Larry's Legal Lessons: Supreme Court Agrees to Hear New Haven Reverse Discrimination Case

Legal Lessons Learned: On Jan. 9, 2009, the U.S. Supreme Court agreed to hear the appeal of 17 Caucasian and one Hispanic firefighters seeking promotions in the New Haven, CT, Fire Department; Frank Ricci (firefighter(, et al., Petitioners v. John DeStefano (Mayor of New Haven), et al. The city's Civil Service Commission threw out the results of the 2003 promotion tests for promotion because no African-American and possibly two Hispanic candidates would have been promoted to the seven captain or eight lieutenant openings The U.S. Supreme Court has an opportunity to make a "landmark decision."

Test Results
In November and December, 2003 the fire department administered its promotion exams for captain and lieutenant. The city had reportedly paid $100,000 to an Illinois company, IO Solutions, Inc., a seven-year-old company that specializes in entry-level and promotion exams for fire and police departments.

Unfortunately, the 2003 test results were so disappointing that the mayor asked the city's Civil Service Commission to not certify the results. By a tie vote of 2 to 2, the Commission, after several days of hearings, refused to certify the results.

Captain's Test: The captain's test had 41 applicants, 25 Caucasians, eight African-Americans, and eight Hispanics. Per the Collective Bargaining Agreement with the union, the written exam counted for 60 percent of the candidate's final score, and the oral exam was 40 percent. The exam was passed with a total score of at least 70 points by 22, including only three African-Americans. The top 10 scores were by eight Caucasians, and two Hispanics. The Hispanics ranked seven, eight and 13. The African-American candidates ranked 16, 19 and 22.

Therefore, of the seven open captain positions ("rule of three" required one of top three on list be promoted each time), no African-Americans and only two Hispanics would likely be promoted.

Lieutenant's Test
The lieutenant's test had 77 applicants, including 43 Caucasians, 15 Hispanics and 19 African-Americans. Once again, per the Collective Bargaining Agreement with the union, the written exam counted for 60 percent of the candidate's final score and the oral exam was 40 percent. Forty-four applicants passed with a total score of at least 70 points. The top 13 scorers were Caucasian. The Hispanic applicants ranked 27, 28 and 31 and African-Americans ranked 14, 15, 16, 20, 22 and 24.

Therefore, of the eight vacant lieutenant positions, none of the African-American and Hispanic candidates would likely be promoted.

The promotions have not occurred and the officer positions have been temporarily occupied by acting captains and lieutenants.

In June 2004, Firefighter Frank Ricci and others retained legal counsel, who filed an appeal to the state's Commission on Human Rights and Opportunities (CHRO). The commission ruled for the city.

On Feb. 9, 2005, a lawsuit was filed in U.S. District Court in New Haven, and assigned to District Judge Janet Bond Arterton. On Sept. 28, 2006, the judge dismissed the lawsuit, granting summary judgment to the city. The firefighters appealed to the U.S. Court of Appeals for the Second Circuit in New York City. After hearing oral arguments by legal counsel for both sides, a three-judge panel upheld the dismissal of the lawsuit on Feb. 15, 2008. The firefighters sought a rehearing "en banc" by all the judges on the Court of Appeal, which was denied on June 12, 2008 (six of the 13 judges dissented; significantly they urged the U.S. Supreme Court to take this case "of first impression").

U.S. Court of Appeals - Dissent
On June 12, 2008, six circuit judges, dissenting from refusal of the seven other active judges to hear the appeal "en banc" (entire court), urged the Supreme Court to review the case.

"This appeal raises important questions of first impression in our Circuit - and indeed, in the nation - regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of the examination yielded too many qualified applicants of one race and not enough of another?"

"[T]his Court has failed to grapple with the questions of exceptional importance raised in this appeal. If the Ricci plaintiffs are to obtain an opinion from a reviewing court, they must now look to the Supreme Court. Their claims are worthy of that review."

