Thursday, August 20, 2009

Revisiting Ricci; Lawyers in New Haven Firefighter Case Have Friendly Face-Off

The lead attorneys in the high-profile New Haven firefighter case that reached the Supreme Court appeared together in a lively August 18 panel discussion called Discrimination Claims After Ricci v. DeStefano.

Victor A. Bolden, New Haven CT Corporation Counsel, and Karen Lee Torre, attorney for the victorious firefighters, proved that individuals can forcefully disagree about a highly charged, highly publicized and sensitive controversy but still engage in a civil, friendly discussion. Each lawyer presented formal remarks followed by a short audience Q&A.

We attended the extremely informative event held before a packed house in the regal Grand Courtroom of Quinnipiac Univ. School of Law in Hamden, Connecticut. Apparently the event was taped by the CT-N Network for replay in the near future.


In its highly anticipated opinion in Ricci et al. v. DeStefano et al., the U.S. Supreme Court in a 5-4 decision ruled on June 29 that a group of 20 New Haven, CT, firefighters were wrongfully denied promotions despite their passing grades on the lieutenant and captain test when the city decided to toss the exam results.

This landmark decision overturned a ruling in favor of the city by then-Judge Sotomayor and two of her colleagues on the U.S. Court of Appeals for the 2nd Circuit.

Further background on this case be found here and here.

Two Perspectives

Attorneys Bolden and Torre disagreed somewhat about the application of the new "strong basis in evidence" rule as enunciated without specific precision by the high court. This rule requires the existence of strong body of proof of a discriminatory employment practice before an employer can proactively take steps to fix the situation--which in New Haven's case was ignoring the test results.

As reported by local media covering the event, Bolden "predicted municipalities nationwide would struggle mightily for years in trying to apply [the] new legal standard." Torre agreed to some extent that the rule is murky--"she said the court did provide a road map by showing what isn't one: stray remarks, lobbying of minority power brokers and testimony from hired-gun experts and disgruntled test takers, as she maintains happened in New Haven." Lower courts will have to grapple with this new rule for years to come.

During the Q&A, Torre contended that a trial lawyer can get an expert to testify that "the sun rises in the west and the tooth fairy was witness to it," especially when it comes to rival test developers.

Torre also commented that disparate impact can emerge in all occupational exams, such as the bar exam, medical boards, and testing for stock broker licensing. But the litigation has primarily focused on civil service. Disparity in testing outcomes doesn't always mean discrimination, she added. Title VII is an equal opportunity law--"you have no right to a job. You only have a right to far consideration based on your qualifications and your ability to do the job."

What is the New Standard?

Led by Justice Kennedy, the high court explained its new rule as follows:
We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute…
Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action...
On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence —let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim…
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...
Back to the Panel Discussion

Both litigators came across as professional, reasonable, and sincere, but Bolden seemed to go with vague generalities along with a stated wish to not "relitigate" the case (which may be wholly understandable given the constraints of his municipal job duties). Although each obviously put their own spin on the outcome, Bolden's often non-committal presentation seemed to lack specificity, while Torre seemed more in command of both the facts and the law revolving around Ricci. The difference in approach is reflected in the content of this posting.

University of Connecticut Law School Prof. Sachin S. Pandya kicked off the discussion with a relatively brief explanation of the difference between the legal doctrines of disparate treatment and disparate impact in employment discrimination cases under Title VII of the U.S. Civil Rights Act.

Title VII, originally enacted in 1964, is the nation's primary civil rights law, that makes it illegal for an employer to discriminate on the basis of race, color, religion, sex, or national origin. Similar statutes, which sometimes contain additional protections, have been enacted at the state level.

To make a long story sort of short, disparate treatment or overt discrimination directly affects an employee or applicant who must establish a prima facie case of discrimination. The burden of proof then shifts to the employer to establish a legitimate nondiscriminatory reason for its hiring decision. In rebuttal, the plaintiff has the opportunity to show that the state reason was pretext discrimination. The disparate impact claim (the principal issue in Ricci) centers on an outcome, regardless of the motive of the employer. The employer has the opportunity to then establish it acted on the basis of job-related business necessity, while the plaintiff can respond with a showing that the employer could have used an available alternative, nondiscriminatory practice.

In other words, disparate-impact claims attack a neutral policy or practice that has a disproportionately negative impact on a statutorily-protected group. Disparate-impact claims do not require proof of an intent to discriminate.

Pandya said that the City of New Haven declined to certify the promotional results based on fears of losing a disparate impact lawsuit. It found itself in a no-win situation. But that under Ricci, even a well-intentioned employer shouldn't take race into consideration.

Attorney for the Petitioners

Next, Torre then spoke about the case from her perspective.

Torre remarked that the fact summary of Justice Kennedy's majority opinion was good but "sterile." Justice Alito's concurrence, she said, more fully addressed the behind-the-scenes "dirt," i.e., the politically and racially charged context in the New Haven civil service. According to Torre, Ricci was about "crude race mongering."

Torre said her extensive research revealed that reverse discrimination lawsuits in connection with public sector test results primarily concentrate in public safety and public schools. Police and fire department promotions coast to coast have become paralyzed by disparate impact litigation, she recalled.

