EMPLOYMENT DISCRIMINATION; — DISPARATE IMPACT — SECOND CIRCUIT DECLINES TO EXTEN
ID: 396587 • Letter: E
Question
EMPLOYMENT DISCRIMINATION; — DISPARATE IMPACT — SECOND CIRCUIT DECLINES TO EXTEND RICCI V. DESTEFANO. — Briscoe v. City of New Haven, 654 F.3d 200 (2d Cir. 2011). Title VII of the Civil Rights Act' prohibits public and private employers from discriminating on the basis of "race, color, religion, sex, or national origin."^ Plaintiffs can challenge employment practices because they evidence disparate treatment,^ intentional discrirñination on the basis of a protected trait, or because they cause a disparate impact,'* a differential effect on a protected group. In Ricd v. DeStefano,^ the Supreme Court identified a tension between the disparate treatment and disparate impact provisions of Title VII: the prohibition of disparate treatment forbids racial classifications, whereas the simultaneous prohibition of disparate impact sometimes requires recourse to racial classifications.« To resolve this tension, the Ricci Court held that an "employer must have a strong basis in evidence" that it will face disparate impact liability before it may voluntarily address disparate impact through the use of "intentional discrimination."' Recently, in Briscoe v. City of New Haven,^ the Second Circuit revisited the promotion process at issue in Ricci and held that Ricci did not create a "symmetrical" standard for avoiding disparate impact liability.' Ricci did not foreclose disparate impact suits where there is a "strong basis in evidence" for disparate treatment liability.'° The disparate impact claim raised in Briscoe posed a choice for the Second Circuit: follow the Supreme Court's dicta and extend Ricci to create a new standard for avoiding disparate impact liability, or continue on the course established by Title VII. In allowing a disparate impact suit to proceed, the Second Circuit rightly confined Ricci to its holding. The Briscoe court's narrow reading of Ricci exhibits appropriate judicial deference to Congress and wisely maintains an antisubordination interpretation of Title VII and equal protection. In 2003, the City of New Haven administered written exams to decide which of the city's firefighters would receive promotions to the rank of lieutenant or captain." The exams had a significant disparate impact on candidates of color. If the city had certified the test results, no black or Latino candidates would have been eUgible for immediate promotion to lieutenant.^^ The exam for promotion to captain yielded sUghtly more diversity: seven whites and two Latinos would have been eligible for immediate promotion.i^ After a contentious public debate regarding certiflcation, the New Haven Civil Service Board declined to certify the results of the test.i'* Seventeen white firefighters and one Latino firefighter subsequently brought suit against the city. They claimed that the city's failure to certify the exams constituted discrimination on the basis of race under the disparate treatment prong of Title VII. ^^ To resolve the firefighters' claims, the Supreme Court in Ricci created a new standard for reconcihng the tension between disparate impact and disparate treatment: an employer must establish that it has a "strong basis in evidence" that it will be subject to disparate impact liability before it may alter a hiring or promotion process for race-sensitive reasons.!^ Since the city could not meet the new standard, the Court ordered the city to certify the results of the test." Ricci also presaged the possibility that the city might face another lawsuit for the test's disparate impact on the black and Latino firefighters. 1^ The Court proffered a method for resolving the city's future liability by inverting its holding: "[I]n 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."i' In 2009, Michael Briscoe, a black firefighter, brought a disparate impact suit against the City of New Haven,2o converting the Ricci hypothetical into reality. Briscoe took the exam for promotion to lieutenant and scored the highest among all the candidates on the oral portion.^i However, his score on the written portion resulted in an overall ranking of twenty-four, making him ineligible for promotion.^^ l854 HARVARD LAW REVIEW [Vol. 125:1852 Briscoe argued that the particular weighting of the written and oral exams resulted in a disparate impact on firefighters of color.^^ Briscoe asked the court to grant a promotion, monetary damages, and a future injunction concerning the weighting of the exams.^'* The district court dismissed Briscoe's claim.^^ Relying on Ricci, the court noted that the Supreme Court had already held that there was no strong basis in evidence for a disparate impact claim against the city, effectively "foreclos[ing]" the possibility of Briscoe's disparate impact claim.26 The district court found Justice Kennedy's closing hypothetical in Ricci instructive: the city could avoid a disparate impact suit because Ricci itself provided a strong basis in evidence that rectifying the disparate impact would subject the city to a disparate treatment violation.2' The district court emphasized the Ricci Court's unique procedural gesture in reversing the Second Circuit instead of vacating and remanding, the Court's usual procedure when announcing a new standard.