Remember those two Supreme Court rulings involving firefighter applicants – one ordering New Haven to certify entrance exam results that excluded a large percentage of minority job applicants (Ricci v. DeStefano) and another allowing a disparate impact claim to be brought by black firefighter applicants who say they were excluded based on the results of an application test (Lewis v. Chicago)?
And remember how folks predicted that the rulings would put employers in a damned-if-you-do, damned-if-you-don’t kind of situation? (After the Lewis ruling, Chicago’s Corporation Counsel Mara Georges said: “The employer is placed in a Catch-22: Use the exam results, which have an adverse impact, and risk lawsuits from the group adversely impacted. Or disregard the exam results, and risk lawsuits from those who stand to benefit from the results.”
Well, that situation seems to be happening in New Haven.
A 2nd Circuit ruling yesterday allowed the black firefighters excluded by the entrance exam result sin Ricci to proceed with a disparate impact claim, despite the fact that Supreme Court ordered the city to certify the results, and the city entered a multi-million-dollar settlement with the Ricci disparate treatment plaintiffs last month.
The plaintiff in the disparate impact case claims the test used by the city was bad, and the city should have chosen one that did not have the effect of excluding most minority applicants. And his attorney said there is no Catch-22.
“I don’t think it’s a paradox,” David Rosen told the Wall Street Journal. “Even though the city didn’t bother to go out and find it and produce it, there is a lot of evidence that the test was a bad test. So we would like our day in court.”
The Supreme Court was anticipating that a disparate impact suit would follow in the Ricci case. That decision stated: “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.”
But yesterday the 2nd Circuit called that language “a single sentence of dicta.”