William Howe v. City of Akron, 723 F.3d 651

Forty 2004 Akron Fire Department promotional exams for Captain and Lieutenant were prepared, administered and scored by an outside consultant.
Promotions used a rank-order list based on exam scores plus seniority, with eligibility determined at a 70% passing threshold and additional seniority points.
Promotions followed a Rule of Three, selecting among the top three candidates for each vacancy; multiple vacancies intensified selection from the top of the list.
Plaintiffs alleged disparate-impact and disparate-treatment claims under Title VII, ADEA, and Ohio law challenging the promotion process.
After trial, the district court found adverse impact on twelve Caucasian Captain candidates (race), three African-American Lieutenants (race), and eleven Lieutenants (age); damages and front pay were awarded; a separate injunction ordered promotions.
The City appealed the district court’s preliminary injunction, arguing insufficient evidence of disparate impact and abuse of discretion; the appellate panel affirmed the injunction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs established a prima facie disparate-impact claim	Plaintiffs (Plaintiffs) showed a specific employment practice caused adverse effects.	City argues practice not separable; four-fifths rule not applicable to promotion rates.	Yes; plaintiffs identified a practice and demonstrated adverse effects.
Whether the 4/5s rule should compare promotion rates or pass rates	Promotion rates are proper for rank-order promotions.	Pass rates should be used for promotional testing.	Promotion rates are the correct metric for adverse impact in this case.
Whether the unusual-employer requirement applies to disparate-impact claims	Unusual-employer analysis applies to claims; statistics support disparity.	Unusual-employer concept not clearly applicable to disparate-impact.	Waived or not controlling; not applying the unusual-employer requirement here.
Whether irreparable harm supports injunctive relief	Delayed or denied promotions irreparably harm careers of firefighters.	Monetary remedies could compensate later.	Irreparable harm supported; promotions warranted.
Whether the public-interest factor weighs against the injunction	Ordered promotions serve public interest by remedying discrimination.	Promotions may waste public funds or disrupt operations.	Public interest not harmed; injunction appropriate.

Abbott v. Fed. Forge, Inc., 912 F.2d 867 (6th Cir. 1990) (applies framework for disparate-impact claims and business-necessity)
Grant v. Metro. Gov’t of Nashville and Davidson Cnty., 446 F. App’x 737 (6th Cir. 2011) (discusses identifying a separable employment practice)
Phillips v. Cohen, 400 F.3d 388 (6th Cir. 2005) (recognizes inseparable components in a process for impact analysis)
Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796 (6th Cir. 1994) (unusual-employer concept in disparate-treatment context)
Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603 (6th Cir. 2003) (usage of statistics in disparate-impact analysis)
United States v. City of Warren, 138 F.3d 1083 (6th Cir. 1998) (framework for shifting burdens in disparate-impact and ADEA claims)
N.A.A.C.P. v. City of Mansfield, 866 F.2d 162 (6th Cir. 1989) (precedent on irreparable harm and injunctive relief in civil rights cases)
Meacham v. Knolls Atomic Power Lab., 544 U.S. 84 (Supreme Court 2005) (disparate-impact considerations and employment practices)
Murray v. Thistledown Racing Club, 770 F.2d 63 (6th Cir. 1985) (disparate-impact framework in employment)
Black v. City of Akron, 831 F.2d 131 (6th Cir. 1987) (unpublished contexts distinguishing pass/fail testing vs rank-order)