Sixth Circuit Reverses Dismissal of Discriminatory Hiring Claim Where No Candidate Was Ever Hired

 

Earlier this month, the Sixth Circuit Court of Appeals reversed the dismissal of a reverse sex discrimination complaint brought under §1983 and Title IX when the college cancelled the faculty search instead of hiring the top-rated candidate because of the Dean’s alleged preference to hire female candidates.  Charlton-Perkins v. Univ. of  Cincinnati, No. 21-3840 (6^th Cir. 6-3-22).  A plaintiff need not have a valid claim in order to have standing to assert it, so it was irrelevant to a ripeness inquiry whether the position had ever been filed or not.  The plaintiff suffered a concrete injury when he was not hired.  The plaintiff also need not have alleged that less qualified female candidates had been hired instead of him when other evidence of discrimination was present.  “Instead, to state an employment discrimination claim, [the plaintiff] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”  In this case, the plaintiff alleged that the job requisition was cancelled to avoid hiring him because he was male and that was sufficient to allege unlawful discrimination.   

According to the Court’s decision, after considering 62 applications, the plaintiff had been the top-rated candidate in a faculty search conducted by the department.  However, the Dean insisted that both next ranked female candidates be hired instead.  When the committee chair objected, the Dean cancelled the faculty requisition altogether claiming that the process had been tainted by a potential conflict of interest that the Diversity Officer had earlier approved.  The plaintiff sued and the trial court dismissed the complaint on the grounds that his claims were not ripe because he could not have been legally “injured” when the position had never been filled after the Dean cancelled the process and so the plaintiff could not prove that female candidates had been treated better.  

On appeal, the Court found that the trial court had conflated a ripeness inquiry with an analysis of the merits of the claims presented.  It was enough that the plaintiff did not get the posted job to show that he had suffered an injury sufficient to assert a ripe claim. “Ripeness is really, or at least paradigmatically, a doctrine about pre-enforcement challenges. That is why the relevant factors—whether the claim “concerns a dispute that is likely to come to pass” and whether there would be “hardship to the parties of withholding court consideration”—sound so out of place in the context of [this] claim.”  Indeed, the plaintiff “himself could later get the job and it would not erase the fact that he was denied the opportunity to get it in the first instance in 2018. So his injury is not speculative or even imminent; it is instead “actual” because the denial has undisputedly already occurred.” 

The Court also rejected the university’s argument that his claim could not be ripe if he suffered no adverse employment action.  “That reasoning is erroneous, again, because whether the plaintiff suffered an injury in fact does not necessarily hinge upon the substantive requirements of any particular cause of action.”

The Court also rejected the argument that the plaintiff had failed to plead a prima facie case sex discrimination. “Instead, to state an employment discrimination claim, [he] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”  While alleging that someone else was given the position is a default rule for proving employment discrimination, it is not the only manner in which unlawful discrimination can be proved or alleged. “Instead, to state an employment discrimination claim, [the plaintiff] only needed to plead sufficient facts from which we could plausibly conclude that defendants failed to hire him because of his gender.”

We understand [the plaintiff] to make such a claim here—that defendants not only failed to hire him because of his gender, but they then canceled the search itself as a pretext to conceal the discriminatory reason for the failure to hire.

In particular, the plaintiff alleged “that defendants canceled the search to facilitate their allegedly unlawful gender discrimination against [him]. There was thus no need for him to additionally allege that somebody else filled the (canceled) position.”

The Court also rejected the argument that cancelling the hiring process purged any discrimination because other court decisions in which such purging had occurred resulted in new job searches without the taint of discrimination.  In contrast, the university here never re-opened the job search which would have given the plaintiff another opportunity to apply and be hired. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Obtains $1.1M Settlement for Male Employees Denied Equal Paid Baby Bonding Time as New Moms

Yesterday, the EEOC announced the $1.1M settlement of a class action lawsuit asserting reverse discrimination under the Equal Pay Act and Title VII in favor of 210 new fathers who were denied parental leave benefits provided to new mothers by the Estee Lauder Company. The EEOC alleged in the lawsuit that it filed in the Eastern District of Pennsylvania at Civil Action No. 2:17-cv-03897-JP that the employer provided “new fathers, less paid leave to bond with a newborn, or with a newly adopted or fostered child, than it provided new mothers. The parental leave at issue was separate from medical leave received by mothers for childbirth and related issues. The EEOC also alleged that the company unlawfully denied new fathers return-to-work benefits provided to new mothers, such as temporary modified work schedules, to ease the transition to work after the arrival of a new child and exhaustion of paid parental leave.”  In particular, male employees received two weeks of paid parental leave, compared to the six weeks of parental leave that female employees received after their medical leaves had ended.

