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.
