*1 Brеnnan, Ahearn, James Scott Clause, I John Speech Free violates the vices Mortensen, Spring, John Dennis dissent. respectfully Mitchell, Schauer, Eric Plain- tiffs-Appellants, v. States;
Attorney General of the United Attorney General of Assistant Rights; U.S. States for Civil United Justice; Department New York of America, of STATES UNITED Education; City City Department of Plaintiff-Appellee-Cross- City York; Depart- New New York Appellant, Citywide Administrative ment of Ser- Hirst, vices; Martha K. Commission- Calderon, Caldero, I. Martha Celia Janet City er, City Department New York Chellemi, Chioke, Clem- Salih Andrew Services, Defendants- Administrative D’Alessio, Daniele, ent, Laura Kristen Appellees, Ellis, Didonato, L. Dawn Charmaine Mary Jarrett, P. Kachadouri- Marcia Caldero, Calderon, I. Martha Janet Celia Luebkert, A. an, Adele Kathleen Chellemi, Chioke, Salih Andrew Clem- McMahon, McGreal, Mar- Margaret D’Alessio, Daniele, ent, Kristen Laura Morton, Manousakis, D. ianne Sandra Didonato, Ellis, Dawn L. Charmaine Harry Santana, Quinn, Carl Maureen Mary Jarrett, P. Marcia Kachadouri- Tatum, Valdez, Smith, Frank D. Kim Luebkert, an, Adele A. Kathleen Wolkiewicz, Intervenors- and Irene McGreal, McMahon, Margaret Mar- Appellees-Cross-Appellants, Manousakis, Morton, D. ianne Sandra Harry Santana, Quinn, Carl Maureen Casado, Arroyo, Celestino Pedro Jose Valdez, Smith, Tatum, Frank D. Kim Fernandez, LaFaye, Lo- Kevin Steven Wolkiewicz, Irene Intervenors- Maldonado, Mar- pez, Aníbal James Appellees, McGraw, Ortega tinez, Wilbert Silvia Pantelides, Green, and Nicholas De Casado, Arroyo, Pedro Jose Celestino Intervenors-Appellees, Fernandez, LaFaye, Lo- Kevin Steven v. Maldonado, Mar- pez, Aníbal James Ahearn, BRENNAN, James G. John McGraw, Ortega tinez, Silvia Wilbert Mortensen, Spring, Dennis Scott Green, Pantelides, and Nicholas De Intervenors-Appellants-Cross-Appel- Intervenors-Appellees.
lees, Miranda, Plaintiff-Appellant, Ruben City Department Edu- York New v. cation; City York; K. New Martha Hirst, Commissioner, York New City Department York New Department Administrative Education, Defendant- Services; City Department New York Appellee. Services, Citywide Administrative (L), Nos. 08-5172-cv Defendants-Appellees. Docket 08-5171-cv *2 (XAP) *, (XAP), 08-5375-cv 08-5173-cv (CON),
(XAP), 08-5149-cv 08-4639-cv (CON). Appeals,
United States Court of Second Circuit. Argued: Feb. 2010. 5,May Decided: 2011. * (XAP) May 08-5173-cv been has withdrawn order filed
Michael E. Rosman (Christopher J. Ha- brief), jec, on the Center for Individual DC, Rights, Washington, for John Bren- nan, Ahearn, Spring, James Scott Dennis Mortensen, Mitchell, Schauer, John Eric and Ruben Miranda. (Dennis Friel,
Gregory Dimsey B. J. brief) Anderson, April J. on the for Loret- King, Acting ta Attorney Assistant Gener- al, Rights Division, Civil U.S. Department Justice, D.C., Washington, for the Unit- States, General, Attorney ed the Assis- General, Attorney tant Depart- and the ment of Justice.
Alíela Migdal, (Emily Martin, M. J. Araceli Martinez-Olguin, and Lenora M. brief), Lapidus, on the American Lib- Civil erties Union Right’s Foundation Women’s Project, York, NY; New Melissa R. Cher- nofsky, Attorney-at-Law, NY, Brooklyn, brief, on the for Janet Caldero et al. (John Colangelo, Matthew Payton, Debo Adegbile, P. Joy Milligan, brief), Legal NAACP Defense & Edu- Fund, Inc., York, NY; cation New Joshua Civin, Legal NAACP Defense & Education Fund, Washington, DC, for Arroyo Pedro et al. Pine, Thomas,
Rachael N. L. Gillian Le- Momentum, gal York, NY, New for Ami- Legal cus Curiae Momentum. CALABRESI, RAGGI, and Before: CUDAHY,1 Judges. Circuit RAGGI, judgment in the Judge concurs separate opinion. files a of the Court and CALABRESI, Judge: Circuit Table Contents
Introduction.....................................................................70 Background................................................72 and Procedural
Factual I. The Parties...........................................................72 Background............................................73 Factual II. General Engineers ................................73 and Custodian A. Custodians Seniority........................................73 Importance of B. The *5 1. Transfers.....................................................74 Assignments...................................75 Temporary 2. Care Layoffs.......................................................76 3. Hiring C. The Process................................................76 Employees.............................................77 D. Provisional Investigation and Lawsuit..............................77 III. The Government’s The Settlement........................................................78 IV. Terms.................................................78 A. Settlement Approval...................................................79 B. Court Implemented................. Is The Settlement V. Vacates and Remands................................80 The Second Circuit
VI. Proceedings on Remand................................................81 VII. Complaint.........81 File a Related Plaintiffs Intervene and A. Brennan Position; Changes Interventions Its Offeree B. The Government Result.........................................................82 Opinions...........................................83 The District Court’s VIII. Opinion ....................................83 September A. Opinion .........................................86 April B. The The Opinion..........................................87 May C. Lawsuit..................................................89 IX. The Miranda Stay Applications..................................................89 X. The Discussion.......................................................................89 Background..................................................89
I. VII Title Posture and Standard Review..............................91 II. Procedural and Defenses.........................................92 III. Prima Facie Case Circuit, sitting by Appeals for Seventh Cudahy, Richard D. Senior 1. The Honorable designation. Judge Court of United States Circuit Affirmative IV. Action.....................................................96 Legal Background.................................................96 A. Application Agreement......97 B. of Johnson Weber to the Settlement 1.Ricci.........................................................97
' Implementation Agreement 2. Is the of the Settlement Affirmative Action Plan?......................................99 Is an a. What Affirmative Action Plan?..........................99 Employer b. The Action in This Case..........................104 Strong V. Basis Evidence..............................................109 Strong Is a A. What Basis Evidence?................................110 Strong Liability............................110 1. Basis Evidence of Strong Necessity...........................113 2. Basis Evidence of B. The Government’s “Actual Violation” Standard.......................114 Require Showing Liability 1. Ricci Not Actual Does or Actual Victims....................................................115 Consent-Decree, 2. The Settlement-Approval, 706(g) Apply Cases Do Not in the Context...................116 3. The Remedy Any Brennan Plaintiffs Have Another Breach of Contract Defendants...........................120 Application Strong-Basis-in-Evidenee VI. Standard....................124 A. Prima Facie Case................................................125 Testing 1. Discrimination........................................125 Recruiting Discrimination......................................125 Discriminatory B. Job-Related and Less Alternative....................127 *6 Necessity C. and Make-Whole Relief..................................128 Equal VII. Protection.....................................................134 VIII. Class Certification....................................................136
IX. Remedies ...........................................................137 X. Conclusion...........................................................140
Introduction ment agreement in 1999 and asked the district court to it enter de- consent (the In the United States “Govern- cree. The magistrate judge (Levy, ment”) City sued the York New Board of M.J.) jurisdiction by had consent— (the —who parties “City Education and related approved agreement, the despite entire ob- Defendants”) claiming a violation of Title jections primarily that came from incum- prohibition disparate impact VII’s selec- employees bent who were denied leave to alleged tion measures. suit that the intervene in the suit. The em- had, incumbent City in hiring Custodians and Custo- (“CEs”) ployees unaffected (1) by many the schools, dian Engineers for its used, agreement’s provisions, they objected occasions, separate three civil ser- to four paragraphs provided perma- vice which examinations discriminated (2) appointments nent against Hispanics, blacks and compet- used retroactive recruiting practices seniority black, Asian, itive Hispanic, which discriminated to 63 blacks, against Asians, individuals, Hispanics, female the “Offerees.”2 parties women. The entered into a settle- The implemented Defendants the dis- below, 2. As slightly. discussed number Offerees later decreased significant remainder of the while the ed that a ret- settlement puted parts seniority was In particu- roactive lawful. appeal from their employees’ incumbent (1) lar, the court held retroactive this pending. exclusion was seniority of the test-failer Offerees3 did remanded, holding that vacated Court Equal violate Title or the Protec- VII permitted should have the district court Clause, layoff insofar as senior- except tion employees intervene. the incumbent was ity4 granted individuals who were remand, the incumbent em- After (2) discrimination; not actual victims court to the district ployees asked some of test-failers were actual judge rather than to a district case sent (3) not; victims and others were request magistrate judge; female non-test-failer Offerees’ retroactive brought They then two reverse- granted. seniority not violate Title VII or did against lawsuits discrimination Clause, except Equal Protection that their the Equal of Title VII and under seniority layoff violated both Title VII and (via 1983); Clause U.S.C. Protection Equal Protection Clause since—be- cases were consolidated with these prima no cause there was case of facie original lawsuit. 1996 Government recruiting respect discrimination with relief and sought equitable new lawsuits them —none of them were actual victims of employees also The incumbent damages. (4) discrimination; and that the mi- such Meanwhile, requested class certification. nority male non-test-failers’ retroactive se- de- decided that would the Government VII, niority did violate Title but did agreement only the settlement fend Equal As violate the Protection Clause. prompted groups two of benefi- part. This remedy a declaratory entered of the settlement intervene ciaries judgment, accompanied by spec- schedules the retroactive defend ifying to which each the extent individual’s group, granted them. One settlement seniority was lawful. The retroactive class Intervenors, Arroyo consisted ten certified, employees of incumbent was also and failed a chal- *7 who had taken Offerees rejected. damage their claims exam; lenged group, the other the Caldero Finally, the district court declined to enter Intervenors, twenty-two consisted of Of- any part disputed paragraphs of the any challenged who had not taken ferees agreement into a consent de- settlement exam. cree. years litigation, ex-