The Consent Decree, which was entered yesterday, requires Estee Lauder to administer parental leave and return-to-work policies in a non-discriminatory manner.  Estee Lauder recently implemented “a revised parental leave policy that provides all eligible employees, regardless of gender or care­giver status, the same 20 weeks of paid leave for child bonding and the same six-week flexibility period upon returning to work. For biological mothers, these parental paid leave benefits begin after any period of medical leave occasioned by childbirth. The benefits apply retroactively to all employees who experi­enced a qualifying event (e.g. birth, adoption, foster placement) since Jan. 1, 2018. The decree also requires that Estée Lauder provide training on unlawful sex discrimination and allow monitoring by the EEOC.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney

Franklin County Appeals Court Remands Incentive Compensation Claim and Dismisses Whistleblower and Reverse Discrimination Claims

Last week, a unanimous Franklin County Court of Appeals affirmed the dismissal on summary judgment of whistleblower and reverse race discrimination claims, but remanded the highly-compensated plaintiff’s equitable claims for a six-figure profit bonus on the grounds that the written bonus plan was unenforceable to bar his equitable claims because there was no evidence that the plaintiff knew about or had agreed to its terms and because the employer’s “promises” to award a bonus in its unfettered discretion were illusory. Pohmer v. JPMorgan Chase Bank, N.A., 2015-Ohio-1229 (3-31-15).  In affirming the dismissal of the race discrimination claim, the Court agreed that the plaintiff had not shown that the defendant employer was unusual in discriminating against the majority, that he was similarly situated to his supervisor, or that the explanation for his termination (violating the employer’s technology policy by inappropriate and personal use of his blackberry and email) was pretextual.  He could not prevail on his whistleblower claim because he could not prove that he had ever made any relevant complaints to his employer in writing and the trial court did not abuse its discretion in refusing to compel additional electronic discovery that was unlikely to reveal additional relevant evidence without exorbitant costs. 

According to the Court’s opinion, the plaintiff had received very favorable performance evaluations for over a decade, the most recent of which was in December 2011.  He had been assured in writing that he would be receiving a 4.5% profit bonus for 2011.  However, in a random review of his text messages and emails, the employer discovered that he had been sending inappropriate sexual-themed emails and messages to his children’s babysitter and co-workers in violation of the employer’s technology code of conduct.  He was soon terminated in mid-January 2012.  A few days later, the employer set the amount of discretionary incentive compensation and awarded bonuses to remaining employees a few weeks later.  The plaintiff filed suit and alleged, among other things, that he was subjected to reverse race discrimination because his supervisor also sent inappropriate emails and was not fired.  Second, he claimed that he had actually been fired in retaliation for reporting to his supervisor that one of the employer’s financial product campaigns was an illegal scam.  However, he could not produce any written evidence that he had ever made such an allegation prior to his termination despite the employer’s production of thousands of pages of emails and texts messages.  He also claimed that he was entitled to his profit bonus since he had earned it prior to his termination.

Incentive Compensation.  The trial court had dismissed his claim for his incentive compensation on the grounds that the employer’s Performance Based Incentive Compensation Plan (PBIC) was a binding implied-in-fact contract, thus barring any equitable claim under the theories of unjust enrichment or quantum meruit.   Pursuant to the terms of the PBIC, the Plaintiff was not entitled to any profit bonus or incentive compensation unless he was still employed on the date when the profit bonus was actually paid.  However, the Court of Appeals found that the PBIC could not be a contract since there was no evidence that the plaintiff even knew about the PBIC, let alone agreed to it.   All that the employer produced was an unsigned plan document and not any communications to the Plaintiff about the PBIC or indication that the Plaintiff’s employment and incentive compensation were subject to the PBIC.  Moreover, to the extent that the PBIC contained any promises, they were illusory (and thus, non-binding) since the employer retained “sole and absolute discretion” as to when, whether, and in what amount to award bonuses.  In contrast, the plaintiff produced evidence of a powerpoint presentation about the incentive compensation he was eligible to earn for that year and an email from his supervisor about the percentage of his profit bonus; neither exhibit made any reference to the PBIC or any requirement that he needed to still be employed on the date that the bonus was paid.