^^ The court concluded: "The Supreme Court remanded [Ricci] with directions that the 2003 exam results be certified. . . . Briscoe cannot now raise a disparate impact claim with respect to those same exam results."^^ The Second Circuit vacated and remanded.^° Writing for a unanimous panel. Chief Judge Jacobs^^ concluded that Briscoe's claim could not be properly dismissed under the district court's reasoning.32 After rejecting the claim that Ricci precluded Briscoe's suit,^^ Chief Judge Jacobs read the district court's dismissal as incorrectly "establishing a symmetrical companion to Ricci's . . . holdingRECENT CASES 1855 While Ricci held that an employer could avoid a disparate treatment claim only through a showing of a "strong basis in evidence" of disparate impact liability, the district court had erroneously accepted at face value Ricci's dicta purporting to invert its holding.^s Chief Judge Jacobs explained that the district court's extension of the Ricci holding to establish a parallel standard for avoiding disparate impact liability was wrong for several reasons. First, Chief Judge Jacobs looked to the reasoning of Justice Kennedy's opinion in Ricci. The district court's holding relied not on Ricci's holding, but on Justice Kennedy's closing dicta,^^ which attempted to foreclose future disparate impact suits.^' Instead, Chief Judge Jacobs selected the narrowest language in the opinion as the articulation oí Ricci's holding^» and found that the parting dicta bore no logical connection to the holding.39 The fundamental asymmetry between disparate impact and disparate treatment claims also suggested that the court could not invert the holding in Ricci. Unlike for disparate treatment. Title VII explicitly outlines defenses for disparate impact.^o Chief Judge Jacobs reasoned that "[tjhere is no need to stretch Ricci to muddle that which is already clear."'*i Next, Chief Judge Jacobs examined the implications of inverting Ricci's holding, noting that doing so would lead to illogical results. First, because disparate treatment claims center on an intent inquiry, the court concluded that "it is hard to see how one can adduce a 'strong basis in evidence' that oneself will later act with 'discriminatory intent or motive.'"'»^ Second, Chief Judge Jacobs explained that Ricci derived its holding by analogizing a standard from equal protection's prohibition on racial classifications to disparate treatment claims under Title VII.'*^ Equal protection, however, does not prohibit disparate impact.'*'* As a result, Ricci's holding could not "apply symmetrically to two doctrines that by nature are asymmetrical. "'*5 Finally, interpreting Ricci to create a defense to disparate impact liability1856 HARVARD LAW REVIEW [Vol. 125:1852 based upon a "strong basis in evidence" of disparate treatment would effect a transformation in employment discrimination law.'*^ Such an outcome, the court concluded, could not have been intended by the "single sentence of dicta" relied upon by the district court.'*^ Briscoe created a double bind for the Second Circuit: follow the Supreme Court's dicta and uproot a forty-year-old disparate impact doctrine or decline to follow the Supreme Court, relying instead on Title VII itself.'*^ The Briscoe court wisely chose the latter option, declining to extend Ricci to create a new defense to disparate impact liability. In so doing, the Second Circuit evinced deference to Congress's continued support for an antisubordination view of antidiscrimination law, which uses disparate impact Uability as a remedial tool. Briscoe's judicial restraint breathes continued vitality into disparate impact doctrine against the backdrop of persistent social inequality. By raising a disparate impact claim after the Ricci Court's dicta had foreclosed it, Briscoe forced the court to resolve an ongoing "feud" between Congress's view of disparate impact as embodied in Title VII and the Court's attempts to eviscerate disparate impact.'*' After reading the doctrine of disparate impact into Title VII in Griggs v. Duke Power Co.,^° the Court slowly retreated from its strong articulation of the doctrine.^' This contraction culminated in a near repudiation in Wards Cove Packing Co. v. Atonio.^^ Congress rejected the resulting "weakened . . . scope and effectiveness of Federal civil rights protections"^^ by codifying disparate impact in the 1991 Amendments to Title VII, an unequivocal rebuke aimed at correcting the Court's doctrinal turn away from disparate impact.^'* Briscoe very much appears at the intersection of these competing visions of disparate impact liability. The Second Circuit resolved this judicial double bind by reading Ricci through statutory interpretation techniques aimed at deference to Congress — textualism and purposivism.^s In assessing whether Ricci created a new standard for avoiding disparate impact liability.RECENT CASES 1857 the Briscoe court turned to the statute. Title VII instructs that for disparate impact claims, processes that are "job related" and "consistent with business necessity" are permissible even despite a differential effect on a protected group.^« Given the statutory nature of the disparate impact defenses, the court explained that it would have "expect[ed]" that the Ricci Court would have "cite[d] and quote[d] the statute" if it had intended to create a new defense.