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Buffalo Prevails in Race Discrimination Suit

The US Second Circuit Court of Appeals handed down a decision yesterday in a complicated race discrimination case involving the Buffalo Fire Department and the Men of Color Helping All Society, Inc., (M.O.C.H.A).

MOCHA sought to challenge promotional examinations for lieutenant held in 1998 and 2002 as having a disparate impact on black candidates. All tolled, two separate lawsuits and three separate appeals had been filed in the case. The 2nd Circuit referred to the three appeals as MOCHA I, MOCHA II, and MOCHA III. The July 30, 2012 decision addressed MOCHA II and MOCHA III. Quoting the court:

“A common question runs through these appeals, prompting us to hear them in tandem and now to decide them in a single opinion: Can an employer show that promotional examinations having a disparate impact on a protected class are job related and supported by business necessity when the job analysis that produced the test relied on data not specific to the employer at issue?”

Rather than give you my interpretation of the decision, here are the important points distilled down from 47 pages. (more…)

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Posted in Civil Suit, Constitutional Rights, Discrimination, Municipal Liability, Promotions

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No comments Posted by on July 31, 2012

Jacksonville Firefighters Hit With Second Discrimination Lawsuit

On the heels of a major discrimination lawsuit filed by the US Department of Justice against the Jacksonville Fire Rescue Department and Jacksonville Firefighters, IAFF Local 122, the US Equal Opportunity Employment Commission has filed separate discrimination suit against IAFF Local 122. The second suit was filed yesterday, April 30, 2012 in the same court as the previous case that was filed on April 23, 2012.

Both suits allege that written examinations used for promotional purposes within the department have a disparate impact on black candidates, and are “not job related and consistent with business necessity”. The second suit alleges that the union has “advocated for, acquiesced in, and in fact negotiated in favor of a promotional process that has had an adverse impact on black candidates”. The suit also contends that “the union has advocated for and negotiated in favor of the discriminatory promotional process each time a collective bargaining agreement was negotiated between 2004 and the present.”

Here is a copy of the two complaints.  DOJ Suit     EEOC Suit

I’ll throw this question out to the legal eagles out there: Isn’t the US DOJ and the US EEOC one party… the United States of America? Can one party maintain two separate lawsuits against the same entity over the exact same issue?

And perhaps the bigger question: what point is the EEOC trying to make? The DOJ lawsuit makes the point that the US government believes the union is partially responsible for the discrimination… but it appears that is not enough for the EEOC.

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Posted in Civil Suit, Constitutional Rights, Discrimination, Labor Law, Municipal Liability, Politics, Promotions

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4 comments Posted by on May 1, 2012

North Hudson Regional Fire Rescue Residency Rule Struck Down

On Tuesday, the US 3rd Circuit Court of Appeals handed down an important fire service ruling involving residency and discrimination.

The case involved the North Hudson Regional Fire & Rescue in New Jersey. The department had a residency requirement that all applicants must be a resident of one of the five communities making up the regional district. The district is 69.6% Hispanic, 22.9% white, and 3.4% African American. The department is 79.5% white, 19.2% Hispanic, and .6% African American.

Suit was brought by the NAACP on behalf of African American applicants claiming that the residency requirement created a disparate impact. The department’s defense was that opening the process up to non-residents would potentially disadvantage Hispanics and other minorities by allowing more white applicants from other towns to apply.

The court noted that some New Jersey fire departments use residency requirements to enhance minority employment opportunities. The court even referenced a 1977 race discrimination case brought by the Federal government against twelve NJ municipalities, where the jurisdictions entered into consent decrees that mandated the use of residency requirements to enhance minority recruitment. Those consent decrees remain in effect today, some 30+ years later.

But the 3rd Circuit rejected the use of a residency requirement by NHRFR in this case finding that it served to limit African Americans from applying to become firefighters, and thereby caused the disparate impact. The court further concluded that the use of the residency requirement could not be justified as a business necessity.

Ultimately, the court’s decision appears to have rested on the conclusions of two statisticians who served as expert witnesses in the case. The two determined through some convoluted sort of reasoning that the residency requirement was responsible for the small numbers of  African Americans working for NHRFR. [Please don’t take my word on the convoluted reasoning part – try to read it yourself and then you tell me… see the link to the decision below]

Following the ruling, the NAACP’s attorney, David Rose, was quoted as saying “Obviously, we’re pleased”. Hummmm…. I can’t help but wonder if he and the NAACP realize just what the long term result of their “victory” will be in terms of the applicant pool. It is quite likely NHRFR will now see a dramatic increase in applicants from primarily white suburban and rural areas who previously were prohibited from applying. Personally, I think the NAACP may have (which cliché should I use) won the battle but lost the war… shot themselves in the foot.