The doctrine of unjust enrichment “applies when a benefit is conferred and it would be inequitable to permit the benefitting party to retain the benefit without compensating the conferring party.” . . . A claim for quantum meruit shares the same essential elements as a claim for unjust enrichment, and both doctrines are equitable doctrines.  . . .  the two doctrines differ, however, when calculating damages.  The damages for unjust enrichment are " ' "the amount the defendant benefited," ' " while the damages for quantum meruit are " ' "the measure of the value of the plaintiff's services, less any damage suffered by the other party." ' "

 . . . 

"A contract is illusory only when by its terms the promisor retains an unlimited right to determine the nature or extent of his performance; the unlimited right, in effect, destroys his promise and thus makes it merely illusory." . . . . In deciding that the PBIC Plan is an illusory contract with respect to [the plaintiff], we do not mean to say that the PBIC Plan would be illusory under all circumstances. This is not a case where [the plaintiff] was made aware of the terms of the PBIC Plan and thereby assented to the PBIC's terms in exchange for his continued employment with JPMC.

Reverse Race Discrimination.  The Court of Appeals affirmed the dismissal of this claim because the Plaintiff failed to meet his prima facie case or show that the employer’s explanation was pretextual.  First, the Court adopted the heightened burden of proof for a reverse race discrimination claim, which requires evidence of “background circumstances supporting the inference that [the defendant employer] was the unusual employer who discriminated against non-minority employees.”  The plaintiff could not meet this burden, although he correctly argued that some courts have questioned the correctness of using a modified burden of proof in any race discrimination claim.    

In any event, the Court found that the Plaintiff did not identify any similarly situated non-white employees who were treated better.   The Plaintiff identified his supervisor for sending inappropriate personal emails because he only received a disciplinary warning, but the Court found him not to be similarly situated “in all respects” (i.e., “ 'all of the relevant aspects of his employment situation were "nearly identical" to those of the [comparable employee's] employment situation.'").  

Thus, to be deemed "similarly situated," "the comparables 'must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it.'

They obviously did not report to the same supervisor.  “[A] supervisor's "position of authority within the company create[s] a meaningful distinction" that "explains [the employer's] different treatment of the two.” More importantly, the employer did not learn of the supervisor’s alleged misconduct until the plaintiff raised it after his termination (presumably during his deposition).  “Other factors may have been at play including a discrepancy in the volume, frequency, and level of inappropriateness contained in the emails of each of the two men.”  

Ultimately, the Court found that the plaintiff could not show that his termination for admittedly violating the employer’s code of conduct was pretextual.   He could not “demonstrate that the proffered reason ‘(1) has no basis in fact, (2) did not actually motivate the employer's challenged conduct, or (3) was insufficient to warrant the challenged conduct.’"  Importantly, he could not show that the employer knew of any other similar violations of the code of conduct (including that of his supervisor) at the time of the Plaintiff’s termination in January 2012.   

Whistleblowing.  The trial and appellate courts both concluded that the plaintiff could not prevail on his whistleblower claim because he could not satisfy the statutory requirement that the complaint be made in writing to the employer after first making a verbal report.  The employer had produced several thousand pages of documents in discovery, including emails and text messages.  The plaintiff insisted that he had texted and/or emailed his supervisor (in addition to personal conversations) about his objections to the legality of a product campaign.  However, his alleged objections were not reflected in the documents produced in discovery.  Therefore, he could not satisfy his statutory burden of proof under Ohio’s whistleblower statute.   

The Plaintiff filed a motion to compel a forensic examination of his email and text mail boxes to ensure that none of his messages were inappropriately deleted by the defendant employer.  However, the trial court denied that discovery motion on the grounds that it was “unlikely to lead to admissible evidence and disproportionately costly.”  The appellate court found this not to be an abuse of discretion in light of the thousands of pages produced in discovery.  Moreover, it noted that the Plaintiff’s  

argument has less to do with the adequacy of the discovery process and more to do with [his] dissatisfaction that he did not discover sufficient evidence to support his claims. The trial court noted it had made an effort throughout the case "to keep discovery proportionate to the issues, and to sensibly minimize the financial cost and time burden which electronic discovery might otherwise require."

