a disparate impact claim was a justifiable reason for throwing out the test results, even though doing so resulted in an act... The Supreme Court examined the interplay between the disparate treatment and impact language in Title VII, which makes it unlawful for employers to use employment practices that “that are fair in form, but discriminatory... In reconciling these Title VII provisions, the Court held that the appropriate standard to use is the “strong basis in evidence standard” used in the context of Constitutional challenges to government actions to remedy...

In essence, before engaging in an act for the purpose of avoiding or remedying an unintentional disparate impact on a protected class that would in turn discriminate against another group of employees on the... In the instant case, the Court concluded that the City’s threshold showing of a significant statistical disparity in test results without more is insufficient to meet this “strong basis in evidence” standard. The qualifying exams were job-related and consistent with business necessity, and the City did not show that less-discriminatory alternatives were available that it refused to adopt. Fear of litigation alone could not save the City’s claim. The practical effect of this case for employers is that using qualifying exams has now become less legally precarious. For more information on this decision and its implications, see Littler's ASAP: Ricci v.

DeStefano: Talk About a Rock and a Hard Place: Employers Required to Pick Between Disparate Treatment and Disparate Impact Claims by: Dionysia Johnson-Massie, Holly M. Robbins, Grady B. Murdock, and Cindy-Ann L. Thomas. On June 29, the U.S. Supreme Court held, in a 5-4 decision, that the City of New Haven’s action in discarding test results that were used to identify those firefighters best qualified for promotion violated Title VII of the...

Justice Anthony Kennedy, writing for the majority, ruled that the City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard, which the Court adopted to resolve any conflict between Title VII’s disparate... According to the Court, “[f]ear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.” Ricci v. DeStefano, No. 07–1428, U.S. Supreme Court (June 29, 2009). In 2003, the City of New Haven administered exams for promotion to lieutenant and captain – as required by the city charter – that were designed by a third-party contractor.

Under a union collective bargaining agreement, the written exams made up 60 percent of an applicant’s overall score, while an oral exam would account for 40 percent. With one exception, all employee panels that conducted the oral exams were comprised of one African-American, one Hispanic, and one white employee. After each test, the New Haven Civil Service Board (CSB) certified a ranked list of applicants who passed the test. The city charter required the “rule of three,” which meant that the person selected for a position must be among the three individuals with the highest scores. For the lieutenant exam, 43 whites, 19 blacks, and 15 Hispanics took the exam. Twenty-five whites, six blacks, and three Hispanics passed the exam.

All of the top 10 scorers were white, and there were eight lieutenant vacancies. For the captain exam, 25 whites, eight blacks, and eight Hispanics were tested. Sixteen whites, three blacks, and three Hispanics passed. There were only seven captain vacancies. The top nine scorers on the captain exam included seven whites and two Hispanics. In one of the most important employment law cases of the decade, the U.S.

Supreme Court handed employees a 5-4 victory by recognizing that even good-faith employment decisions can sometimes lead to results that give rise to lawsuits if those results fall more harshly on one class of... But the news is certainly not all bad for employers – the Supreme Court's ruling provides justification for those tough decisions that might otherwise have led to concerns about claims of discrimination, and allows... Ricci v. DeStefano Promotion Exam Results Skewed Heavily Against Minority ApplicantsIn 2003, a group of 118 New Haven, Connecticut, firefighters took promotion exams seeking to advance to the ranks of Lieutenant and Captain. The exams were administered by the City of New Haven after much effort to ensure that they would measure the applicants' ability to perform the work at issue, and that they would be neutral...

Despite the fact that the group of applicants which took the exams was racially diverse (over 1/3 of the applicants were either African American or Hispanic), the results of the exam were anything but... The Civil Service Board held a series of public meetings to determine whether they should certify the exam results and issue the promotions, and listened to opposing testimony about the matter. Several of the white firefighters who passed the test and were therefore in line for the promotions testified about the hardships they endured studying for the exam. Frank Ricci studied 8 to 13 hours a day to prepare for the exam and incurred over $1,000 in costs, including purchasing study-aid books and paying for someone to read them to tape because... The Board also heard testimony from the company which drafted the exam and other experts who testified that the tests were designed to be racially neutral. From the opposing viewpoint, experts pointed to other jurisdictions which placed different weight on certain parts of their respective exams and thus achieved better racial diversity in promotions.

Most importantly, the Board heard testimony from its own attorney, who testified that the City would almost certainly face a "disparate impact" lawsuit from those black and Hispanic firefighters who did not pass the... Such a claim can be brought when, even though an employer does not make a conscious discriminatory decision (for example, "I'm firing you because you are black"), its decisions tend to have a more... Find out more about Lexology or get in touch by visiting our About page. Query: May an employer make a race-based employment decision when it discovers that one of its employment tests or policies has the unintended effect of creating an adverse impact on another racial classification? In Ricci v. DeStefano, the United States Supreme Court answered no - unless the employer can show that there was a strong basis in evidence that its neutral employment test or policy would have had an impermissible,...

The Ricci case involved an employment test developed and conducted by a third-party that contracted with the City of New Haven, Connecticut to examine firefighters desiring to qualify for promotion to the rank of... Promotions were infrequent and the results of the test would determine, for the next two years, who would be considered for any open positions and the order in which they would be considered. More than 100 firefighters took the exam, and many studied for months at considerable financial and personal cost. The independent company that developed the firefighters' test specialized in these types of exams and had performed job analyses, interviewed incumbent lieutenants and captains and their supervisors, oversampled minority firefighters to guard against unintentionally... Nevertheless, despite all of the care in developing a fair, race-neutral promotional exam, minority firefighters failed the test at a rate which could infer that the test had an impermissible adverse impact on minority... The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court...

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional. New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in... The city said that it had acted to avoid a lawsuit from minorities. The ruling could give Sotomayor's critics fresh ammunition two weeks before her Senate confirmation hearing. Conservatives say it shows she is a judicial activist who lets her own feelings color her decisions. On the other hand, liberal allies say her stance in the case demonstrates her restraint and unwillingness to go beyond established precedents.

Coincidentally, the court may have given a boost to calls for quick action on her nomination.

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