After of contentious district court’s refusal to appeal, On three discovery, opin- tensive and a set of challenged. not enter consent decree is approximately total 150 spanning ions only disputes us are the incum- before J.) (Block, court entered pages, district lawsuits, employees’ which claim that bent judgment. It held that some of the a final (voluntary) imple- Defendants’ seniority set- provided retroactive agreement settlement vi- mentation VII, agreement Title and tlement violated of Title and 42 olated VII U.S.C. seniority of the retroactive us requires some 1983. The Title VII claim Equal applicability Title violated the of Ricci v. did not violate VII decide the DeStefa- — 2658, no, -, But, 174 conclud- U.S. Clause. court Protection Although who 4. The Defendants use a traditional “last only some of the Offerees (the hired, Arroyo seniority system layoff a test intervened in the case failed first fired” Intervenors), holding ap- the district court's Custodians CEs. test, plies to all Offerees who took without regard to whether intervened. 72 (2009), and, therefore, which was
L.Ed.2d 490 decided af- as to whom the retroactive- seniority provided agree- court issued its decision in settlement ter district proper remedy. ment was a We this case. also dis- cuss what remedies the district court analysis court’s Title VII district consider, might properly and we advise the on the was based “affirmative action” appro- while it Transp. Agency, framework of Johnson v. priate to strip certain settlement beneficia- County, Santa Clara 480 U.S. seniority they ries the retroactive re- (1987), 94 L.Ed.2d S.Ct. ceived from the it agreement, settlement Weber, Am. v. United Steelworkers not strip correct to them of stem- L.Ed.2d U.S. ming permanent appointments. from their (1979). that, contrary pre- hold We possible Because it the case can be Circuit, Ricci in this law Johnson and grounds, resolved on Title VII we decline gender- to all race- apply Weber do or at this important time address the employer light conscious actions. Equal difficult questions Protection Clause Ricci, the “manifest imbalance” and “no that attach Finally, to the case. we affirm unnecessary analysis of trammeling” those the district grant court’s of class certifica- extends, most, cases to circumstances in because, in tion so certifying, the district an employer which has undertaken a race- court did not abuse its discretion. gender-conscious affirmative plan action Accordingly, we AFFIRM the district designed to all benefit members of racial part, court’s judgment VACATE gender in a forward-looking class man- pаrt, and REMAND the case for further here, only. Where, employer ner proceedings consistent with this opinion. provides instead individualized race- or gender-conscious remedy benefits as a Background Factual and Procedural previous disparate impact, satisfy Ricci, requirements must I. The Parties Weber, Johnson and in order to avoid dis- appeal This stems from three lawsuits parate-treatment liability. Ricci, Under involving parties five or groups parties, the employer must show a strong basis in who, directions, from different just attack that, evidence at the time the race- or every aspect about of the district court’s gender-conscious taken, action was the em- (the judgment. The employees incumbent ployer was faced with disparate-impact lia- Plaintiffs”)5 “Brennan appealed, bility and that or gender-con- race- *8 the Caldero Intervenors and the Govern- necessary scious action was to avoid or ment have cross-appealed. City Since the remedy liability. Defendants have withdrawn their cross- appeal briefs, and have not submitted addition to our holding, central we four parties before are: address us several other issues. We discuss (cid:127) a few matters related to the Plaintiffs, identification The Brennan who seek to who, of those City individuals Defen- invalidate as much of the four chal- strong dants a lenged evidence to paragraphs the settlement as believe, were disparate impact victims of possible. Plaintiffs,
5. The case, district court referred to the incumbent Brennan and not the 1996 employees as the "Brennan Intervenors” be- that are appeal, the focus of this we refer to they cause original intervened in the group by play this individuals the role brought by case the United States. Because it in those cases. subsequent by is the two brought cases case, (cid:127) in this Intervenors, employed at issue Board who seek Arroyo The over Custodians and CEs. for settlement Offerees defend challenged exam. who failed through and are paid Custodians CEs (cid:127) Intervenors, who seek Caldero The arcane, century-old, idiosyncratic sys- and for Offerees the settlement
defend system.” the “indirect See tem known as challenged exam. did not take who v. generally Beck Bd. Educ. (cid:127) York, de- Government, 644, 646-47, which wishes to The New 268 A.D. settlement, 1945). (N.Y.A.D.2d of the portions Dep’t some fend N.Y.S.2d not others. or is system, but Under the Custodian CE civil and independent both a servant Background II. Factual General contractor. The Board allots each Custo- lump money dian a sum of based on the 1996 law- focus of Government’s The and other of the as- hir- size characteristics allegedly discriminatory suit was the signed school. The Custodian uses some Engi- ing and Custodian of Custodians money to and helpers of this hire cleaners City Defendants. neers supplies, and, pay up speci- and to for Engi- and Custodian A. Custodians limit, himself. fied he retains rest neers The Board not tell how to does Custodians hire; things or clean and maintain whom to “Board”) (the Education6 The Board of it them is only tells whether the school Engi- and employs Custodians Custodian being cleaned and maintained satisfactori- approximately to take care of the neers7 thus, ly. purported- Custodians CEs City’s system. in the school buildings ly, have an to maintain their incentive are desirable positions Custodian and CE adequately schools a cost-effective supervisory jobs good pay8 and civil- manner. Id. protections. Each or service Custodian school, assigned to or CE is he she Importance Seniority B. The supervises handymen and cleaners all seniority of a Custodian or CE is at that The Custodian CE also school. ways, only important in several three responsibility upkeep, has the cleanliness, safety assigned appeal which are relevant to the before us: difference improves main between Cus- a Custodian or CE’s school. The (1) ability get transfers to desir- that CEs have more more todians CEs is (2) schools; Temporary Care get able experience and difficult-to-obtain station- (3) (“TCAs”)9; and to avoid During Assignments the times ary engineer’s license. pay years lower for the first five of a New York Board of Education has 6. The replaced by Department of Edu- employment. been When a Custodian’s or CE’s cation, origi- hired, will to use but we continue pay Custodian or CE first is 70% name, parties party's do the nal to this five of what would be for someone with *9 litigation. years phased up job. It more is to Thus, period. newly over that hired 100% job changed 7. In these two titles or CEs sometimes earn less mon- Custodians Engineer Level I and Custodian to Custodian ey longer-serving than their subordinates. II, Engineer respectively. At the same Level occurred, time, "broadbanding” which meant significance discussed in 9. The of TCAs is possible promoted that it became from section taking position a new infra. one other without parties exam. The use the old civil service titles, job we. and so will CEs, At for transfers and while some are laid off. least other schools avail- being seniority is able to specified only Custodians the Custodians layoffs, the effect refrigeration a be- have license.12 bargaining agreement in a collective represent- and union tween the Board so, needed, Every few months or as CEs, and Local ing Custodians Board a Vacancy issues List to Custodians Engi- of Operating Union International Vacancy and CEs. The List out sets (“Local 891”). discussing Before neers vacancy, with a schools Custodian or CE matters, noting way one those it is worth any eligible and Custodian or who is CE seniority is not at issue in this which may open transfer bid for schools and (which seniority is termed appeal: some specify his preference.13 or her order of seniority) concerns a “non-competitive” Custodians and CEs bid for a school relationship Custodian or CE’s with the bracket, seniority long above their so as ways that do affect the holder Board is a a bidding the bidder not Custodian for relationship seniority’s to other school, CE-only or a a Custodian without example, or CEs. For the se- Custodians refrigeration bidding license for a school niority pay that affects the amount of a a requires such license. Then is, sense, CE receives in this Custodian or Board at who for applied looks has each “non-competitive.” supra See note 8. only eligible person vacant school. If one school, for a person gets bids then that