Indeed, the supervisor denied ever receiving such a written report and the Plaintiff failed to mention any written objections about the product campaign in his own deposition.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Upholds Injunction Requiring Firefighter Promotions Based on Disparate Impact from Promotional Examination

Yesterday, the Sixth Circuit Court of Appeals found that a district court did not abuse its discretion in ordering the promotion of 18 white, minority and older plaintiffs to lieutenant and captain positions in the Akron fire department. Howe v. City of Akron, No. 11-3750 (6^th Cir. 7-22-13). The plaintiffs alleged that the 2004 promotional test caused a disparate impact in promotions among minorities and officers over the age of 40 seeking a promotion to lieutenant and among white officers seeking promotion to captain. Among the interesting conclusions in the opinion, the Court relieved the plaintiffs of the burden of establishing which part of the promotional test (i.e., written multiple-choice examination, interview, oral assessment, consideration of seniority level, and written work exercise or group exercise) or element of the promotional process constituted the specific employment practice being challenged as causing the disparate impact without having to show that the elements were incapable of separation. Second, the Court permitted the plaintiffs to prevail by showing there was a disparate impact in the rate of promotions even though there was no statistical disparity in the pass rate on the promotional test because the employees were promoted in rank order of their test scores. Third, the Court found that the trial court had not been required to instruct the jury about the "unusual employer" which engages in reverse discrimination because the employer failed to object during the charge conference and because this was a disparate impact (where motive is not an issue) instead of a disparate treatment case (where motive is an issue). Fourth, because, among other things, the City failed to suggest how to distinguish between worthy and unworthy plaintiffs, there was no abuse of discretion in ordering promotions even though the City had not budgeted for so many promotions and each of the plaintiffs only had a 29% chance of being promoted in the absence of discrimination. Fifth, a delay in promotions necessarily constitutes irreparable injuries to firefighters and back pay is not a sufficient remedy where the lack of experience from a non-promotion will adversely affect the plaintiffs in the next round of promotions. The Court also refused to consider harm to minority non-plaintiff employees who scored higher on the test and would be bypassed by the court-ordered promotions.

 According to the Court's opinion, the liability case was tried in 2008 to a jury, which found the City to have unlawfully discriminated against the 23 plaintiffs – 12 white captain candidates on the basis of race, 8 lieutenant candidates on the basis of age and 3 African-American lieutenant candidates on the basis of age and race. Although the Chief was permitted to interview candidates and select from among a ranked list of the top candidates for each promotion, he always selected the person with the highest test score. There was no statistical disparity in the pass rates on the exam, but there was a statistical disparity in the rate of promotions. Upon the commencement of the litigation, the City stopped making regular promotions off the list and, by July 2011, the Court concluded that there were 25 available vacancies in which to promote the successful plaintiffs and ordered the promotions of 18 plaintiffs. The City appealed the order. The Court also held a new trial on damages in November 2012 and indicated that it might reconsider the injunctive order to promote the plaintiffs. However, no final judgment has been rendered to date.

 In a Title VII case, the plaintiff-employee must make out a prima facie case wherein he identifies "a particular employment practice" that "caused a significant adverse effect on a protected group."

The City argues, citing Grant v. Metro. Gov't of Nashville and Davidson Cnty., 446 F. App'x 737 (6th Cir. 2011), that the district court erred as a matter of law by permitting Plaintiffs to identify the promotional process in its entirety as a specific employment practice without requiring Plaintiffs to first show that the elements of the process were incapable of separation. According to the City, the only employment practices identified by Plaintiffs were the promotional exams, which cannot be said to have had an adverse impact because comparing pass rates did not demonstrate disparate impact based on race or age.

The Court disagreed: "The challenged promotional process in this case is easily distinguishable from that in Grant. Here, the City promoted candidates in rank-order by score results (where the score was the sum of the candidate's exam score plus seniority)."
 
The City next argued that it was an error to allow Plaintiffs to demonstrate an adverse effect from the examination by applying the "four-fifths rule" to the rate of promotions instead of to the exam pass rates. (This rule provides that "[a] selection rate for any race, sex, or ethnic group which is less than four-fifths . . . of the rate for the group with the highest rate" be "generally . . . regarded . . . as evidence of adverse impact." 29 C.F.R. § 1607.4 (D)). "Because we agree with the district court that the promotional process in this case constitutes a specific employment practice, we must also agree that the outcomes of that practice—promotion rates—are the proper metric for determining "adverse effect" or lack thereof." The City did not dispute that application of the rule showed a disparate impact in the promotion rates of minorities and older employees to the lieutenant position. While the City argued that the rule should have been applied to the pass-fail ratios from the examination, the plaintiffs successfully argued that this would be inappropriate where the applicants are promoted based on their test score. The Court refused to follow its prior unpublished decision in United Black Firefighters Ass'n v. City of Akron, 81 F.3d 161, at *2 (6th Cir. 1996) where it noted that the "District Court properly looked to the examination pass rate for black candidates, not the number of actual promotions . . . ."). Moreover, the Court found that the City's use of the "rule of three" (where the top three candidates were considered for each promotion) did not make a difference here where the Chief always promoted the candidate with the top score.
 