^' Self-consciously concluding its textual analysis, the court noted that judge-made law is unnecessary when the statute is clear^» ^o buttress its textual approach, Briscoe then intimated that applying Ricci's dicta would effect an outcome contrary to Congress's purposes in Title VII.^' ^g the court explained, extending Ricci would conflict with "long-standing, fundamental principles of Title VII law."«° Briscoe thus follows other circuits in remaining faithful to Title VII's text and engaging in a broad, purposivist interpretation of the statute.«^ Given the Court's perennial role as assailant of disparate impact and Congress's role as its defender, Briscoe's deference to Congress has significant implications for a larger debate about the proper place of antidiscrimination law in society. Legal scholars have long viewed disparate impact as a significant tool in achieving the remedial aims associated with an antisubordination view of antidiscrimination law.«^ The antisubordination thesis holds that to realize the "guarantees of equal citizenship" legal regimes must address the continued subordination of disadvantaged groups in society.«^ The prohibition on disparate impact in employment law, with its aim of "achiev[ing] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor . . . white employees over other employees,"«'* grew out of this antisubordination tradition.«^ Antidiscrimination jurisprudence, however, has undergone a sea change over the past forty years, abandoning an antisubordination interpretation of antidiscrimination HARVARD LAW REVIEW [Vol. 125:1852 and equal protection in favor of a colorblind interpretation.^^ The colorblind vision, in contrast to the antisubordination thesis, prohibits classification by race for both malign and benign, remedial reasons.^' Thus, while disparate treatment also began in the antisubordination tradition,^* the rise of the colorblind interpretation of equal protection has inflected disparate treatment doctrine with an anticlassification rationale in both the equal protection^' and Title VII contexts.'° This sea change from the antisubordination to the colorblind view has set disparate impact and the new colorblind requirements of the Constitution on a collision course.'^ Ricci was radical precisely because it named these lurking tensions'^ and assumed that voluntarily addressing disparate impact was itself intentional discrimination.'^ The broadest reading of Ricci — that disparate impact fundamentally conflicts with the colorblind requirements of the American legal system — would represent a significant victory for the colorblind view.'* Addressing a disparate impact, like the one in Briscoe, after its manifestation in the hiring or promo66 See Balkin & Siegel, supra note 63, at 29 ("Beginning in the 1970s the federal courts applied existing doctrines in ways that slowed the project of disestablishing racial hierarchy . . . ."); Richard A. Primus, Equal Protection and Disparate Impact: Round Three, 117 HARV. L. REV. 493, 502-05 (2003). Before Ricci, this transformation was most evident in school desegregation. Compare Keyes v. Sch. Dist No. i, 413 U.S. 189 (1973) (holding tha t intentional discrimination in one part of the district created a presumption of deliberate discrimination in the entire district), with Parents Involved in Cmty. Sch. v. Seattle Sch. Dist No. i, 551 U.S. 701 (2007) (holding tha t diversity was not a sufficiently compelling interest to justify the use of racial classification in voluntary school desegregation). 6' For a complete exposition of the colorblind interpretation of equal protection, see ANDREW KULL, TH E COLOR-BLIN D CONSTITUTIO N (1992). The ascendancy of the colorblind interpretation means that equal protection under the Fourteenth Amendment and disparate treatment under Title VU substantively prohibit the same conduct in the realm of employment practices — intentional discrimination based on race. See Richard Primus, The Future of Disparate Impact, 108 MICH . L . REV . 1341,1354-56 (2010). 68 See Fiss, supra note 65, at 236; see also United Steelworkers of Am. v. Weber, 443 U.S. 193, 202 (1979) ("Congress' primary concern in enacting the prohibition against racial discrimination in Title VU . . . was with 'the plight of the Negro in our economy.'" (citation omitted)). 69 See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) ("[W]e hold today that all racial classifications . . . must be analyzed by a reviewing court under strict scrutiny."). ' " Ricci is the best example of this anticlassification interpretation of disparate treatment by the Court. See Helen Norton, The Supreme Court's Post-Racial Turn Towards a Zero-Sum Understanding of Equality, 52 WM . & MARY L. REV. 197, 198 (2010). The increasing numbe r of "reverse discrimination" suits also illustrates the building pressure toward a colorblind view. See, e.g., Hayden v. Cnty. of Nassau, 180 F.3d 42, 46-47 (2d Cir. 1999). " See Primus, supra note 67, at 1385-86. '2 See id. at 1353. '3 Ricci V. DeStefano, 129 S. C t 2658, 2673 (2009) ("Our analysis begins with this premise: Th e City's actions would violate the disparate-treatment prohibition of Title VII absent some valid defense."). '4 See Primus, supra note 67, at 1363. But cf. George Rutherglen, Ricci v. DeStefano.- Affirmative Action and the Lessons of Adversity, 2009 SUP. CT . REV . 