1. Transfers majority school. vast vacant high- earn Because Custodians CEs competition; schools do not result either larger er salaries when work in nobody only or one person bids for them. schools, desirable, opportu- vacancies, is when the however, The most desirable re- arises, nity larger them to cases, for transfer to multiple ceive bids. In such if at is vacancy schools. When there a a least one bidder is or above the school’s school, bracket, seniority plays seniority crucial role in then Custodian or gets determining seniority who the transfer.10 Pur- is CE who below that bracket “rating suant to plan” get words, and transfer In will the school. other bargaining agreement collective for can never get Custodian CE school CEs, seniority Custodians and each school in the his or above her bracket unless system assigned particular nobody required seniority “seniori- in or above the ty bracket” square footage.11 applies based on its If vacancy. bracket for the two or are larger CE brackets with associated more candidates are in or above the re- bracket, schools than the brackets for quired seniority Custodians then the transfer who have experience. goes the same level of generally applicant with the addition, highest some schools are available performance rating from his or her purposes, seniority Engineers years, For transfer years, based dian are 1-5 5-10 10- 10. years employee on the number of in which an years, years. or15 more satisfactory rating has received a in his or her job Engineer current title. A Custodian who refrigeration 12. A license is certificate previously satisfactory ratings earned as a qualification refrigerating opera- machine Custodian is not allowed to count his her tor. years experience of Custodian se- transfer niority. CEs, 13. Certain Custodians such those pending disciplinary matters those The three brackets for Custodians *10 who have transferred within the last two years, years, are 1-5 5-10 and 10 or more years, eligible are not years. to transfer. seniority The four brackets for Custo- in However, though required put or she not to he is principal. school’s current A job. any additional time on Custodi- rating performance any candidate’s other reasonably expect get a an or CE can to top candidate’s points of is within .25 every years. once TCA two seniority is used rating, then performance The va- between them. as tie-breaker a process for some- assigning TCAs is a can veto Custodi- principal school’s cant process, the transfer what different from CE, a appear not but this does an or a seniority still role. The record plays but Indeed, in nothing occurrence. frequent however, is, significant as how unclear hap- it has ever indicates that the record a or has that role is. Once Custodian CE applicant Once an is determined pened. year experience, or she at least one he top for a by applicant to be the the Board to the waitlist for the dis- is added TCA school, applicant cannot with- vacant regularly assigned in which his her trict or bid; to that his her transfer draw or located, adjacent is school or for districts.15 1% of the mandatory. is About school arise, they assigned TCAs are As system get a new the entire list, schools top CE at the so Custodian or the transfer or CE each time Custodian not long require the TCA school does process occurs. special top or person license skill TCA, Upon finishing not have. does Assignments Temporary Care
2. is or returned to the the Custodian CE of the list. bottom Seniority Temporary also affects Care only slightly. When Assignments though system, of the rotation Because — vacancy results from temporary school relatively role play only seems minor leave, vacation, fills illness, or the Board awarding in the of TCAs. The district process. vacancy through TCA does, however, way suggest pro- the TCA process, the transfer Unlike seniority might make a difference. which bargain- the collective court, found cess there are three According record conflicts as to agreement. The ing in each district: one for separate TCA lists by process governed CEs, whether the TCA one for Custodians with least negotiated with Local any contract 891.14 seniority, other years’ and one for Custodi- a TCA A or CE who receives Custodian v. N.Y. Bd. ans. United States will, usually Educ., for the duration of 411-12 F.Supp.2d TCA— (E.D.N.Y.2006) school NYC Board months—look after TCA two [hereinafter regularly assigned mentions parties’ his or her None of the briefs III]. addition time, salary lists, During that nor do these briefs cite school. three proposi- part supporting will be increased of the record Custodian or CE But, if the court’s statement unlikely in the event tion. 75%—or 100% corrеct, increasing then Custodian’s six months —even is lasts more than the TCA ment, a side Opera- ”[l]ike are contained in Lonergan, Plant James Director of 14. Board, thing.” "[t]he for the declared tions letter kind of assignments temporary guidelines for care negotiated are 891] Local [with are not indicate whether record does the need the Board of modified in terms of separate CE be added to Custodian or Calderone, also of But Salvatore Education.” adja- for his or her district and each lists "[tjhere Board, deposition that testified at district, added to his cent instead nego- temporary guidelines care are list, would somehow become her district’s Department of Education tiated between adjacent too. eligible districts for TCAs that, 891,” although they are Local bargaining agree- not found in the collective *11 might increase the size of the 15- seniority civil service examination.16 The De- City work year thereby disputed list and fendants administered three ex- TCA (1) 5040, ams: Exam which given of on list. was detriment other Custodians (2) position; 1985 for the Custodian benefit other Exam correspondingly This would 8206, given which was in 1989 for the CE who are the fewer-than-15- Custodians (3) 1074, position;17 and Exam which was decreasing years by list list’s TCA given 1993 for the position. Custodian Similarly, advantage length. it is to the of any particular Custodian or CE for there Second, an applicant had to submit “ex- possible to be as few as other Custodians perience papers” how explaining the appli- year or CEs with at least one of cant qualifications satisfied the minimum adjacent or For the same districts. the position. qualifica- for The minimum long get then it would not take as back years tions—a experience few relevant assign- the of the list after a top TCA Custodian, years for and a few more ment. plus high-pressure the coveted li- boiler (also “stationary engi- cense known as a Layoffs
3. license”) neer for a CE—were stated aforementioned, for notice each Seniority directly determines the order disputed, in which will exams. Once the exam ad- Custodians CEs be laid off was 80(1). ministered, City § under N.Y. Civ. Law Defendants reviewed Serv. experience provide papers passing and the typical appli- statute CBA for a hired, finding “last cants. A system. experience first fired” insufficient
could be administratively appealed. The Hiring C. The Process proportion exact appeals that over- turned original Defendants’ find- During disputed period, hiring ings is disputed, unclear and pro- process included four steps for Custodians portion of appeals clearly successful was steps First, and three for CEs. because a insignificant.18 or CE Custodian civil servant within “competitive (the Third, class” as under defined for Exams 5040 and 1074 law, New York an applicant wishing exams), to Custodian but not for Exam 8206 (the become a Custodian or pass exam), CE had to practical CE test was re- Const, V, 16. See ("Appointments general N.Y. art. public, while Exam 8609 was taken promotions civil service of the state by Custodians who wished to become CEs. thereof, including all of civil divisions III, F.Supp.2d NYC Board at 406 12. n. villages, according cities and shall be made ascertained, merit and fitness as far as 8206, example, 18.For on Exam the Govern- which, practicable, by examination as far as 56, 41%, ment out asserts or about practicable, competitive____”); shall be N.Y. passed of the individuals who the exam but Civ. "competi- Serv. Law 44 (defining the initially experience papers rejected had their tive class” which examinations are re- prevailed appeal. on administrative And Aiello, quired); 921, 921, Conlin v. 64 A.D.2d III, District Court so found. NYC Board (N.Y.A.D.2d 1978) Dep’t N.Y.S.2d 125 F.Supp.2d at 418 n. 29. The Brennan Plain- ("[T]he position[s] of school custodian and/or tiffs, however, suggest that the Government’s school custodian-engineer are ... in the com- numbers for that exam also include indi- petitive service.”). class of the classified civil challenged viduals who their test scores rath- experience er than their Simultaneously status. For Exam with Exam Defendants the record indicates that 28 administered Exam which out of 21%, was identical. initially difference about individuals deemed Exam 8206 was taken unqualified members appeal. won on administrative *12 early through early from practical oral Exam 5040 was Custodians The quired. applicants to those given and was passed the civil service exam had both