The City also disputed that there was any unlawful disparate impact based on race in the captain promotions. It challenged the trial court's refusal to instruct the jury that the plaintiffs must prove that the City was the "unusual employer" that engaged in reverse discrimination. However, the Court found that this objection was waived by not raising it during the charge conference even though it had raised this argument at the summary judgment stage. Moreover, the Court explained that it has had misgivings about the "unusual employer" rule and had never applied it in a disparate impact case where motive – unlike in disparate treatment cases – is irrelevant.
 
While the Court was sympathetic to the City's argument that not all of the plaintiffs would have been promoted in the absence of discrimination, all of them had proven a likelihood to prevail on the merits. 
 

Assuming, for argument's sake, that the City correctly estimates that the average candidate in this case would have only a 29% chance of promotion, there is no way for the district court to give each candidate 29% of a promotion while waiting for a final judgment. Additionally, the City has provided no basis on which to distinguish between worthy and unworthy Plaintiffs.

Given that Plaintiffs have demonstrated a substantial likelihood of success on the merits as to liability and there is no way to provide a partial injunctive remedy, there is a sufficient likelihood of success as to individual promotions to warrant a preliminary injunction.

The Court also rejected the City's argument that the plaintiffs had failed to show irreparable injury because of a possible award of back pay. "Among other things, the district court noted that, without promotions, Plaintiffs will be unable to gain experience and unable to seek the next rank during the following round of testing." Moreover, "this Court has previously found that promotion delays constitute irreparable injury for firefighters."

 The Court also rejected the City's argument that 10 minority non-plaintiff officers would be harmed by promoting 8 older, white plaintiffs officers ahead of them because the City failed to explain whether the 10 non-plaintiffs would be promoted in the absence of the Court's order and because the City failed to prove that the harm would be caused from the Court's order rather than its own inaction in halting all promotions during the pendency of the litigation.

 NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

 

Franklin County Court of Appeals Rejects Reverse Sex/Wage Discrimination Claim

Last week, the Franklin County Court of Appeal affirmed summary judgment in favor of an employer concerning a wage discrimination claim brought under Ohio Revised Code 4117.17 by a male engineer-in-training on account of a higher paid engineer-in-training who worked in a different work group. Lang v. Columbus Div. of Power and Water, 2012-Ohio-2037. Both jobs required a similar level of prior work and educational experience. However, in comparing the skills, duties, effort and responsibility required by the two jobs, the Court found that the jobs were not equivalent and, thus, not similarly situated. The Court also found that the male plaintiff also failed to prove that the defendant was the unusual employer that discriminates against the majority.

According to the Court’s opinion, Ohio courts follow federal Equal Pay Act precedent. The legal analysis “depends not on job titles or classifications, but on actual job requirements and performance.” An analysis of the skills required by a job “looks at factors such as experience, training, education, and ability” of the job, not the incumbent employees. Her job required more training than his job. An analysis of the effort required by a job concerns:

the measurement of the physical or mental exertion needed for the performance of a job. Job factors which cause mental fatigue and stress, as well as those which alleviate fatigue, are to be considered in determining the effort required by the job. The definition of "effort" encompasses the total requirements of a job.

In this case, her job required working outside and climbing water towers, working in confined spaces, etc. In contrast, the plaintiff worked in an office. Her job also required more responsibility because she acted as the back-up supervisor of employees. The plaintiff did not supervise any staff. Therefore, their jobs were not equivalent or subject to the same pay.

The Court also rejected a reverse discrimination theory based only on the fact that there were three women involved management because there were male managers also involved in establishing pay rates. Moreover, two males recommended against promoting the plaintiff.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Settles Class Action Reverse Race Discrimination Lawsuit for $246.5K

On Friday, the EEOC announced that it was settling a class action reverse race discrimination lawsuit brought in federal court in Indianapolis, Indiana against a discount clothing retailer for $246.5K. According to the press release, "Dots' Merrillville, Ind., clothing store denied jobs on a systemic basis to white applicants since at least April 1, 2007. During that time, the EEOC contended, Dots regularly hired black entry-level applicants for sales positions, but excluded white applicants who were equally or better qualified." In addition,