-- Dissenting opinion by Circuit Judge Jose A. Cabranes; 530 F.3d 88, 2008 U.S. App. LEXIS 12568 (2d Cir. June 12, 2008)

U.S. District Court - EEOC "Four-Fifth's" Rule
Judge Janet Bond Arterton wrote a 48-page opinion, dismissing the firefighters' lawsuit which claimed the city of New Haven had violated Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the 14th Amendment, 42 U.S.C. 1985 (deprivation of rights by government agents) and First Amendment to U.S. Constitution. 554 F. Supp.2d 142, 2006 U.S. Dist. LEXIS 73277 (September 28, 2006).

The Judge relied on the U.S. Equal Employment Opportunity (EEOC) guidelines:

"(P)laintiffs do not dispute that the results showed a racially adverse impact on African-American candidates for both the Lieutenant and Captain positions, as judged by the EEOC Guidelines... Thus, it is necessarily undisputed that, had minority firefighters challenged the results of the examinations, the City would have been in a position of defending tests that, under applicable Guidelines, presumptively had a disparate racial impact."

"Specifically, the EEOC 'four-fifths rule' provides that a selection tool that yields '[a] selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will generally not be regarded by Federal enforcement agencies as evidence of adverse impact.' 29 CFR 1607.4(D)."

The Judge pointed out that for the lieutenant's promotion, the passage rate for Caucasians was 60.5 percent, for African-Americans 31.6 percent and for Hispanics 20 percent. Applying the EEOC Guidelines, the four-fifths score would be 48 percent. The court concluded:

"African-Americans had a pass rate that was about half the pass rate for Caucasians, yielding an adverse impact ration ('AIR") of 0.59, significantly below the AIR of 0.80 that is presumed to not evidence adverse impact under the EEOC Guidelines."

The judge also reviewed the Captain's test, where Caucasians had a pass rate of 88%. While plaintiffs' assert the pass rate of African-Americans was 32 percent, while the city computes their pass rate at 37.5 percent, either calculation still results in an adverse impact finding:

"[T]he pass rate for Caucasians was 88%, which is more than double that of minorities and thus by either party's statistic an AIR far below the four-fifth's guideline is yielded."

The Court rejected the plaintiff's argument that the city should have conducted a "validation study" rather than thrown out the test results. The EEOC guidelines "do not require or mandate a validity study where an employer decided against using a certain election procedure that manifests this impact and plaintiffs' argument that defendants violated Title VII by refusing to conduct a validity study before rejecting testing results is unpersuasive."

Assessment Center; Lower Written Percent and Increase Oral Percent
The Judge also favorably cited the testimony of Dr. Christopher Hornick, Ph.D., and industrial/organizational psychologist from Texas, who testified via telephone before the New Haven Civil Service Commission. He favored the use on assessment centers in the promotion process.

The judge noted that Dr. Hornick also focused on the 60/40 (60 percent written 40 percent oral) weighting system used by New Haven:

"Dr. Hornick and representatives of the black firefighters' union suggested that the 60/40 weighting system for the oral and written examinations could have produced an adverse impact. The testimony suggested that changing the weighing system yielded increased minority pass rates and diversity in the ranks of Bridgeport firefighters and officers."

The judge rejected the plaintiffs' argument that unless the city can show why an examination had an adverse impact then the city must proceed with the promotions:

"[I]t is not the case that defendants must certify a test where they cannot pinpoint its deficiency explaining its disparate impact under the four-fifth's rule simply because they have not yet formulated a better selection process."

The judge concluded that even if mayor, for purely political reasons, wanted to dump the test results and start again, this was not illegal.

"Defendants' motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, does not, as a matter of law, constitute discriminatory intent, and therefore such evidence is insufficient for plaintiffs to prevail on their Title VII claim."

The Supreme Court has an opportunity to issue a "landmark decision." The questions presented are now posted on the Court's website, including: "When a content-valid civil-service examination and race-neutral selection process yield unintended racial disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected."

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LARRY BENNETT, a Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course, and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. The newsletter can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at