who Employees D. Provisional experience papers ac- had their and had to were taken the boil- Applicants cepted. the permanent In addition to Custodians Brooklyn and asked in a school in er room CEs, the go through and who above they do under about would questions what competitive and who had process described Exam For circumstances. various protections, civil-service the to a changed test written practical this was “provisional” hired Custo- Defendants format, Defendants could so the Provisional Custodians dians CEs. applicant was asked make sure each time, be do not and CEs can fired Also, unlike the questions. the same se- competitive non-competitive accrue or practical, practical the Exam 5040 niority, cannot bid for transfers other individ- Exam 1074 administered —and TCAs, schools, obtain and have to cannot failed it were uals who puts wherever the Board them. It is eliminated—before work A were reviewed. experience papers the permanent much better to be a therefore appli- percentage small but non-trivial provisional or CE than to be a Custodian practical test.19 cants failed But Custodians provisional one. CEs responsibilities sаme completed, appli- After were steps these are they assigned schools which then- exam, passed who had the written cants permanent counterparts. And are papers” stage, and “experience and, supposed experience to have the same (if were applicable), placed practical exam CEs, provisional in the the boiler case list,” starting high- “eligible Custodians license as well. Provisional end- on the written exam and est scorers hired when the Board needs and CEs are passing scorers. When ing with the lowest appro- no and CEs but there is Custodians CE, it the Board needed a Custodian from which hire priate eligibility list of Three.” follow “Rule Under employees. See N.Y. Civ. permanent rule, top few people it would call §Law 65. Serv. three, (usually sometimes more but vacancy) more than one on the there were Investigation The III. Government’s list for See N.Y. Civ. eligibility interviews. and Lawsuit 61(1). vacancy The vacan- Serv. Law by Department began ones Justice then filled whichever U.S. cies would possible discrimination in investigate of the interviewees selected hiring permanent Custodians and Applicants who were inter- interviewers. early demo- in the 1990s. A 1993 being without hired CEs viewed three times survey more than list. revealed that eligibility graphic from the would be removed and CE permanent from the 99% of the Custodian hired Custodians Board male, and was white. 1987 workforce was 92% eligibility Spring Exam 5040 list from contrast, blacks constituted about 20% eligi- The Exam 8206 through Fall 1990. pool posi- these qualified from labor bility was used to hire CEs list tions, up 19% and early Hispanics made about through Spring 1991 pool. A 8% of the eligibility for women about Exam 1074 list was used rate, applicants passed passing a data sheet indicates exact Exam 19. For applicants large majority who took that a practical of 754 who took it. oral exam out practical passed it. exam not state the For Exam the record does *13 demographic survey produced report by Orley similar re- showed ment Dr. Ash- (as enfelter, was later con- appeared sults. It also report a labor economist. The investigation) that racial mi- blacks, firmed Hispanics, that the of said number much likely norities and women were more Asians, and women who took each of the provisional as Custodians to be hired disputed three exams was than lower permanent than as CEs Custodians expected number that would be based on CEs, though qualifications even for representation qualified of individuals both were the same.20 These data aroused pool. the overall labor Dr. Ashenfelter suspicion that something the Government’s found that the differences were statistical- permanent hiring process in the was dis- level, ly significant at the 5% some criminatory. groups probability that the differences were the result of chance was much lower. analysis of Based on statistical Although Dr. any Ashenfelter did not offer investigation, results of the the Govern- opinion ment sued the as the cause for City January dispari- Defendants on these 30, ties, 1996. The originally Government Government asserted that both pattern-and-practice advertising made claims resulted from limited (which require proof of intentional discrim- a dispa- word-of-mouth referrals that had ination) disparate-impact claims. But impact rate on women and minorities. pursued it ultimately disparate- IV. Settlement
impact claims. Two sets of these were asserted. 1999, By discovery extensive had been conducted, but the first, Government had not
In the alleged Government summary judgment moved for and the employed some the tests brought about gone had not discriminatory case to trial. results. Before the Specifically, the Government attempted prove claim was that Exams its 8206 and 1074 court, disparate had a impact on blacks and case His- Government and the panics. This allegation was on based a Defendants entered into negoti- settlement statisticians, report ations, from two who conclud- which concluded with the signing ed that the statistical significance agreement. Although settlement much disparities passage white, rates between agreement give did not rise black, Hispanic takers those three objections from parties, para- third four overwhelming exams21 was ranged 13-16, graphs, numbered came under at- —it nearly from to 14 standard deviations. Only tack. paragraphs, those four and the III, See NYC F.Supp.2d Board at 407. consequences of implementation, their are appeal. at issue on this claims, The second set of the recruiting claims, alleged Defendants’ A. Settlement Terms recruiting practices disparate had a impact blacks, Hispanics, Asians, Paragraph provided and women. that all “Offer- claims, support of these the Govern- ees” who serving were as provisional Cus- permanent 20. As of 91% custodians 21. No conclusion about Exam the exam males, permanent and CEs were applying white about Custodians who were 8% were drawn, males, Engineers, to become Custodian minority was and less than 1% wom- sample because contrast, sizes were too small. By provisional en. custodi- 72% Only Hispanics 6 blacks and 3 took that males, ans and CEs were white 16% were was, however, exam. Exam 8609 considered males, minority and more than 12% were agreement in the settlement that is discussed women. below, presumably because it was identical to
supra See
Exam 8206. note 17. provisional regarding hires. stipulation the date the court or CEs
todians Thus, provisional if the was a agreement would Offeree the settlement approved Custodian, permanent posi- get or she would equivalent he granted in the hire date for provisional was defined earlier earliest Cus- tions. “Offeree” (a) todians, all groups: February two which to include agreement Asian, black, CE, or female individu- provisional If Hispanic, the Offeree was *14 permanent employed as or get provi- who he the earliest als were or she would of the CEs, or CEs as Custodians hire for which provisional sional date was (b) agreement; of and 13,1990. the approval date of April Asian, black, or female indi- Hispanic, all the agreement provided The retro- one chal- had taken of the viduals who seniority “apply active dates would for all provi- hired as exams had been lenged seniority purposes applied for which ex- after the date of Custodians CEs sional cept any applicable probation require- of approval but before court agreement the Accordingly, ment.” addition to the people list of the 54 agreement. the The TCA, transfer, layoff benefits that are (a) Ap- as group was attached falling into seniority provided the dispute, dates agreement. A to the pendix benefits, non-competitive which are various the ret- gave 14-16 Offerees Paragraphs issue here. seniority accordance with the roactive terms: following Approval B. Court (cid:127) A any Appendix For Offeree listed who taken a agreement City had not the the and the De- After Government exam, the retroactive se- challenged settlement, agreed the fendants to went the date his or her niority date was Levy juris- Magistrate Judge to whose —to hiring. provisional diction, earlier, parties mentioned as (cid:127) had to 28 Appendix pursuant listed in A consented U.S.C. For Offeree 636(c) hearing, who taken a a fairness because agreement
of the —for exam, parties sought agreement challenged Custodian the retro- was earlier of date as a consent decree. See United active entered (i) date, Educ., provisional hiring City her N.Y. Bd. his or v. 85 States (ii) (E.D.N.Y.2000) 130, the chal- “Median Date”22 for F.Supp.2d [here- 135 took, pro- ], that he or she lenged exam I re- inafter NYC Board vacated and Educ., if taken more manded, he or she had vided v. N.Y.C. Bd. Brennan (2d Cir.2001) exam then the earlier median than one [hereinafter 260 F.3d applied. date gave district court NYC Board II]. (cid:127) opportunity object. A notice and Appendix For not listed in Offerees Cf. 2000e-2(n) (preventing subse- agreement Custodian U.S.C. of the —those (b), ie., challenges employment practices quent group those hired
Offerees if judgment notice agreement implementing consent after provisionals object giv- have been opportunity it—the approval before en). objections, There were over 300 seniority date was ear- retroactive half of which were form letters. hire for that Of- about provisional liest date I, F.Supp.2d at 134 & n. 3. title, an earlier NYC Board job as listed in feree’s 8206; 5040; Exam October for exam Exam 22. The "Median Date” each 8609; February Exam Octo- period 1992 for midpoint hiring for that exam. ber Exam 1074. January 1989 for The median dates were: male in- objectors, who were white Implemented Three V. The Is Settlement CEs, Custodians or permanent cumbent Shortly Magistrate after Judge’s ap- Brennan, John James moved to intervene: settlement, proval Defen- Ahearn, Brunkhorst. and Kurt Id. G. began implementing agreement. dants 134-35. They notified 63 Offerees—the 54 individu- als A Appendix agreement, listed in Judge determined that Magistrate plus nine other individuals—that out prima had made the Government agreement, entitled relief under the disparate impact for both the case of facie they agreed to release all discrimination recruiting 141- testing and claims. Id. at claims against Defendants. 59 Next, he determined settle- settlement, Offerees took three re- reject- He ment was fair and reasonable. signed, and one declined the settlement. al., objections along Brennan et ed the *15 permanent These 59 Offerees received sta- objections with other not relevant here. tus, seniority, retroactive or both. In that the particular, he noted settlement layoff For transfer and purposes, the complex, expen- “avoided the need for seniority operated as retroactive one would sive, trial,” lengthy and and that extensive expect. The seniority Offerees’ retroactive already taken at discovery place. had Id. was seniority-bracket effective both the the 146. He also said that settlement was stage stage and the tie-breaker objectives VII; the consistent with Title transfer process. layoffs And if were ever that, occur, although it was the Board and to and Offerees would treated for purposes last-hired, Brennan, the Ahearn, first-fired rule and who Brunkhorst been having as hired on their retroactive responsibility for past bore the the dis- seniority dates. For TCA purposes, how- agreement sought crimination the suit and ever, it is unclear happened what to Offer- correct, to the effect Offerees’ the retro- got seniority. ees who retroactive As the seniority existing permanent active pointed out, district court the record is and was minimal. at Custodians CEs Id. (1) contradictory as to whether Offerees Finally, Magistrate 146-51. Judge the re- already permanent who were employees jected argument of the Brennan et al. that immediately went to top the the list or they right were entitled to intervene as of (2) stayed were, they where and whether pursuant to Federal Rule of Civil Proce- permanent Offerees who were not employ- 24(a)(2). dure court concluded that ees, or permanent who had been employ- protected they did not have a interest year ees for than they less one at the time (1) seniority their because the remedies accepted settlement, put the at were the “designed only afforded the Offerees were top or upon complet- the bottom the list employees to return to positions they the ing probationary periods. their See NYC alleged would have been in but for the III, F.Supp.2d Board at & n. 22. It discrimination,” I, NYC Board 85 is, however, that, clear provided the (2) F.Supp.2d possibility at and agreement, settlement had Offerees Offerees’ retroactive one-year probationary wait out a period affect would-be intervenors before were added to TCA lists. speculative” too “remote and to constitute VI. The Second Circuit Vacates cognizable interest, id. at 156. Accord- Remands