Attorney Tom Kobin who represents NHRFR, indicated he will be requesting a en banc hearing before the full 3rd Circuit. Barring that, the case may end up at the US Supreme Court.

Here is a copy of the ruling:   NAACP v No Hudson      (happy reading – it’s a tough one…)

More on the story.

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Posted in Civil Suit, Constitutional Rights, Discrimination, Politics

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1 comment Posted by on December 15, 2011

New Haven… Again… When Will It End

A group of seven black New Haven firefighters have filed suit against the city seeking to again litigate the validity of the 2003 promotional examinations that gave rise to the US Supreme Court decision in Ricci v. DeStefano.

Gary Tinney , Linda D. Cohens , Bernard McNeil , Anthony Reese , Curtis Tolson , Michael Neal  and Anthony Wells  sued the City of New Haven and IAFF Local 825 alleging  the 2003 promotion process  violated their due process, equal protection, and 14th Amendment rights by using a testing process that adversely impacted African-American promotion candidates.

The suit follows the plaintiffs’ previous efforts to intervene in the Ricci case, in order challenge the 2003 process as having a “disparate impact” – or discriminatory effect on blacks.  Those previous efforts were unsuccessful, but their point is well taken: the statistical data on the New Haven test showed that blacks did significantly worse in the selection process than whites, with pass rates that were 62.1% for lieutenants and 58.5% for captains of the white pass rate. Federal regulations established by the EEOC require that for a selection process to be presumptively valid the black pass rate must be 80% of the white pass rate.

The plaintiffs’ problem is that the US Supreme Court has already concluded that an employer who has gone through the great lengths that New Haven has gone through to eliminate racial bias, who has done everything short of playing with the numbers, cannot simply discard a promotional list based purely on the racial make-up of the list. Employers must have a strong basis in evidence to conclude that a selection process is racially flawed.  To throw a list out requires something beyond proof that the 80% rule was violated.

The Ricci court concluded that New Haven lacked such a strong basis in evidence. How Tinney, et al expect a court to rule otherwise is puzzling, but we will have to wait and see.

Incidentally, down Rt. 95 a few miles, FDNY is battling a case of disparate impact discrimination of truly historic proportions. A little known fact: blacks fared better on FDNY’s hiring test (which was struck down by Judge Nicholas Garaufis) than did blacks on New Haven’s promotional test (which was upheld). The black pass rate on FDNY’s test was 66.6% of the white pass rate, compared to New Haven’s 62.1 and 58.5%.

To see the complaint: Tinney Complaint

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Posted in Civil Suit, Constitutional Rights, Discrimination, Politics, You Can't Make This Stuff Up

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8 comments Posted by on November 1, 2011

Court Dismisses Suit by Black New Haven Firefighter Alleging Disparate Impact

Shortly after the historic US Supreme Court Decision in Ricci v. DeStefano, ruled that the City of New Haven had committed reverse discrimination by rejecting the results of the 2003 promotional examinations, Firefighter Michael Briscoe filed suit against New Haven alleging that the results of the 2003 promotional test had a discriminatory impact on him. Briscoe is African-American.

On Wednesday, April 21, 2010, a Senior U.S. District Judge Charles S. Haight Jr. dismissed Briscoe’s suit.

In a prepared statement New Haven Corporation Counsel Victor Bolden said "Today, the city … achieved another step towards concluding issues relating to the 2003 promotional examinations in the New Haven Department of Fire Service…. The decision confirms what should be a basic principle of law: a municipality should not be held liable for following a ruling of the United States Supreme Court."

Briscoe’s challenge is different from a post-Ricci challenge filed by seven other African American firefighters from New Haven in that Briscoe alleged the 60-40 ratio of written to oral scores was responsible for him finishing 24th on the list for lieutenant. He finished first on the oral portion of the examination. He alleged the 60-40 scoring resulted in a disparate impact on minorities.

While the court issued its ruling Wednesday, it has not released a written decision explaining Judge Haight’s reasoning. An appeal is expected to follow.

NY Times

Gothamist

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Posted in Civil Suit, Discrimination

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No comments Posted by on April 23, 2010