Wednesday, September 14, 2011

Second Circuit rejects Supreme Court dicta in New Haven firefighters case

Competing impulses drive Title VII litigation: disparate treatment and disparate impact. Disparate treatment is when the employer discriminates against you on purpose. Disparate impact is when a facially neutral test has a disparate impact against a protected class. This all played out in Ricci v. DeStefano, 129 S.Ct. 2658 (2009), when the Supreme Court took this up for the first time. Ricci is now rippling into the Second Circuit, where it all started.

The case is Briscoe v. City of New Haven, decided on August 15. This is the companion case to Ricci, which began when the City of New Haven canceled the firefighters test because it had a disparate impact on minority candidates. After the Second Circuit ruled in favor of the City, the Supreme Court ruled in favor of the firefighters, ruling that in cases like this, the City may only get away with scrapping eligibility exams if it has a "strong basis in evidence" to believe that certifying the test results would result in a disparate impact case. The Court ruled in favor of the white firefighters who said that the City disparately treated them in refusing to certify the test.

Briscoe is also from New Haven. He wants to be a firefighters. He argues that the test in issue in Ricci had a disparate impact against minority candidates in violation of Title VII. Once again on the defensive, the City argues that the Supreme Court in Ricci already foreclosed this suit because it's dicta in that case says, "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." For you non-lawyers out there, dicta is language in a court decision that is not necessary to the holding and is only there as background.

So does this language mean that Briscoe has no case? No. The Second Circuit (Jacobs, Winter and Cabranes) says the above-quoted language from Ricci is only dicta, and that while it resembles the Ricci holding that the City may avoid disparate treatment claims if it has a strong basis in evidence to believe the test results would result in disparate impact liability, the converse -- as set forth in the above-quoted language -- cannot really be true. First, Title VII itself already tells us when a real disparate impact case exists: when the test is job related and consistent with business necessity. Judge Jacobs thus writes: "there is no need to stretch Ricci to muddle that which is already clear." In addition, the dicta in Ricci cannot guide us because "it is difficult to see how a 'strong basis in evidence' can be established for a disparate-treatment claim" as "it is hard to see how one can adduce a 'strong basis in evidence' that oneself will later act with 'discriminatory intent or motive.'"

This is all very complicated. If you have to read all of this twice, don't blame me, and don't blame the Second Circuit. Judge Jacobs suggests we blame the Supreme Court for needlessly adding this dicta to the Ricci decision when it was not even necessary. What this means for Briscoe is that his case is revived (the district court dismissed it) and it gets remanded for the trial court to take up the City's other defenses.

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