ingly, Magistrate approved Judge settlement and the motion to inter- Brennan, denied ap- Ahearn and Brunkhorst vene. Id. at 157. pealed Magistrate Judge’s decision to issues, that the course we vacated we believe best August Court. the case to allow for a full instructions for the remand remanded development Plain- of the record. permit the Brennan NYC Board to intervene. tiffs omitted). (citation Id. at Magistrate We held F.3d 133. Proceedings on Remand VII. Rule Federal of Civ- Judge misapplied remand, lingered After this case 24(a)(2). First, rejected we il Procedure eight years, district court for about Judge’s argument that Magistrate significant things course of several which seniority rights Plaintiffs’ Brennan (1) the Plaintiffs happened: Brennan filed illegal discrimi- the result presumptively two cases that were consolidated with the nation, “put cart before because (2) case; began main the Government Second, we held that horse.” Id. parts agreement; attack of the settlement in- rights plaintiff or employment civil (3) Arroyo the Caldero and Intervenors a property not have to show tervenor does in response entered the case to the Gov- job in his or its attributes order interest (4) change position; ernment’ additional intervene; rather, a proposed “where (5) discovery place; took hearings unrep- are interests otherwise intervenor’s a set the district court issued of decisions action, in an the standard for resented *16 all, most, upholding but not of the settle- is more burdensome than intervention no against ment the reverse-discrimination at- Id. at 131. standing requirement.” the Plaintiffs, brought by the Brennan tacks Third, the exercise held that “because we approve to the declining settlement as effect,” seniority rights a a has domino a consent decree. a Intervenor’s “loss of desirable Brennan to an Offeree directly need not be transfer A. Brennan Plaintiffs Intervene loss result of the ... for the to be the Complaint a and File Related Agreement.” Id. at 132. [settlement] remand, In October on the Bren- Therefore, Board did not ade- since the Plaintiffs,23 having permitted nan been to represent the Brennan Plaintiffs’ quately intervene, Complaint in filed Interven- interests, court should have the district alleging primarily tion that the retroactive them to intervene. Id. 132-33. allowed 13-16 grants paragraphs however, declined, to address the mer- We agreement the settlement violated Title case: its the Equal and Protection VII the Clause. us dis- Appellants also ask to exercise moved to dismiss these claims Government jurisdiction rule cretionary on 28, 2002, February in November On rather than Agreement, merits of briefed, fully Mag- that motion was before remand case undisput- Levy approved the Judge istrate court____ We think such course agreement, portions ed settlement Appellants be would ill-advised. parties. consent of the with they de- argued convincingly that were arguments certain raised develop record Because of opportunity nied the dismiss, a full and the Government’s motion permitted that would have Brennan wanted to and because the Plaintiffs appropriate ruling the fairness damage two new individuals with constitutionality Agreement. of the Giv- add (John Schauer), and Eric heavily nature of these claims Mitchell en the factual (Kurt Brunkhorst) and one this two new Brennan Plain- added 23. Around time Mortensen) (Scott dropped Spring out. tiffs and Dennis Plaintiffs, simply ruary time, not Brennan satisfied 2003. Around this the Bren- intervene, January an action on filed nan Plaintiffs also their rights invoked (“Brennan”). suit, object In parties judge’s Mitchell to the magistrate 636(c) that, jurisdiction claimed violation of 28 and Schauer U.S.C. to render and, decision, result, had a final as a Title VII and U.S.C. the case to an Judge a transfer Offeree because was returned to Block. each lost implementation Defendants’ Then, September the Govern- agreement. addition to settlement changed ment position again, triggering its claims, all the Brennan Plain- damage yet another intervention. In response to declaratory injunctive re- sought tiffs interrogatories during discovery, some Defendants, DOJ, against lief provided a detailing Government chart its Attorney General. The Brennan case thinking current about which Offerees eventually consolidated the Gov- were entitled to competitive retroactive se- case in November 2003. ernment’s niority. This chart indicated the first that, in time addition to the 32 Offerees Changes B. The Government Its Po- exam, who had not taken as to most of sition; Offeree Interventions Re- whom the Government already had indi- sult cated that it defending 8, 2002, April On the Government filed a settlement, the Government would now response memorаndum Brennan defending also not be the settlement as to February pre- Plaintiffs’ motion for a (but all) some Offerees who taken injunction. memorandum, liminary In this challenged Although exam. the Govern- only partially opposed Government say ment did not group that this latter opposed pre- motion. The Government *17 Offerees was not any entitled to retroac- injunction liminary against the settlement that, seniority, tive say competi- did for as to had a challenged Offerees who taken seniority purposes, tive these individuals exam, as to Offerees who not. had only were entitled to seniority retroactive later, days Two the Government withdrew usually by dates years— about two later — previous its counsel and new substituted provided than those for by the settlement counsel. agreement. The chart also denominated Next, City Defendants moved Offerees who not taken an exam approval the remaining paragraphs claimants,” of of “recruiting as and the others agreement, settlement and is, the Govern- as “testing claimants.” That the Gov- ment opposed “premature.” motion separated this as ernment the Offerees into two 2002, July a recruiting-claim groups, beneficia- stage based on the of hiring ry, Caldero, Janet learned that the Gov- process they at which allegedly suffered longer ernment was no defending set- discrimination. Having learned tlement document, as Offerees such as she. She some of the affected Offerees situation, (the Intervenors) others in having her ob- Arroyo moved to inter- counsel, tained moved to intervene in Octo- vene. granted July Their motion was parties ber 2002. The agreed III, to the 22 2004.24 See NYC Board Caldero Intervenors’ F.Supp.2d intervention in Feb- at 417. then,
24. The said post-remand Government discovery. continues Offerees in See Gov't now, changes to maintain Arroyo indicated Br. at say 14. The Intervenors law, in the chart were the result new changed informa- Government its mind on the tion the Government learned about individual and not because of new facts. We are Opinions they Equal violated the Protection er The District Court’s VIII. The court concluded: Clause. the Brennan discovery, further After (cid:127) Hispanic As to the 28 black or Offer- In- Arroyo Caldero Plaintiffs and court ees before the district in 2006 partial sum- cross-moved tervenors challenged who had taken failed Additionally, mary judgment. exam: the settlement moved enter Defendants (cid:127) ret- The lawfulness one Offeree’s decree, consent and the as a agreement seniority not be roactive could deter- for class certifi- Plaintiffs moved Brennan genuine mined because there was first of court issued its cation. The district issue material fact as whether September See opinions on 2006. three disparate impact Exam 8206 had a III, F.Supp.2d 397. Some Board NYC hearing was re- Hispanics; on remained, however. After of fact issues quired on that issue. facts, court the district hearing on those April 2007. opinion its (cid:127) on second issued actual Seven Offerees were victims City Bd. v. N.Y. United States See and their entire discrimination (E.D.N.Y.2007) Educ., F.Supp.2d 220 retroactive was lawful. anoth- NYC Board After IV]. [hereinafter (cid:127) disputes There were factual remaining fact hearing dealing with still er remaining twenty whether the Of- third issued its the district court questions, ferees were actual victims of dis- May 2008. See United on opinion crimination, but retroactive se- their Educ., v. N.Y. Bd. States niority for TCAs and transfers was (E.D.N.Y.2008) [hereinafter F.Supp.2d 202 they regardless lawful of whether was, at judgment Final NYC Board V]. were Their retroac- actual victims. last, August entered long however, seniority, tive layoff lawful actual vic- September 11, Opinion A. tims.25 (cid:127) Asian, black, Hispanic, the district court As the 31 opinion, In its 2006 female Offerees before first whether the settlement considered VII, in 2006 who had not taken a Title and then wheth- awards violated *18 discriminatory to exami- It a less alternative puzzled by the Government’s claim. is, learned informa- its well be that Government That the Government modified nations. suggesting were not that some Offerees tion legal theory responding was to a not And such informa- victims of discrimination. But, contrary change in facts. explain the Government's refusal tion would view, Arroyo nothing is im- Intervenors’ there as to those Offerees. to defend the settlement proper in The is entitled to that. Government appear to be facts there do not new But law, change position on even in the its why Arroyo In- explaining in the record reason, Yet, of facts. for some absence new who the Govern- tervenors and other Offerees lengths deny goes great to Government to are victims of discrimination ment thinks appears what that it has ever undertaken seniority be entitled to retroactive would posi- legitimate change legal have been a median of the examina- based on the dates Reply 4-7. See Gov’t Br. at tion. failed, they to retroactive senior- tions not provisional appointment ity based on their ruling appeals the party No district court’s 25. (where earlier). are The dates such dates layoff seniority properly limited that was only for such a determination discrimination, of but some actual victims seniority was be that retroactive challenge parties do the determination theory the examinations based on the that particular Offerees were victims. whether theory job-related, on were not and not process appointment was provisional 84
