Discrimination seems intuitively simple, yet it is truly complicated. One reason for discrimination’s complexity is that the law has developed in such a way that acknowledges certain theories of discrimination — and sometimes these theories conflict. Earlier this year, the U.S. Supreme Court decided Ricci v. DeStefano, a case that addressed the standard under to which to analyze the conflict between disparate treatment and disparate impact. The case is facinating not only in its holding, but in the analysis contained within the concurring and dissenting opinions.
In April, June and July, I wrote several posts about the Ricci case. To summarize, the white firefighters of New Haven, Connecticut filed a Title VII disparate treatment claim when the fire department refused to certify the results of a promotion test. The City’s basis for disrecarding the promotion test was its fear of a disparate impact claim because the results were statistically skewed against the black firefighters that took the test.
The Supreme Court found that skewed statistics were no reason to ignore the results of the announced process for promotion. Instead, in order to disregard the promotion test, the City had to possess a “strong basis in evidence to believe it will be subject to disparate-impact liability.” The “strong basis in evidence” test is different than the test used by many Federal Circuit Courts.
In Ricci, the Supreme Court found that the City could not demonstrate that a “strong basis in evidence existed” and granted summary judgment for the white firefighters. Not only is the Ricci case interesting from an analytical perspective, it certainly garnered a substantial amount of press due to the political climate at the time. When Ricci was decided, Justice Sotomayor (who was part of the Second Circuit panel that held in favor of the City) was undergoing Congressional scrutiny as a candidate for the Supreme Court.
Now, the City’s fear of a disparate impact claim by a black firefighter has come to pass. Michael Briscoe, a black, ten-year veteran of the fire department, filed a complaint in the U.S. District Court alleging that the test “was unfair because it undervalued the oral portion of the test, on which he did better.” The promotion test was 60% written and 40% oral. There is little doubt the Briscoe case will garner substantial attention given the attention given the Ricci case. I’ll keep you posted on further developments.