The consent decree settling the suit provides that the settlement proceeds will be distributed to 32 class members. The decree also requires Dots to notify class members of open sales positions for a period of 18 months and to offer them interviews if they are still interested in employment with the company. Dots agreed to cease any further discrimination against white applicants and not to retaliate against applicants or employees who exercise their rights to complain about discrimination or assist in an investigation or discrimination-related proceeding. Dots will post a notice of non-discrimination at each of its facilities in Indiana and Illinois under its District 11 and train its managers and employees involved in the hiring process. Dots will also report on all hiring at its Merrillville location for a three-year period and will submit reports to EEOC detailing its compliance with the decree

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: Fear of Race Discrimination Lawsuit Cannot Justify Reverse or Other Intentional Race Discrimination if Employer Has Valid Defenses.

In a highly anticipated decision, a 5-4 Supreme Court today reversed a summary judgment decision previously approved by the Supreme Court nominee Sonia Sotomayor. Ricci v. DeStafano, No. 07-1428. The lower courts had upheld the City of New Haven, Connecticut in failing to certify the results of a civil service promotional examination for firefighters on the grounds that the City was concerned that it would be sued for disparate impact race discrimination if it promoted any firefighters based on the test because mostly white and Hispanic firefighters passed the exam and only 9 of the 27 African-American firefighters passed. Because the City’s decision was based entirely on the race of the successful and unsuccessful test takers, it necessarily implicated the intentional discrimination provisions of Title VII of the Civil Right Act. The Court held 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.” The employer cannot justify its actions based solely on the fact that the potential plaintiffs can prove only a prima facie case of discrimination; rather, the employer must also consider its potential defenses before making a race-conscious decision. Because that “strong evidence” was lacking in this case, the Court not only reversed summary judgment for the City it directed that the plaintiffs were entitled to summary judgment on liability.

The Background

According to the Court’s decision, the City Charter required the City to promote firefighters into officer positions based on how they ranked on promotional examinations. The examination consisted of both written and oral portions and required a certain amount of prior job experience and education. The experienced consulting firm hired to design the test analyzed the jobs at issue by interviewing, questioning and observing the incumbent officers.

At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates. . . .

For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. [Each test consisted of 100 questions and] was written below a 10th grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken.

IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors.

All of the assessors were from outside Connecticut and received special training. “Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members” (i.e., one white, one Hispanic and one black).

Following the November 2003 examinations, 34 out of the 77 (or 44%) of the candidates passed the lieutenant examination: 25 out of 43 [58%] whites, 6 out of 19 [ 31.5%] blacks, and 3 out of 15 [20%] Hispanics. Because there were 8 vacancies at the time of the examination, the top ten scores were eligible for immediate promotion. All of them were white.

As for the captain exam, 22 of the 41 (or 54%) of the candidates passed: 16 out of 25 whites (64%), 3 out of 8 blacks (37.5%), and 3 out of 8 Hispanics (37.5%). Because there were seven captain vacancies at the time of the examination, 9 candidates were eligible to be considered for an immediate promotion to captain—7 whites and 2 Hispanics.

Although the City had a contractual right to a technical report from the consultant analyzing the test results, instead the City immediately objected to the facial racial disparity in the results. The City told the Civil Service Board that the test results had a disparate impact. Some firefighters – without knowing how they scored – advocated certifying the test results because they had spent a lot of money buying studying materials and a lot of time studying and a new test would take years to develop and administer. Others objected on the grounds that the study materials were too long and expensive. Some suggested that a validation study be conducted.

The Board ultimately requested the consultant to explain how the test had been developed and conducted and also requested an outside panel of experts to review the situation. One of those experts was a competitor of the consultant and he opined that the test results were not surprising, criticized the lack of local input into the test questions and suggested the use of an assessment center which required the candidates to demonstrate their knowledge instead of merely answering questions on a test or in an interview. Another witness – who was black – from the Department of Homeland Security said that the test reviewed relevant and job related information. He suggested that the disparity was somewhat related to the fact that more white candidates took the exam than black candidates. The final “expert” was a college professor who know nothing about firefighting, but who opined that “regardless of what kind of written test we give in this country . . . we can just about predict how many people will pass who are members of under-represented groups. And your data are not that inconsistent with what predictions would say were the case.” Although the results may have been influenced by the fact that the job analysis surveys were initially completed mostly by white firefighters, “no matter what test the City had administered, it would have revealed “a disparity between blacks and whites, Hispanics and whites,” particularly on a written test.” The Board deadlocked on whether to certify the test results, which meant that the results were not certified.