challenged exam were not awards violated the Brennan Plaintiffs’ and/or which among groups those ex- rights under Title VII. The district allegedly disparate impact: had a ams heavily on relied the “affirmative action” Johnson, framework (cid:127) 480 U.S. 107 really a Offeree was white male. One Weber, S.Ct. 443 U.S. seniority unlaw- His retroactive was consistent with which an em- ful. ployer defending plan an affirmative-action (cid:127) seniority The retroactive oth- against a Title VII reverse-discrimination 11 male non-test-taker er Offerees (1) challenge needs to show there they was unlawful unless could show a a traditionally is “manifest imbalance” in they were actual victims dis- (2) segregated job plan category and According crimination. to the dis- “unnecessarily does trammel” the in- court, giving them trict relief with- of adversely terests third parties. affected showing out such a would violate the III, NYC F.Supp.2d Board at 423-24. Equal Protection Clause. rejected The district court the Brennan (cid:127) female non-test-taker Offer- argument Plaintiffs’ that the Weber/John- lawfully could ees receive full retro- son apply. framework did not Id. at 428- seniority active transfer According court, to the district “there layoffs.26 but not purposes, TCA nothing Title VII that vitiates III, F.Supp.2d NYC Board at 446-47. plan granting preferen- affirmative-action reasoning The court’s was as follows. tial non-victims discrimina- First, preliminary addressed issue: tion.” Id. at 429. whether the Brennan Plaintiffs cor- rect their assertion that five supposedly Applying the “affirmative action” frame- Hispanic were not to any Offerees entitled work, the district court found manifest relief because were not in fact His- imbalance for both non-test-taker and test- panic. Relying on the EEOC’s definition failer Offerees. For Offerees who had of “national-origin discrimination” test, failed the district court said that the 1606.1, C.F.R. the district court held Government had satisfied the “manifest place that “an origin ancestral suffi- requirement by showing imbalance” statis- membership protect- cient to establish in a tical pri- evidence sufficient to make out a III, ed F.Supp.2d class.” NYC Board discrimination, testing ma case id. facie definition, Applying at 422. the dis- 425-26, except Hispanics as to who took trict recruiting court held that one claim- 8206; Exam them hearing was ant, Dellaporte, Hispanic. Ciro required, id. 427. For Offerees who LaFaye, Id. other four—Kevin Steven (and therefore, had not taken test who *19 Lopez, and the brothers Nicholas Pantel- reasoned, court the could be victims Pantelides, Anthony ides and Hispan- discrimination, of recruiting they were ic LaFaye’s “because father and the Pan- all), victims at the district court relied on Rico, telides’ mother were born in Puerto analysis Dr. Ashenfelter’s that found a sta- Lopez’s grandfather was born in Mexi- tistical imbalance between the expected co.” Id. black, and actual Hispanic, numbers Next, Asian, sought the district court to deter- and female takers of the chal- three mine seniority whether the retroactive lenged exams. Id. at 427-28. discrimination, 26. The appeal Caldero Intervenors do not the actual victims nor the does holding layoff seniority that challenge was limited to United States it. imbalances, although was sig- the Offerees because there Having manifest found disparity nificant between the number of to the “unneces- proceeded court district black, the white test-takers and number trammeling” inquiry. stage sary test-takers, Hispanic, Asian there was that the transfer district court found this disparity no sufficient evidence retroac- effects of the Offerees’ and TCA by recruiting was caused the Board’s own tram- unnecessarily seniority tive did practices. Id. at 434-35. district Plaintiffs, of the Brennan rights the mel rejected the court Brennan Plaintiffs’ race, gender national origin, because always compelling claim that a interest deciding the factor rarely be would requires showing dispa- intentional transfer, agot a Brennan Plaintiff whether governmental entity treatment rate was the decid- even when one these interest, asserting require- for such a factor the Brennan Plaintiff remained ing was, in judgment, the district court’s ment Id at 431. eligible for future transfers. Supreme prece- inconsistent with Court se- layoff court held But the policy encouraging settle- dent discrimination niority for non-victims of of Title VII Id at ment cases. 436-38. unnecessarily the Brennan trammel The court also found that the transfer and rights. Id. at 431-34. Plaintiffs’ remedy seniority TCA for the test-failer issues, Title VII resolving After those narrowly was tailored under the Offerees Pro- Equal district court examined Paradise, factors listed in United v. States Amend- Clause of Fourteenth tection 149, 171, 480 U.S. ment, Plaintiffs had also since the Brennan (1987). Layoff L.Ed.2d Id at 438-40. settlement under U.S.C. attacked the Offerees, however, seniority even for these minority male For the Offerees narrowly was not tailored. Id. 440-41. applied scrutiny to the district court strict Offerees, analysis For female was grants of retroactive senior- the settlement court, applying different. The district in- III, ity. F.Supp.2d NYC Board scrutiny, require any did not termediate City meant Defendants 434-35. This (Board) showing governmental involve- (1) a compelling had to show interest ment the discrimination Board (2) seniority, and adopting the retroactive remedy, so sought Defendants’ seniority narrowly was that the retroactive gender in remedying interest discrimina- The district tailored meet interest. scrutiny could intermediate tion survive case, that, said in this such particular court remedying where their even interest showing required Defendants might strict race discrimination survive Having strong scrutiny. evidence Id. at 441-43. found demonstrate that transfer and TCA met own recruit- that the Board’s tests and/or “narrowly during tailored” standard its discriminatory. The ing practices were scrutiny analysis, the district court strict showing required then held easily that transfer determined and TCA Hispanic for Black and Offer- was satisfied “substantially seniority were relatеd” test, who the Board ees failed because scrutiny purposes intermediate well.27 and the tests were had created exams Id. at 442-43. discriminatory adequately shown not, It against groups. those racial The district court concluded its first *20 however, by addressing other matters. non-test-taking opinion for male two satisfied (The district layoff se- crimination. Id. 442-43. The court also held 27. reaching “substantially it was niority court made clear aware female Offerees was for unnecessary gender question goal remedying constitutional was dis- related” to the First, enter, TV, to the court refused as a opinion. second See NYC Board parts the of the settle- judgment, F.Supp.2d consent opinion This discussed the that had agreement ment survived the results of hearings responded those and to Equal VII Brennan Plaintiffs’ Title several motions for reconsideration. it Protection attacks. Id. at 443-44. Clause the court that: held Second, sought Brennan Plaintiffs (cid:127) Exam adequately 8206 had been respect class certification with to their shown disparate impact had a injunctive declaratory claims for relief. on Hispanics. Id. at 224-32. though parties Even none of the other (cid:127) There requiring issue of fact responsive pa- either action had submitted hearing as to whether the parties to pers, approved the district court class agreement 1999 settlement intend- under Fed.R.Civ.P. 23. Id. at 444^16. ed distinguish “testing between of “all certified class consisted custodi- claimants,” “recruiting claimants” and employees al whose layoff-protection or whether “the instead intent adversely rights have been affected Agreement was to give relief to blacks seniority grant of benefits to beneficiaries and Hispanics regardless of whether who are non-victims of discrimination.” they a challenged failed exam.” Id. at at 446. Id. 232-33. The district court then listed factual (cid:127) required hearing: true, issues still If the former were then the (a) district court would not hear- which, beneficiaries, hold a any, of the ing as any recruiting- whether Lloyd Bailey, addition to Joseph Christ- claim ie, Offerees Rivera, were actual victims of Lashley, Belfield Pe- Gilbert discrimination, Robertin, summary because at ter Mayra Felix Torres and judgment there was (Cintron), insufficient evi- Zephrini actual are victims of dence to warrant a hearing any on discrimination and received the relief to they claim that (b) were entitled; actual victims. which were whether Id. at 224 n. 233-34. in respect results Exam 8206 satisfy Luis evidentiary Torres stan- (cid:127) If true, the latter were the district discrimination establishing dards for un- said, necessary der Title VII Fourteenth Equal reconsider Protection Amendment; (c) John whether analysis Clause “narrow tailoring” Schauer[, Mitchell and Eric plaintiffs recruiting the male claimants. damages seeking in the second consoli- Id. action,] dated denied transfers (cid:127) clarification, As a Equal Protection favor of particular im- individuals who Clause prohibited contested permissibly received retroactivity [sic] retroactive minority seniority. claimants, recruiting male but also se- Id. 447-48. based, niority benefits under the set- B. April Opinion agreement, tlement on claim- these After holding hearings remaining permanent ants’ appointment dates. issues, factual the district court issued Id. at 234-35. light holding, 53.) VII court’s Title need for remand.” at 443 n. Id. the court said it wanted "to obviate *21 relief for “only [to] seek policy ex- DOJ’s (cid:127) was class was Plaintiffs’
