It seems that no Supreme Court-compelled deed goes unpunished. Such is the case for the City of New Haven, Connecticut. In its landmark 2009 ruling in Ricci v. DeStefano, the Supreme Court concluded that New Haven, in violation of Title VII of the Civil Rights Act of 1964, intentionally discriminated against a group of white and Hispanic firefighters — including plaintiff Frank Ricci — when it rejected the results of two promotional exams because of the race of those whose top scores entitled them to the promotional vacancies at stake.
The City’s professed excuse was that no black firefighters could be promoted if the results were used (which turned out to be false). The Court found no evidence that the “tests were flawed” and ordered the City to certify the results.
But a new lawsuit filed by a black firefighter defies the Supreme Court’s holding. It will be up before the Supremes for consideration on May 17. New Haven has filed a petition for certiorari asking the Court to intervene and enforce its mandate, thereby relieving it from such post-remand suits brought by those disgruntled by the Ricci decision.
The Court should take the case and issue a summary and immediate reversal, with stern words of admonishment to the Second Circuit panel that disregarded the Supreme Court’s judgment and allowed essentially frivolous discrimination claims to be pursued against the City.
After years of discriminatory treatment of the white and Hispanic firefighters who filed the original Ricci lawsuit, New Haven actually followed the order of the Supreme Court and certified the tests, filling the promotional vacancies at issue. So the Ricci plaintiffs finally got the promotions they had been long denied. Significantly, among the 16 promoted to lieutenant were three black firefighters. .
But lying in wait was lawyer David N. Rosen, a visiting lecturer at Yale Law School and vocal detractor of the Supreme Court’s holding. He filed an EEOC charge on behalf of a black firefighter after New Haven certified the test results and promoted the Ricci firefighters, as it had been ordered to do by the Supreme Court! Rosen claimed that certification had a “disparate impact” on the black firefighter. Even the EEOC, which was hardly supportive of the Ricci plaintiffs, summarily dismissed the charge without investigation “in light of” the Ricci decision. But Rosen was not deterred — he proceeded with his suit, going so far as attempting to intervene in Ricci on remand from the Supreme Court, a move that prolonged proceedings and cost the parties much time and money to defeat.
The new lawsuit filed by Rosen was randomly assigned to Judge Charles S. Haight, a federal judge from the Southern District of New York, who was hearing cases in Connecticut. Rosen tried unsuccessfully to get the case transferred to Judge Janet Bond Arterton, the district court judge who originally threw out the claims of Frank Ricci and his colleagues and who sources in New Haven say was very unhappy about being overturned by the Supreme Court. Arterton even showed up at the Supreme Court’s oral arguments on Ricci, ensconcing herself in the audience amidst the firefighters whose careers would have been wrecked had her flawed Title VII theories carried the day.
Haight very wisely dismissed the lawsuit because it was foreclosed by the Supreme Court’s decision in Ricci. As Haight said, “this court is bound by the decision of the high court,” and what the Supreme Court held in Ricci “squarely forecloses” the claim by the black firefighter. What Rosen was trying to do was “circumvent” the Supreme Court’s order “by filing another lawsuit with respect to the same exams.” Rosen’s client could have intervened at anytime in the years that the original Ricci case was pending before the district court, but opted not to do so, even though all of the firefighters in New Haven “were acutely aware of the pendency of the Ricci litigation.”
Yet in an inexplicable decision, a three-judge panel of the Second Circuit Court of Appeals reinstated the new lawsuit, directly contravening the Supreme Court. The Second Circuit did this despite acknowledging that the Supreme Court had ordered New Haven to certify the promotional test results. It even quoted the Supreme Court’s statement that the City “would avoid” disparate-impact liability for certifying the test results. But the Second Circuit dismissed that statement as merely “dicta…perhaps attributable to a simple logical error.” It was the Second Circuit that made a “logical error” when it reinstated this lawsuit, not the Supreme Court in its holding.
The consequences are indeed ominous. If the Second Circuit ruling stands, employers all over the country will face liability on both ends of Title VII litigation with “two competing groups seeking the same job vacancies under conflicting discrimination theories.” The Ricci majority wisely envisioned the very lawsuit brought by Rosen. The Court was clear that it was resolving competing expectations of employers under the two dueling liability provisions. Having anticipated that someone like Rosen might, in reaction to the Ricci ruling, sue New Haven for disparate impact, the Court provided explicit guidance, holding that New Haven would avoid disparate impact liability based on the fact that had the City not certified the results, it would have been subject to disparate treatment liability.
The practical results of the Second Circuit decision — which may be what is being sought with this abusive lawsuit — could lead employers to abandon the use of all promotional exams. Otherwise, employers would face the prospects of being “whipsawed” between the two competing liability provisions of Title VII. As the City’s petition to the Supreme Court says, employers would “have to be prepared to promote two applicants to every available position: one to avoid a disparate impact and another to avoid disparate treatment.” That is not an exaggeration, but a reality.
The result of the Second Circuit’s mistaken decision is that New Haven has already been hit by a second disparate impact lawsuit filed by black firefighters. If the Supreme Court does not intervene and summarily reverse, the City is looking at five to 10 years of grueling (and expensive) litigation for following the Supreme Court’s order. As Frank Ricci points out in his amicus brief filed on behalf of the City, this has already had “a deleterious effect on the operations of the New Haven Fire Department and hamstrung the City’s filling of ever-increasing new vacancies in the department’s command ranks, stalling the careers of hundreds of firefighters.” Other amici, including the National League of Cities, note the dire consequences for cities and employers nationwide.
It would be fundamentally unfair to expose New Haven to disparate impact liability for implementing the very remedies that the Court mandated. Clearly, an employer’s compliance with a judicial mandate should not trigger further liability under Title VII. The only result more absurd than holding employers liable for following a court order would be for the Supreme Court to ignore the Second Circuit’s defiant challenge to its authority as the court of final review for questions of federal law. The Court should not tolerate imposition of such costly penalties on a party for obeying the Court’s own orders.
— Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and a former commissioner on the Federal Election Commission.