The Litigation

The plaintiffs – 17 white firefighters and 1 Hispanic firefighter – filed suit under §§ 1983 and 1985 and under Title VII against the City and other defendants. The District Court granted summary judgment to the defendants and it was affirmed on appeal. The Second Circuit then considered whether to reconsider the decision en banc, but voted 7-6 against reconsideration.

The issue as framed by the Supreme Court:

The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.

While the lower courts found that intentional discrimination could be excused in order to potentially avoid disparate impact liability under Title VII, the Court did not think that this was necessarily so. The plaintiffs argued that it should never be a defense to intentional racial discrimination that the employer was attempting to avoid unintentional discrimination. The defense argued that good faith efforts to avoid unintentional disparate impact should excuse intentional race discrimination. The court found both parties’ arguments to be simplistic and unrealistic. It rejected racial quotas or employer practices seeking a preferred racial balance. It also refused to prefer the disparate treatment provisions of Title VII over the disparate impact provisions.

If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.
. . .
We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII—that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.

In reaching a compromise, the Court considered decisions in other areas where it had permitted intentional discrimination. “The Court has held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “‘strong basis in evidence’” that the remedial actions were necessary.”

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. . . . And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

In this case, the City defended its actions on the grounds that the test results had a disparate impact on a racial class (i.e., a neutral practice has a statistically disproportionate affect on a particular group). However, the Court pointed out that the disparate statistics constituted only a prima facie case and that the employer could have defended the results by showing that the test was job related and consistent with business necessity. At that point, the plaintiffs would have had to show that “the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.” In this case, there was no dispute that the group opposing the test results could have met a prima facie case and there was overwhelming evidence that the City could have met its burden of showing the job-related/business necessity defense. There was, however, a question about whether a reasonable alternative existed. The Court rejected challenges that weighing the written and oral portions of the exam differently might have produced different results or that utilizing an assessment center would have been available to the City at the time or produced a different result.

The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, . . . and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.
. . .
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.

The Court did not address the plaintiffs’ Equal Protection arguments and did

not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. . . . Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference

While employers may consider how to make its employment testing and processes more fair, “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

Insomniacs can read the full decision at http://http://Ricci.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

When an Affirmative Action Plan Constitutes Evidence of Reverse Discrimination.

Last month, the Ohio Court of Appeals in Dayton rendered a decision which highlights the need to conduct a focused availability analysis when preparing an affirmative action plan. In that case, the Court reversed a directed verdict in favor of the employer and reinstated a reverse race and gender discrimination claim for trial by a jury based, in part, on a sloppy affirmative action plan which relied simply on census data instead of a focused availability analysis. Mitchell v. Lemmie, 2007 Ohio 5757 (10/26/2007).

In Mitchell, the Plaintiff had applied to be promoted to a division manager position. That position had been filled by an African-American female who had no prior experience in that division (unlike the Plaintiff), who had worked her way up from a secretarial position and who had been placed in the position without any competitive hiring process. She and the Department Superintendent recommended to Lemmie, the City Manager, that plaintiff be promoted to replace her, but Lemmie refused without any explanation and a national search was conducted to fill the position. (This woman was also promoted two more times without a competitive process). The Plaintiff was ultimately ranked second of the available candidates and presumably should have received the job after the top and third ranked candidates withdrew from consideration, but Lemmie again without explanation refused to promote the Plaintiff into the position. There was testimony that she only gave the Plaintiff a brief courtesy interview for the job. She posted the job again for another national search, this time with an emphasis on recruiting qualified African-Americans. The position was then offered to an African-American male, who turned it down because of the low salary. The other two top candidates were rejected for other reasons. Finally, a female African-American was recommended to Lemmie and she was hired after applying and interviewing for the position. The successful candidate was paid $15,000 more than the Plaintiff had been paid while serving in an interim capacity.

The qualifications for the position remained the same throughout all of the searches.

Many years before the events of the litigation, the employer had adopted an affirmative action plan which professed a goal of employing individuals in the same number as reflected by the demographics of the local population. “While no applicant should ever be accepted or rejected for employment or promotion based solely on race or gender, the City recognizes Affirmative Action as a moral and legal responsibility. The race or sex of an applicant is a legitimate factor to be considered in selecting appointees to positions where certain demographic categories are underutilized from a group of candidates with nearly equal qualifications.” Ten percent of the performance evaluation of each division manager was to be based on compliance with the AAP. “Each department was given yearly objectives, which were to be included in the performance contract of each department director. These objectives were computed by a specific method, based on the percentages of African-Americans and women in the total general workforce of the City of Dayton (37% and 46%, respectively).” The AAP also provided that “[t]he formula used to calculate the number of minorities and females in the workforce was based solely on demographic information from the U.S. Census Bureau, with the terms “population, working or seeking employment” and “general workforce” to mean the general population of working age.