The Brennan discrimination, [m]ake identified victims em- “all custodial to include panded victims of dis- relief for identified whole purposes whose ployees at 206. Baldwin said crimination.” Id. protec- transfers, layoff and TCAs ap- not have and DOJ would that she by the adversely affected tion has been if it had violated agreement proved to the Of- seniority benefits grant policy. that Id. words, In other at 236. Id. ferees.” limited to indi- longer no the class was testimony, the district Based on of senior- grant affected [City viduals that had the De- “conelude[d] court of discrimi- to non-victims ity operated benefits States and United fendants] nation, it limited to individuals nor was assumption- embodied under —-now than layoff protection rather there was a holdings- lost Court’s who —that evidentiary testing transfers or TCAs. sufficient
discrimination, who Hispanics blacks and May 28, Opinion challenged taken one of the exams C. had not included in the list of would not have been May opinion was issued The third Id. at 207. The district Offerees.” intent of the hearing on the 2008 after parties that must have been noted agreement. 1999 settlement parties (1) recruiting in 1999 that some aware V, F.Supp.2d NYC Board See retroactive se- being given claimants were first, two issues: court addressed niority, non-Hispanic, Asians and because in 1999 intended parties whether relief, women received that and non-black “testing-claim into categorize Offerees (2) Hispanics blacks and had “some benefi- “recruiting-claim beneficiaries” challenged one of the exams because taken second, testing- ciaries”; among who determining relevant that factor was an actual victim of was claim beneficiaries relief would be based on the medi- whether testing discrimination. challenged for a exam an hire date heard hearing, the district court At the But hire date.” Id. 206-07. provisional (1) Cote, who had testimony of Norma that testi- court said Baldwin’s the district for the De- the settlement negotiated compelling,” and that mony was “[m]ost (2) Baldwin, fendants, Katherine testi- “[although the Court credits Cote’s directly lawyer who was Government policy was not communicat- mony negotiations but in the settlement involved Board, ... the United States ed to the agreement approved who reviewed have condoned would not simрly compliance. Id. at 205-06. policy for DOJ beyond that went agreement [make-whole] the Government testified Cote at 207. The actual Id. victims].” relief [to claimants into recruit- separated the never relying that it suggested court also beneficiaries, nor had testing ing contract law that principle of general “the that “the United City Defendants told the available where ‘reformation agree- the settlement as to the intended under no mistake parties States[] they supposed calibrat- writing, make-whole relief provide ment to words of the differ- injury.” would be legal individual outcome ed to each [OJfferee’s ” Indeed, (quoting n. 4 27 Williston testified she Id. at 207 at 205. she ent.’ Id. 70:128). ed.2003) (4th For ex- “ever on Contracts not recall the Government did reasons, court decided the district why they these these wanted plaining] [her] holding that retroac- its seniority.” not to reconsider retroactive get individuals to recruiting claimants seniority for male tive Baldwin testified Id. at 205-06. *22 “narrowly for Equal tailored” actual victims had would not be who received make- purposes. Id. at 207. Protection whole relief. Clause (cid:127) The court then made determinations as Ricardo was an Cordero actual vic- among testing the 27 claimants who tim and appropriate received make- that, The court said were actual victims.28 whole relief. He had failed Exam claimants, question for each of these and seniority his retroactive seniority was “whether retroactive date was appropriately the median approximately corresponds they received hire date for that exam. Id. at 209. seniority they received (cid:127) Vernon Marshall was an actual vic- discriminatory but for the exams.” Id. at tim, seniority but his retroactive Additionally, parties 209. “the adjustment date required because, Agreement i.e., the United and States — “for clear,” reasons are not it proof.” Board —bear burden of Id. years was over two earlier than the The court’s determinations were as fol- median date for the exam he failed. lows: Id. at 209-10. (cid:127) Lloyd Christie, Bailey, Joseph Seven— (cid:127) Sean Rivera not an was actual vic- Rivera, Lashley, Belfield Gilbert Peter tim. agreement The settlement had Robertin, Torres, Mayla Felix Ze- given him a retroactive (Citron) phrini victims of dis- —were date of November 1995. He appropriate crimination who received scored an 80 on Exam which relief, make-whole the Bren- because had a median hire date of October nan Plaintiffs had ac- (supposedly) 27, 1997. barely-passing This score knowledged this.29 Id. at 208 & n. 6. put Rivera close to bottom of the (cid:127) Arroyo Ten—the Intervenors —did not Eligibility exam, List for so that require a determination to actual he had not been hired at the time of victim they stipu- status because had the 1999 agreement settlement layoff lated to seniority dates.30 Id. at it unlikely was he ever would 208 & n. 7. odds, be. Against he was hired (cid:127) Two, Seara, Ronald Johnson Fidel from the list all on February after require did not a determination be- 2000. The district court said that cause former had and the retired view that Government’s Rivera latter had died. Id. at 208. higher would have scored on a non- (cid:127) remaining For the eight, parties exam, discriminatory and would stipulated
had to facts but were unable earlier, therefore have hired been effect, on agree legal their so “purely speculative.” Id. at decide whether were 210. had, 28. The district court did this because was no there basis in the record for the dis- among in its opinion, held that the test- say court to trict otherwise. ing claimants actual victims enti- layoff seniority, tled although testing all stipulation provides 30.This that if we or the claimants —whether victims or not—were en- Supreme Court hold that actual victim status seniority. titled to transfer TCA Arroyo any Intervenors matters for purpose layoff other than retroactive seniori- infra, V.C, explained As in Discussion Part ty, stipulation longer apply then nowill say they the Brennan Plaintiffs now never any further remand. acknowledgement made such and that
89 The (cid:127) injunctions pending appeal. Calde testing Offerees— or other five The Lambert, Fields, stay only An- a Intervenors asked for as to Thomas Carla ro Pantelides, Anthony Pagan, gel of the district court’s declarato portion actual vic- Luis Torres —were stripped minority that male ry judgment Plaintiffs, Brennan either. The tims seniority stem recruiting-claim Offerees appli- post hoc review relying on appointment ming permanent from their performed by qualifications cant City v. N.Y. Bd. dates. See United States they while were City Defendants (E.D.N.Y. Educ., 413, F.Supp.2d 620 415 the Govern- litigating against still 2009) NYC Board The VI]. [hereinafter ment, that these five argued sought Intervenors to have the Brennan “experience papers” failed the have enjoined “providing from City Defendants they passed had even requirement seniority any competitive benefits took. The court exams Agreement beneficiary of the Settlement post in this hoc although, said (‘the 11, February on 1999 executed review, hiring pro- unlike the actual (1) the extent that the com Agreement’) to cess, opportunity no there was from seniority benefit resulted petitive of an “ex- appeal an administrative (2) district found Agreement, [the court] rejection, the Gov- papers” perience were not a form of those benefits failed, summary at the ernment relief to actual victims of dis make-whole to meet its burden judgment stage, (3) crimination, and [the court] evidence that providing “concrete provision nonetheless found incorrect as hoc review was post not violate the law.” Id. those benefits did qualifica- any of the fivе whose (modification omitted). at 416 Id. at 210-11. challenged.” tions are stay of the sought complete Defendants all judgment. Id. The district court denied Lawsuit IX. The Miranda motions, stating three that “neither Miranda, 2006, Hispanic Ruben irreparable threat of harm nor the likeli aligned with incumbent Custodian male sufficiently appeal hood of success Plaintiffs, yet another filed the Brennan justify disturbing what one-sided to of Title VII and alleging violations lawsuit legally to be the correct Court believes Miranda by § Defendants. 1983 result.” Id. at 417. that he was denied two transfers alleged gotten and that he would Discussion for the retroactive transfers but and Mar- to Offerees Janet Caldero given Background I. Title VII Jarrett, the transfers instead. got cia who injunctive declaratory re- sought He Act of Rights Title of the Civil VII (“Mi- lief, damages. That case as well as two seq., prohibits § 42 2000e et U.S.C. ”) below, consolidated was dealt randa was on the types employment discrimination judgment, final in the district court’s race, color, sex, religion, or nation- basis of appeal.31 of this part and is al origin. Stay Applications X. Disparate-treatment discrimination Act, § 42 prohibited cross-ap appeals numerous After 2000e-2(a). require claims filed, Such parties sought stays U.S.C. three peals transfer, part of this appears but that case is not to have Brennan also 31. John alleging appeal. brought a lost another case in (1989), “establish that the defen- plaintiff Congress L.Ed.2d 733 discriminatory Rights dant had a intent motive enacted the Civil Act of Ricci, taking job-related 102-166, action.” No. Pub.L. 105 Stat. 1071.32 The 2672; also 2000e- see U.S.C. Act added a section codifying new *24 2(a) (“It an employment unlawful shall be 42 disparate-impact prohibition. See fail practice employer 2000e-2(k). for an ... to or § U.S.C. to individu- discharge any
refuse to hire or
VII,
separate
706(g),
§
A
section Title
of
al,
any
to
against
or otherwise
discriminate
§
eq-
42
2000e-5(g),
U.S.C.
