Wednesday, April 28, 2010

City of Bridgeport discrimination case gets some new plaintiffs

The City of Bridgeport Police Department has been under federal court supervision for over two decades, the byproduct of a racial discrimination suit filed in 1978. That case is still breathing, and now it has some additional plaintiffs thanks to a Second Circuit ruling that grants white police officers the right to intervene in the case. The Court of Appeals suggests, though, that this case cannot hang around forever.

The case is Bridgeport Guardians v. Delmonte, decided on April 27. After the district court issued a remedy order in 1982 upon finding that the police department discriminated against minority officers, this case has seen twists and turns over the years, to the point where the department has since been led by two African-American Chiefs of Police. As Judge Parker notes in writing the opinion, "Throughout this period, the only constant has been that the police department of Connecticut's third-largest city has been run under the supervision of a federal court and its appointed special master."

In 2008, the court entered an order that says the City must take all appropriate steps to ensure that its hiring practices do not have a disparate impact on minority candidates "by [among other things] utilizing race-neutral measures, including the appropriate weighting of the oral and written portions of the examination to reduce the disparate impact while preserving the validity and usefulness of the examination."

This order prompted the white and Hispanic officers to try to intervene in the case. Reversing the district court on this issue, the Second Circuit (Parker, Cabranes and Amon [D.J.]) allows the officers to intervene. These officers object to the 2008 order, claiming it would allow the City to adopt race-conscious promotional and hiring practices" that would adversely affect their interests. Since these white and Hispanic officers have an interest that clashes with that of the current plaintiffs, under Rule 24(a)(2), they want to intervene in the lawsuit. Largely following its precedent from 2001, Brennan v. New York City Board of Education, 260 F.3d 123, the Second Circuit reasons:

appellants are white and Hispanic male employees who claim that their employer has reached a settlement agreement in an employment discrimination suit that violates their rights. They, like the intervenors in Brennan, have an interest in their employers’ employment practices and, therefore, a settlement agreement that they assert infringes their statutory and constitutional rights. Under Brennan, therefore, the current officers have asserted an interest in their promotion that is sufficient for intervention, and have asserted that as a practical matter the interim order could impede their rights. As their rights are not represented by any other party – especially now that the Union is no longer involved – they are entitled to intervene.

The subtext here is disparate impact, which the Supreme Court recognizes as a violation of Title VII of the Civil Rights Act of 1964. Municipalities cannot adopt race-neutral employment practices that have a disparate impact on racial minorities without a showing of business necessity. In all likelihood, the intervenors in this case see the City's efforts to avoid disparate impact as a threat to their own promotional opportunities. Recall that the Supreme Court in another Connecticut case, Ricci v. DeStefano, 129 S.Ct. 2658 (2009), made it more difficult for employers to discard civil service tests "to achieve a more desirable racial distribution of promotion eligible candidates." Disparate impact figured heavily in the Ricci decision in that the City in that case wanted to avoid testing that would disproportionately hurt minority candidates. While the intervenors in the Bridgeport Guardians case decided on April 27 want the Court to throw out the district court's order because it violates the new rule in Ricci, the Second Circuit is sending the case back to the district court to take up that issue in the first instance.

The days are numbered for this case. At the end of the opinion, Judge Parker suggests that "the world has turned over many times since" this case was filed in 1978, and that "[e]xcept in highly unusual circumstances, it is the business of cities, not federal courts or special masters, to run police departments. At some point in time this litigation has to be ended. On remand, we are confident that the capable district judge will look hard for that point."

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