Is Ricci a Significant Procedural Case?
Much of the buzz about Ricci v. DeStefano before it was decided was that it raised an important equal protection question of the validity of Title VII’s disparate impact definition of discrimination because it requires employers to know and act on the racial consequences of its use of employment practices, such as employment tests. The Supreme Court, in a 5-4 decision, did not reach the question, though Justice Scalia, in his concurring opinion, said that the day is coming when the Court will have to address the question. In that regard, Ricci may be the Title VII analog to Northwester Austin Municipal Utility District No. One (NAMUDO) v. Holder. In NAMUDO, the Court avoided the question of the constitutionality of §5 of the Voting Rights Act by its interpretation of the statute. Richard Primus has an article coming out in the Michigan Law Review, The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, that discusses that issue. But, even without that issue, Ricci presents some significant questions. I will start with its procedural aspects. They will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought by an African-American testtaker who has been disadvantaged because New Haven has now used the test scores at issue in Ricci.
Proceduralists might see Ricci as of interest for two reasons. The first is that the Supreme Court reversed summary judgment for the defendants but, rather than remanding, the Court went ahead to grant summary judgment for the plaintiffs. How often does that happen? With 93 pages of slip opinions of which about two-thirds involved recitation of facts and the application of law to those facts, one would think at least on material issue of fact could be found. Is it that the Court lacked trust in the lower courts to ever get it right?
Some support for my hunch is based on the second procedural issue raised by a somewhat inscrutable sentence in the second last paragraph of Justice Kennedy’s opinion for the Court:
“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.”
Why this is inscrutable is that in Ricci, white plaintiffs ultimately prevailed by claiming they were victims of intentional disparate treatment when the defendant decided not to use the results of a promotion test. The City’s defense was that using the test scores would cause a disparate impact on minority testtakers. But the African-American, Hispanic and white testtakers who were benefited by the City’s decision not to use the test scores were not party to Ricci. How can their rights have been decided in that case?
Charlie Sullivan, my friend, co-author and in my experience one of the ultimate proceduralists, has raised the question whether the Court was indicating that Ricci had some preclusive effect on the action of those plaintiffs. For Charlie, that raised Martin v. Wilks, which was overturned by the Civil Rights Act of 1991. Ironically, Martin v Wilks was another firefighters’s case, again involving white plaintiffs. The white firefighters were negatively affected by actions taken by the City of Birmingham to implement a consent decree it had agreed to with the N.A.A.C.P. that settled a discrimination claim by African-American firefighters. The actions of the City that the white plaintiffs’ challenged in Martin v. Wilks were those that benefited black firefighters, which they claimed disadvantaged them. Because the white firefighters were not party to the action leading to the consent decree or to the decree itself, the Court found that they were not precluded by that decree from bringing a discrimination action. But Martin v.Wilks is no longer good law.
This is where is the 1991Act comes in: 42 U.S.C. §2000-e(n) provides two scenarios by which these disparate impact plaintiffs might be barred. The first is whether they had “actual notice of the proposed judgment” that “might adversely affect their interests” and they had a “reasonable opportunity to present objections.” Because the Supreme Court granted summary judgment in Ricci, which was the first time the City lost, there was no opportunity for the disparate impact plaintiffs to present their objections. But the question would be whether the potential for adverse action resulting from the Ricci case as it was working its way up to the Supreme Court should have clued them to the risk that their interests “might” be adversely affected. In other words, a lot depends on the meaning given the word “might.”
Alternatively, the question would be whether the City, when defending against the white plaintiffs’ disparate treatment claim, had “adequately represented” the disparate impact claims of these plaintiffs. The City tried to defend against a judgment on the disparate treatment ground by relying on the potential disparate impact liability if it had used the test scores. While disparate impact would in some sense be the same legal grounds whether it was used offensively or defensively, it seems odd that the earlier legal actions of the party these plaintiffs were now suing, the City, would be the basis for precluding their suit. The fox guarding the chicken coop, I think.
In Briscoe v. City of New Haven, Michael Briscoe’s claim is that, well before the challenged test was ever given, the City knew of the strong likelihood that if it used the 60/40 weighting favoring written test scores over oral interview scores would result in disparate impact against minority testtakers. Despite that knowledge, the City did nothing about it. Briscoe’s claim challenges the decision of the City to use the test in the first instance, before there were any known beneficiaries of its use and before there was any actual disparate impact on those who did not do well one the test. That arguably fits the Briscoe case within the Ricci exception from the application of disparate treatment theory to a time before there was any reliance interest in those who would be promoted if the test was given and the scores used for promotions. In contrast, Ricci focused on the City’s subsequent decision not to use the test scores for promotions once the test had been administered when the white plaintiffs were adversely affected by that decision.
The issue of the weighting of the written and oral elements of the promotion process was raised in Ricci, but the focus was not on whether that weighting caused the disparate impact or, if so, whether the weighting was job-related and justified by business necessity. Instead, the weighting issue was raised as a question at the surrebuttal stage of a disparate impact case. That is, whether the employment practice that has a disparate impact but also has been shown to be job-related and justified by business necessity nevertheless is unlawful because an alternative was available that the employer failed to use even though it had a lesser impact and served the employer’s interests. That is not the “same legal grounds” nor is it a “similar factual situation” that is being challenged in Briscoe. So, a good argument can be made that Michael Briscoe’s lawsuit has eluded the application of the preclusive rules set forth in the 1991 Civil Rights Act because it has escaped the application of Ricci entirely. Only time will tell.