The Court found that the defendant employer’s failure to calculate its hiring goals based on the number of qualified women and minorities in the workforce (instead of based on the general working age population) doomed the AAP. When an AAP “ simply calculated imbalances in all categories according to the proportion of women in the area labor pool, and then directed that hiring be governed solely by those figures, its validity fairly [can] be called into question. This is because analysis of a more specialized labor pool normally is necessary in determining underrepresentation in some positions. If a plan failed to take distinctions in qualifications into account in providing guidance for actual employment decisions, it would dictate mere blind hiring by the numbers, for it would hold supervisors to ‘achievement of a particular percentage of minority employment or membership ... regardless of circumstances such as economic conditions or the number of available qualified minority applicants.” quoting Johnson v. Transportation Agency, Santa Clara County, Cal. (1987), 480 U.S. 616, 636.

Unlike the Johnson AAP, the Court noted that the defendant employer’s AAP “failed to acknowledge that imbalance cannot, in itself, justify taking race or sex into consideration. Also unlike the plan in Johnson, Dayton’s Plan calculates imbalances based solely upon the respective proportion of African-Americans and women in the local labor force (37% and 46%, respectively), not upon the proportion of skilled workers.” None of the hiring goals were based on an analysis of the local workforce with the requisite skills or education. “As structured, Dayton’s Plan dictates “mere blind hiring by the numbers.”

The Court agreed that use of an AAP by itself does not constitute unlawful discrimination. However, “the existence of an affirmative action plan, when combined with evidence that the plan was followed in an employment decision, is sufficient to constitute direct evidence of unlawful discrimination unless the plan is valid. * * * Furthermore, even when a defendant denies having acted pursuant to its affirmative action plan, if there is evidence that it may have done so, a jury must decide whether the defendant in fact acted pursuant to its stated plan.” quoting Bass v.Bd of County Commrs, Orange County, Fla. (11th Cir, 2001), 256 F.3d 1095, 1111. In fact, “an affirmative action plan may constitute direct evidence, even when a defendant denies having acted pursuant to its stated plan.” Id. Even in a reverse discrimination case based on the indirect method of proof, the AAP could be used to show background circumstances supporting conditions for reverse discrimination.

In reversing the employer’s directed verdict, the Court was also influenced by a number of factors, including:

• Lemmie’s failure to follow traditional hiring procedures. In particular, there had been evidence that the City Manager typically accepted the hiring recommendations of subordinates, but she rejected two recommendations to hire the Plaintiff;


• The employer’s inconsistency in implementation of the hiring process, such as appointment of other promotional candidates (in other positions) without competition, while the division manager position was subjected to several competitions and searches;


• Lemmie’s failure to articulate reasons to her subordinates (before the litigation commenced) for refusing to promote the Plaintiff. “While Lemmie may have felt that she was not obligated to explain her actions to anyone, the absence of an explanation at a time when it might logically have been expected is suspicious.”


• Lemmie’s membership and leadership position in an organization designed to increase the number of African-Americans as public service executives. Lemmie was an officer of a professional association that professed a “commitment to strengthen the position of blacks within the field of public administration, to increase the number of blacks appointed to executive positions of public service organizations, and to groom and prepare young aspiring administrators for senior public management in the years ahead.” Most of the local members worked for the City and the City paid the dues for a number of the member employees. Lemmie eventually offered the job to a female African-American applicant recommended to Lemmie through this organization even though no other candidate was sought at that time.


• The employer’s financial support of employee membership in NFBPA;


• During Lemmie’s tenure, only African-American and females were sent to executive and leadership training at the Executive Leadership Institute and the Leadership America Institute.


• There was also evidence that the successful candidate was not as qualified for the position as the Plaintiff.


• Lemmie cited factors for her decision which were not included on (and had been actually crossed off ) the interview rating sheets and disclaimed factors (such as union relations) which were included on the rating sheet (and on which only the Plaintiff had significant experience).
  
  
  Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/2/2007/2007-ohio-5757.pdf.
  
  NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.