Torre claimed that disparate impact is a judge-created doctrine and does not appear in the text of Title VII. In 1971, the high court in Griggs v. Duke Power Co. interpreted Title VII to prohibit an employer's facially neutral (i.e., on its face) employment practices if these practices are discriminatory in operation. In Griggs, the so-called touchstone for disparate impact liability is the lack of business necessity. If an employment practice which operates to exclude minorities cannot be shown to be related to job performance, the practice is prohibited.

According to Torre, liberal jurists misused and exploited the Griggs holding to guarantee equal results rather than opportunity, something Congress never intended. This is a body of law built up by activist judges rather than by statute. In 1991 amendments to Title VII, Congress said no to quotas, and also said don't tamper with civil service tests or manipulate the results on the basis of race. She also emphasized that the city of New Haven conceded that the test in question was job related.

Contrary to what was reported in the media, Torre explained that there was no precedent for either the District Court or the Second Circuit's ruling in favor of the city. This disinformation was an attempt by the media to run interference for the Sotomayor nomination, she said.

During a brief Q&A session that followed the lawyers' formal remarks, Torre maintained that employers all over the country have engaged in manipulating test scores to equalize racial outcomes. But there was no legal precedent for throwing out an entire test, because Congress has expressly disallowed so-called "race norming."

The District Court decision by Janet Bond Arterton, a Clinton appointee, was a departure from Title VII jurisprudence, Torre contends. The judge erred in ruling that an employer can ignore test results if you don't like the outcome. And contrary to the District Court holding, diversity and role models were factors explicitly rejected by the Supreme Court 15 years ago. The Supreme Court's majority opinion corrected the District Court's erroneous application of precedent, she said.

Torres said that Ricci will have its greatest impact in the highly politicized public sector. She predicated that far fewer similar disputes will emerge in the private sector where employers will be more inclined to us legally valid job-related tests and act on them. Many municipalities, she added will try to get around Ricci where elected officials are subject to the push and pull of politics. Disparate impact leads to the "worst kind" of political pressure, she said.

Attorney for the Respondents

In his presentation, Attorney Bolden recounted the history and context of the case, which included three decades of successful lawsuits in New Haven by black firefighters over hiring and promotions in the run-up to the Ricci litigation. He indicated that the situation forced the city to try to balance the competing priorities of disparate treatment and disparate impact against each other, and that the city would have been sued one way or another. Bolden further noted that disparate impact did not "originate" in New Haven. For example, under guidance issued by the U.S. Equal Employment Opportunity Commission, disparate impact is presumed only if the minority success rate on a given test is less than 80 percent of the success rate of the majority group.

Bolden said that he is concentrating on how to move forward on civil service promotions in compliance with the somewhat fuzzy strong basis in evidence standard in a way that is productive, i.e., what is the best way to determine who will be a lieutenant or captain on the New Haven Fire Department. He offered no specifics in accomplishing this goal, other than alluding to possibly changing the weighting of the testing to favor the oral exam. Bolden reaffirmed that the strong basis in evidence standard will pose a real problem for cities such as New Haven and will impose a continuing tension between disparate treatment and impact. And that going forward, treatment will trump impact.

In response to a audience question about the shelf life of Ricci should another reverse discrimination case make its way to the high court, Torre declared that Ricci never will be overruled. It was really a 9-0 decision, she contended, since all nine Justices agreed that the District Court and the Appeals Court were wrong in affirming summary judgment for the city. At the high-court level, the disagreement was whether to remand the case for trial on Title VII liability which the four Justices in the minority wanted to do. The five Justices in the majority, however, determined that the undisputed facts established that New Haven violated Title VII; therefore, vacating the lower court action and entering summary judgment for the firefighters without a trial was the appropriate legal remedy.

Bolden nearly brought down the house when he joked that only a zealous advocate like Karen Torre could twist a 5-4 decision into one that was 9-0!

The Future

Torre also forecasted that the Court will in the coming years take up the issue of whether Title VII's disparate impact provisions violate the U.S. Constitution's equal protection guarantee under the 14th Amendment. If the Court's ideological balance stays the same, which is speculative, the likelihood is that disparate impact doctrine-- depending upon the facts--could be struck down on equal protection grounds. There are several cases pending that will eventually work their up to the Supreme Court. As Justice Scalia wrote in a separate concurrence, "But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them."

On an inspirational note, Torre explained that unlike the tenacious New Haven firefighters that she represented who were all in, most litigants won't embark on such a long legal journey after setbacks in lower courts. To get case heard before the Supreme Court, lawyers and their clients must be "audacious, fanciful, and bold."

Patronage vs. Performance

Hiring or promotion decisions can be subjective to some degree even in the best of circumstances. In general, there are terrific employees or potential hires (or college applicants) that simply underperform on standardized tests for whatever reason or combination of reasons; that doesn't in any way make them bad persons. However, isn't it reasonable that employers have the latitude to screen workers with a properly vetted, sufficiently job-related vocational exam at least as one component in the hiring process? (Moreover, in the Internet age, review materials are readily available to any interested party.)

As a practical matter, when a fire breaks out, or the menacing Jason wearing a hockey mask shows up at someone's front door, the public expects the first responders to be the most savvy, strongest, and toughest officers available--irrespective of ethnicity or any other classification. Isn't public safety the fundamental mandate for these agencies rather than to function as a job bank for social engineering?