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Tuesday, August 16, 2011

Appeals Court Reinstates African-American Firefighter Suit

By Basil Katz

NEW YORK, Aug 15 (Reuters) - A U.S. appeals court on Monday reinstated a suit against the City of New Haven by an African-American firefighter who claimed the city's firefighter promotion exams were discriminatory.

In his opinion, chief Judge Dennis Jacobs of the 2nd U.S. Circuit Court of Appeals in New York, said that African-American firefighter Michael Briscoe was not precluded from suing New Haven, Connecticut. The ruling was surprising because a related, earlier ruling by the U.S. Supreme Court compelled New Haven to abide by the exam results. Jacobs' decision vacates a district court finding that sided with the city .

The case dates back to 2003, when New Haven sought to discard the results of a firefighter promotion exam where white firefighters significantly outperformed minorities. That act prompted a group of white firefighters and one hispanic firefighter to challenge the decision and sue New Haven.

The Supreme Court took up the case, Ricci v. DeStefano, in 2009. The court sided with the firefighters, ruling that New Haven had not shown sufficent evidence to prove that keeping the test results would have made it subject to disparate-impact liabity. Disparate impact laws were cemented under Title VII of the 1964 U.S. Civil Rights law.

Normally, that decision would have ended further litigation. But because Briscoe brought his claim separately, Jacobs ruled he had standing to sue New Haven, in spite of the conflicting Supreme Court decision.

In his opinion on Monday, Jacobs said that New Haven could not use the Supreme Court to shield it from Briscoe's disparate impact claims, and that the high court's opinion did not preclude him from suing.

"I think the opinion is essential to maintaining the vitality of the disparate impact theory of liability under Title VII," Briscoe's attorney, David Rosen, said.

Title VII, Rosen said, protects "against the arbitrary use of selection devices that continue to be barriers to employment for well-qualified workers across America who happen not to be good at the particular pencil and paper, multiple choice-format quiz that some employers still insist on using."

"At the end of the day, the City of New Haven believes that the U.S. Supreme Court held that certification of the promotional exams at issue in the Ricci v. DeStefano case should not result in disparate impact liability by African American firefighters after the fact," said City of New Haven Corporate Counsel Victor Bolden

The 2003 New Haven firefighter test at issue was 60 percent written and 40 percent oral. Briscoe in his lawsuit said that under a 30 percent written, 70 percent oral test he would have been promotable.

The case is Michael Briscoe v. The City of New Haven, 2nd U.S. Circuit Court of Appeals, No. 10-1975.

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