83, 83 ("[O]nly a sweeping decision could reshape the law of affirmative action. Ricci does not.").RECENT CASES 1859 tion process'^ requires employers to discern differential impact by referencing racial classifications. Thus, if Ricci means that racial classifications are themselves an impermissible disparate treatment, then this broad reading could spell the demise of disparate impact claims as a tool to address racial stratification.'^ The Second Circuit, however, in allowing the claim to proceed, rejected this broad reading of Ricci in favor of the antisubordination thesis long advocated by Congress. Briscoe's restraint thus keeps the court open to plaintiffs with disparate impact claims and allows Title VII to have a continued role in ending the subordination of disadvantaged groups in American society. Evidence suggests that disparate impact law has had a substantial effect on public employment practices: its advent coincided with an increase in the use of assessment centers and other practices that tend to produce more racially diverse hiring and promotion." Yet inequalities persist. Briscoe's facts illustrate why an antisubordination reading of Title VII is still necessary: in New Haven, the city's procedures would have resulted in the promotion of only two candidates of color'^ in a city that is forty percent black and twenty percent Latino.'^ Briscoe kept the antisubordination legacy alive by allowing a black firefighter to challenge the disparate impact of an exam against a "backdrop of entrenched inequality. "8° While Briscoe could have represented another step in the dismantling of an antisubordination vision of antidiscrimination law by the courts, the Second Circuit's decision suggests that at least some lower courts are reluctant to be foot soldiers in the Court's march toward a colorblind legal system.^^ By deferring to Congress, the Briscoe court placed the future of disparate impact back in the Supreme Court's hands. As Justice Scalia prophesied, "the war between disparate impact and equal protection will be waged sooner or later."^^ appears, at least for now, that only the Court can bring about that "evil day
I need an analysis and summation of Ricci v. DeStefano case I need atleast 750 words. I have submitted it the case.
i need an analysis and summation of Ricci v. DeStefano
Explanation / Answer
Case background
In 2003, the New Haven Fire Department had conducted an exam to select 7 Captains and 8 Lieutenants for the fire fighting department. This civil service examination consisted of 2 parts. First was a written test consisting of multiple choice questions and carried a weight of 60% and an oral test that had a weight of 40%. Candidates had to score 70% to pass this exam. Furthermore, top 9 and 10 scorers would be eligible for the respective positions of Captains and Lieutenants respectively. The test was conducted in December 2003 and a total of 118 firefighters had appeared for this test. When the test results were declared, Frank Ricci and 19 more were eligible for the open positions based on their test results. In terms of racial origin, none of the candidates who had passed were African American. Of the 20, only 1 was Hispanic and remaining were all White.
Due to the absence of any African American candidate in the final list, the city of New Haven decided that would not certify the test results because they thought that they might invite a lawsuit under the concept of disparate impact.
What is Disparate Impact?
Disparate impact is a law under labor rules in US that prevents practices in employment and other areas that may have a negative bias on people of the minority section. This is valid even if the policy rules appear to be minority neutral. In this context, although the written exam was held in a neutral manner and results were evaluated in a fair manner, the city of New Haven thought that they could attract a lawsuit under disparate impact under Title VII of the 1964 Civil Rights Act.
The Case
The 20 candidates who did clear the exam sued the city and the mayor DeStefano on charges of unlawful discrimination through disparate impact under the Civil Rights Act of 1964. The question in this case is if the City of New Haven did not certify the test results, solely because it unintentionally had a negative effect on a minority community, is it violating the Title VII of the Civil Rights Act of 1964?
Judgments
The District Court had ruled in favor of the city. On appeal, the case then moved to the Second Circuit Court of Appeals. This court also said that the city of New Haven was justified in not certifying the test results and it was rightly doing its bit to fulfill its obligation under Title VII. The case then moved to the Supreme Court. Supreme Court ruled in favor of Ricci and said that the City had actually violated the Civil Rights Act by not certifying the test results. The court took note of the fact that the test was held under unbiased conditions and hence the results were also unbiased.
Conclusion
The fact that all the successful candidates were non-black was more of a statistical disparity rather than a one that is based on discriminatory practices. In addition, if the city of New Haven thought that the test was discriminatory, they should have come up with a better alternative for selecting candidates amongst its ranks.
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