Thursday, May 16, 2013

Mixed result on appeal over NYC Fire Department racial hiring practices

Litigation over the hiring practices of the New York City Fire Department has raged on for years. This time around, the Court of Appeals vacates summary judgment in favor of the firefighters who claim that the FDNY intentionally discriminated against them. It also modifies the injunction that entered after the district court found that the hiring tests have had a disparate impact on black applicants.

The case is United States v. City of New York, decided on May 14. As the Second Circuit (Newman, Pooler and Winter) points out, for a city with a high percentage of black and Hispanic residents, very few racial minorities have traditionally served as firefighters. The plaintiffs successfully argued in the district court that the hiring tests violate Title VII because they have a disparate impact on minority test-takers and are not job-related for the purposes of business necessity. In other words, the tests do not properly test potential firefighters. In a well-publicized decision, Judge Garaufis entered a far-reaching injunction against New York City after finding that the tests have an unlawful disparate impact against minority job applicants.

The City has not challenged the district court's disparate impact finding. (Disparate impact claims do not require a finding of intentional discrimination if the tests have a disparate impact on minorities and they do not properly test job-related matters).  The city instead challenges the injunctive relief. The Second Circuit modifies the injunction. It agrees that the city must stop using the invalid tests and that a monitor should be appointed to oversee the fire department's antidiscrimination efforts. The city also has to make efforts to recruit minority applicants and lessen minority attrition. But the injunction goes too far to the extent that it requires the city to hire an outside recruitment consultant and to also maintain contemporaneous written records of all communications concerning hiring. The injunction also improperly requires the city to hire an outside EEO consultant. The bottom line is that the city has been found as a matter of law to employ bad testing methods in hiring firefighters and that some of the district court's remedies are upheld.

Over Judge Pooler's dissent, the district court's ruling on disparate treatment is overturned. The plaintiffs argued that that the city had a pattern-and-practice of discriminating against minorities who wanted to be firefighters. The district court agreed. (This is rare. Plaintiffs almost never win summary judgment on disparate treatment claims because these claims require a showing of illicit intent, which is normally for the jury to decide). The plaintiffs made out a prima facie case of discrimination. The city therefore had to articulate a non-racial justification to rebut the presumption that it discriminated against racial minorities. The city only has to articulate a neutral reason. It does not have to prove that the city acted for non-racial reasons. Nor must the employer show that it was actually motivated by the articulated reason. (What happens after the employer articulates its neutral reason is that, to prevail, the plaintiff has to ultimately show that the articulated reason is pretext for discrimination). The district court, however, concluded that the city's justifications were not persuasive. In particular, the Court of Appeals said, "the District Court rejected the evidence the City produced to satisfy its burden of production as 'either incredible or inapposite.'” In reaching that conclusion, the district court granted summary judgment for the plaintiffs. In vacating summary judgment and remanding the case for trial, the Court of Appeals summarizes the state of the law in this area, noting that an employer may rebut a prima facie case by producing any evidence that is relevant to rebutting the inference of discrimination. It can show that the plaintiffs got their statistics wrong. It can show that it maintains an affirmative action program intended to help racial minorities. But whatever the employer does in this context, its burden of proof cannot involve a credibility determination by the factfinder. Since the district court said that the city's articulated justification was not believable, it improperly granted summary judgment on the disparate treatment claim.

On remand, the disparate treatment claim will be tried by a different judge. The Court of Appeals says that Judge Garaufis' finding that the city offered an unpersuasive reason for its hiring practices creates a problem: "where, as here, a judge makes an unwarranted venture into fact-finding at a preliminary stage and brands a party's evidence as 'incredible' without hearing any witnesses, an objective observer would have a reasonable basis to question the judge's impartiality in assessing that evidence at trial."

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