City of New Haven v. Briscoe

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In the 2009 case of Ricci v. DeStefano (also known as the “New Haven firefighters case,” in which Cato filed a brief), the Supreme Court declared that an employer that did not certify race‐​neutral promotion‐​exam results could be liable to the candidates who were not promoted as a result (because those candidates would have been discriminated against based on their race, or “disparate treatment” in violation of Title VII of the Civil Rights Act). A corollary to that holding is that an employer that did certify such results would be immune from liability for any resulting racial disparities in promotion (known as “disparate‐​impact” claims under Title VII). As Justice Anthony Kennedy wrote for the Court majority, “If, after it certifies the 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.” Despite this clear guidance from the Supreme Court, one of the black New Haven firefighters who did not gain promotion as a result of the test certification sued the City, alleging disparate‐​impact discrimination. The district court dismissed his claim but the Second Circuit inexplicably reversed that ruling and reinstated the lawsuit — considering Ricci’s corollary holding (quoted above) to be non‐​binding. Cato filed a brief supporting New Haven’s request that the Supreme Court review that decision — and perhaps even reverse it summarily — arguing that Title VII’s provisions are complex and onerous enough, such that employers should not be subject to liability for following court orders.