Second Circuit Holds "Strong Basis in Evidence" Defense to Disparate Treatment Claims from Supreme Court's Ricci Decision Inapplicable to Disparate Impact Claims
George Patterson | Bloomberg Law
The Second Circuit held that the Supreme Court’s decision in Ricci v. DeStefano, 129 S.Ct. 2658, 2009 BL 139592 (2009), did not preclude a black firefighter’s claim that the City of New Haven, Connecticut’s promotion exam had a disparate impact on minority candidates in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq. Ricci held that the City violated Title VII by engaging in disparate treatment when it refused to certify the exam’s results because they disproportionately benefitted white candidates. The Ricci Court also found that the City lacked a “strong basis in evidence” for concluding that it had to set aside the exam results to avoid a potential disparate impact suit by minority firefighters. However, when a black firefighter subsequently filed a disparate impact action, the Second Circuit declined to give preclusive effect to Ricci on the ground that Title VII provided an independent defense in disparate impact cases when an employment policy or practice adversely affecting minorities is “job related” and “consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(1).
Racially Disparate Exam Results
In 2003, the City and its Civil Service Board (CSB), which were responsible for administering promotion exams for firefighters in New Haven, became concerned that white candidates were outperforming minority candidates on the exams. Moreover, the City feared that certifying the exam results would trigger disparate impact claims from minority candidates. Based on these concerns, the CSB discarded the exam results.
In Ricci, 17 white firefighters and one Hispanic brought suit alleging that the CSB’s refusal to certify the results constituted disparate treatment under Title VII. 129 S. Ct. at 2671. The Supreme Court agreed, despite the City’s defense that certifying the exam results would have had a disparate impact on minorities in violation of Title VII. In the Supreme Court’s view, the City failed to meet its burden of showing that its disparate treatment of the plaintiffs was supported by a “strong basis in evidence” that it would have faced disparate impact liability had it acted otherwise. Id. at 2677.
Rather than vacate the lower court’s judgment for the City and provide the City with an opportunity to satisfy the “strong basis in evidence” standard, the Supreme Court ordered the City to certify the exam results. Id. at 2677-78. Notably, the Court anticipated that certifying the results might subject the City to a second lawsuit from minority candidates alleging disparate impact, stating, “Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. 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.”
After the City complied with Ricci and certified the exam results, Michael Briscoe, an African-American firefighter whose test score did not qualify him for promotion, brought a Title VII action alleging that the exam disparately impacted black employees and seeking an order enjoining use of the exam and promoting him to lieutenant with retroactive pay and seniority. The District of Connecticut dismissed Briscoe’s lawsuit, explaining that Ricci “squarely forecloses Briscoe’s claims. The Supreme Court remanded [Ricci] with directions that the 2003 exam results be certified. That has been done and promotions have been made accordingly. Briscoe cannot now raise a disparate impact claim with respect to those same exam results.” Briscoe v. City of New Haven, no. 3:09-cv-1642, 2010 BL 157486 (D. Conn. July 12, 2010). Briscoe appealed.
Strong Basis in Evidence
After determining that the doctrine of non-party preclusion did not bar Briscoe’s lawsuit, the Second Circuit considered the City’s argument that a “two-way reading” was warranted to extend Ricci’s “strong basis in evidence” standard for disparate treatment claims to disparate impact claims. The City contended Ricci’s holding that an employer may avoid liability for disparate treatment based on a strong basis in evidence that its conduct was necessary to prevent disparate impact liability should also allow the reverse: that an employer may avoid liability for disparate impact if its actions were necessary to avoid disparate treatment liability. According to the City’s rationale, the Supreme Court’s holding in Ricci precluded disparate impact liability because it clearly provided a strong basis in evidence that the City would have been liable for disparate treatment if it had failed to certify the exam results.
The Second Circuit rejected this argument, holding that the Court’s statement in Ricci that the City could not be liable for disparate impact discrimination after certifying the exam results was mere dicta and could not be squared with Ricci’s actual holding or with “long-standing, fundamental principles of Title VII law.” The court noted that when the Supreme Court actually set forth its holding in Ricci, it stated, “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”
Moreover, the Second Circuit found that Title VII already provided a means of addressing disparate impact claims, and thus, it was unnecessary to apply the standard Ricci established for disparate treatment claims. As the court explained, the subsection governing disparate treatment claims, 42 U.S.C. § 2000e-2(a), lacks clarity with regard to what informs the “discriminatory intent or motive” analysis. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988). “But the corresponding question for a disparate impact claim — when an employment practice that would otherwise trigger disparate-impact liability is excusable due to concern over disparate treatment — is answered by the statutory definition of the claim: Conduct that is ‘job related’ and ‘consistent with business necessity’ is permissible even if it causes a disparate impact . . .” § 2000e-2(k)(1). Accordingly, the court found no reason to apply the Ricci standard to a disparate impact analysis that had an alternative means of resolution and vacated the order dismissing Briscoe’s disparate impact suit.
No Clear Standard
The Second Circuit undertook a far more complex analysis of Ricci and Title VII than the district court, which simply followed the Supreme Court’s straightforward language to conclude that Briscoe’s claim was barred. Indeed, the Supreme Court’s statement in Ricci certainly seems calculated to prevent certification of the exam results from resulting in future disparate impact claims. It therefore seems likely that the Court will eventually have to clarify whether disparate impact claims should be resolved using the “strong basis in evidence” or “job related and consistent with business necessity” standard.
As the Second Circuit noted, “one sentence of dicta” from Ricci, if applied literally, would “effect a substantial change in Title VII disparate-impact litigation” by establishing a new legal test. Thus, in the court’s view, if the Supreme Court intends to set forth a new basis for addressing disparate impact liability, it should do so explicitly.
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