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,, 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.

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7 Responses

  1. Rachel Godsil says:

    Thanks for a great post. The Ricci case did seem to leave questions unanswered — will be wildly curious how these questions are answered in Briscoe.

  2. I concur, Rachel. Superb post, thanks! Danielle

  3. That second-to-last paragraph in Ricci is more than inscrutable; it flat-out doesn’t make sense. It describes in conditional terms what had just happened (the city had refused to certify the test and was subjected to disparate impact liability) but suggests that there is merely a “strong basis in evidence” for the point on which it was in the act of granting summary judgment–which obviously requires quite a bit more. If taken literally, it means that the “strong basis in evidence” standard also applies in a completely different context that was not before the Court, as a defense to a disparate impact claim. It looks to me like a very clumsy and poorly thought-through attempt to foreclose a case like Briscoe.

  4. Michael Zimmer says:

    Jennifer, It is my hunch that Justice Kennedy is trying to foreclose cases such as Briscoe. And, my hunch is that it is because, as the majority appeared to think in Bush v. Gore, the lower courts cannot be trusted to get it right.

  5. AF says:

    I agree with Jennifer Hendricks. Kennedy’s invocation of the “strong basis in evidence” standard with respect to future disparate impacts claims is quite awkward and convoluted. However, I think it’s possible to discern the underlying logic.

    On its face the sentence seems to create a novel and upside-down defense to a disparate impact suit: that there is a strong basis in evidence that the defendants would be subject to a disparate treatment claim if they refused to take the employment action alleged to cause disparate impact. But such a disparate treatment claim is none other than the novel one created by Ricci, which arises precisely when there is no strong basis in evidence to support a disparate *impact* claim. Thus, Kennedy’s sentence boils down to saying there is “clearly” not strong evidence to support a disparate impact claim — from which it follows that such a disparate impact claim would fail.

    I think that in addition to trying to discourage Briscoe-like claims, Justice Kennedy was also trying to address a basic flaw in the Ricci decision — namely, that it created a situation in which employers could (almost) literally be damned if they do and damned if they didn’t, ie subject to meritorious disparate treatment and disparate impact claims for taking or not taking the same employment action. That is an obviously untenable outcome, and I think Kennedy was trying to avoid it.

    If that is true, it suggests that a great deal of existing disparate impact doctrine is open to question — for under current doctrine, the Briscoe plaintiffs’ claims are clearly colorable. Incidentally, that to me is one the most glaring flaws in the Ricci opinion — it seriously underestimates the strength of the minority firefighters’ potential disparate treatment claims under current doctrine. It is a flaw, however, that can be “solved” by weakening current doctrine. That strikes me as Kennedy’s intent.

    While it is certainly relevant, I’m not sure that the applicability of 42 U.S.C. §2000-e(n) is the key question in Briscoe. Assume that the statute does not apply and the plaintiffs are not statutorily barred from bringing their claims. That doesn’t change the fact that the Supreme Court has expressly stated that their claim is without merit as a matter of law. Most judges would consider that binding and would not feel free to entertain the claim.

    However, it is arguable that a lower court judge is not *obligated* to reach that conclusion — Justice Kennedy’s statement is plainly dicta (though perhaps binding dicta, which is not necessarily a contradiction in terms coming from the Supreme Court). If a judge chooses to send the plaintiffs’ disparate impact claims to a jury, I could imagine the Supreme Court coming up with novel ground for entertaining an interlocutory appeal, and granting judgment to the defendants as a matter of law.

  6. cybilG says:

    More than a few observers have surmised that the majority adjudicated the case (much to Ginsburg’s upset)because the district court could not be trusted on remand, which is, to say the least, an unflattering assessment of the trial judge.

  7. RJ says:

    Well, with a district court that disposed of such a significant set of issues by an unpublished ruling, and a circuit panel that threw the case out with the trash in a three-sentence unpublished order (all acts by liberal Clinton appointees), I’d say that confidence in their ability to do justice on remand was trashed as well.