addresses the
respect
compensa-
to
individual with
his
may
uitable remedies a court
order after
conditions,
tion, terms,
or
of em-
privileges
liability
proven.
is
provides
statute
of
ployment, because
such individual’s courts with
equitable powers:
broad
race,
sex,
color, religion,
or national ori-
If the court
that the respondent
finds
...”).
gin.
intentionally engaged
has
in or is inten-
tionally
an
Disparate-impact
engaging in
employ-
discrimination
unlawful
by
Disparate-
practice
is also
Title
ment
in
charged
complaint,
barred
VII.
the
court
impact
require
showing
may enjoin
claims do
of
the
the respondent
discriminatory
impact
engaging
intent.
from
in
Disparate
employ-
such unlawful
employ
practice,
an
occurs when
uses an
ment
and order such affirma-
ment
has a
action as
practice
disproportionately
appropriate,
tive
which
Ricci,
may include,
protected
to,
adverse effect on
groups.
limited
rein-
An employer
hiring
employees,
The Supreme
v. Duke
Griggs
is,
al victims of discrimination —that
those
Co.,
849,
424,
Power
401 U.S.
91 S.Ct.
28
individuals who would not have
(1971),
suffered
interpreted
L.Ed.2d 158
first
employer’s
703(a)(2)
employment
adverse
action
§
prohibit
of the 1964 Act to
in nondiscriminatory
world:
disparate-impact discrimination.
re-
sponse
pro-defendant
to some
interpreta-
No order of
require
the court shall
tions of disparate-impact
by
made
doctrine
admission or reinstatement of an indi-
Supreme
union,
Court Wards
Pack-
as a
Cove
vidual
member of a
or
Atonio,
ing
642,
reinstatement,
Co. v.
490
hiring,
U.S.
109 S.Ct.
promotion
or
3,
nio,
("The
642,
pur-
2115,
32. See id.
93
explained,
Haven
In
the Ricci Court
New
order to address
at 2672.
703(a) disparate-
“rejected
sоlely
the test results
because
Plaintiffs’
Brennan
procedural
higher scoring
candidates were white.
present
claim its
treatment
which
...
question
must first determine
whether the
we
posture,
Generally,
applies.
justification for its race-based ac
framework
lawful
overall
analyzed
are
under
claims
Because Court’s plaintiffs pretext. See back show cite explicitly in Ricci33 does not opinion (Ginsburg, J., (sug dissenting) at 2709 in id. Douglas any other case McDonnell have been gesting might that New Haven line, wheth might reasonably one ask liable, on the view of the even dissent’s ought apply other framework er some law, city “seeking had to ex if the been of this sort. reverse-discrimination cases however, view, firefighters promotion”). white from fits within clude In our Ricci well therefore, We, As conclude that Ricci does Douglas framework. the McDonnell IV.B.l, opinion in detail in Part 33. The Ricci is discussed infra. 703(a) § summary-judg analytical within the framework impose new set forth framework, burden-shifting Douglas
ment
in
Corp.
McDonnell
v. Green.
constitutes,
respect,
plaintiff
a Once a
a prima
stead
establishes
facie
of the first
case that
has
straightforward application
two
race or sex
been taken into
Douglas.
steps
employer’s employment
of McDonnell
account
deci-
sion,
the burden shifts to the
Supreme
The earlier
Court cases deal-
nondiscriminatory
articulate a
rationale for
703(a) challenges
ing with
affirmative
its decision. The existence of an affirma-
plans
support
action
further
the view that
tive
plan provides
action
such a rationale.”
is
Douglas
appropriate
McDonnell
(citation omitted)).
Ricci,
case. Like
framework for this
these
disparate-treatment
cases
reconcile the
apply
Douglas
We therefore
McDonnell
provisions
VII with the
of Title
statute’s
to the Brennan Plaintiffs’
claim.
recognizing
goals by
other
a defense
question
which And the first
we must
address
employers may
they
raise when
are sued whether the Brennan Plaintiffs have satis-
for disparate
Supreme
treatment.
fied the requirements
prima
for a
facie
explicitly
Court
stated that
has
the “affir-
case under
Douglas.34,
McDonnell
We
defense,
too,
properly
easily
mative action”
conclude that the Brennan Plaintiffs
step of
raised at the second
McDonnell
made out a prima
case. All but
facie
Douglas
(not
framework.
See Johnson
one of
plaintiffs
v.
the individual
count-
Transp.
Clara
Agency,
County,
ing
Santa
unnamed
members
class certi-
616, 626,
1442,
court)
U.S.
fied
L.Ed.2d
the district
are white
(1987) (“This
case also
readily
fits
males.35
dispute
There is no
as to their
judicial
The district court considered whether the
issues for
hardship
decision and the
ripe,
Brennan
claims were
parties
Plaintiffs'
since
withholding
court consider-
ation,”
Gardner,
laid
had not been
off and some of
136,
them
Abbott
v.
Labs.
387 U.S.
arguably
been denied
(1967),
transfers or
87 S.Ct.
97 that, factors, urge, except purposes for of including the nors of several as one promotions. applicants seniority,38 implementation the qualifications layoff upheld plan this Court Supreme agreement satisfied John- the settlement attack plaintiffs the male against because, they say, it son and Weber was requirements. two it satisfied because it by a manifest imbalance and did spurred a “mani- First, by prompted was plan unnecessarily rights trammel not underrepre- reflected that fest imbalance the Brennan Plaintiffs. See NYC Board traditionally segre- of women sentation III, In F.Supp.2d light at 423-34. Id. at job categories.” gated Ricci, Brennan Plain- agree we with the omitted). “A mani- (quotations S.Ct. holding that the district court’s tiffs need not be such fest imbalance analysis. in the skipped step a threshold prima against facie case support is, voluntary, That to determine whether a at employer,” id. 13 race- sex-conscious private, pri- although just how far below eligible action is for the JohnsonfWeber a “manifest imbalance” level ma facie defense, courts must now ask whether the event, In go was left unclear. could and sex-conscious action constitutes race- imbalance” John- there was “manifest because, issue, at all. In son, plan an affirmative action among positions occupied by positions of the 238 was case, “none in the question nega- we answer that woman,” properly and this fact was tive.39 though “in an imbalance even viewed as quali- not job categories women were some 1. Ricci comparable repre- to their
fied in numbers force.” Id. at the labor sentation recent decision in Supreme Court’s Second, plan did not 1442. S.Ct. voluntary all Ricci indicates race- “unnecessarily rights trammel[] gender-conscious employer action is an absolute employees create[] male analyzed properly under Weber John- 637-38, to their advancement.” Id. bar Ricci, In son. New Haven because the 1442. This was so S.Ct. a promotional administered examination “quotas,” the imposed “goals” but not plan firefighters. yielded The results for its “had no absolute entitlement plaintiff male according racial significant disparity: position” ... and retained his cur- rules and virtue of the promotion along and title with the abili- position rent scores, eligible all test ten individuals and “the ty apply promotions, for future then-existing lieutenant vacancies were Plan intended to attain a [defendant]^ white; eligible and of the nine individuals force, work not to maintain one.” balanced vacancies, then-existing captain for the two 637-40,107 1442. Id. at S.Ct. Hispanic and seven were white. See Application of Johnson Weber B. racial at 2666. Because of this Agreement
to the Settlement and, allegedly, because of fear of disparity from black fire- disparate-impact lawsuit case, In instant the district court Haven Service held, Arroyo fighters, Interve- New Civil and the Caldero and light holding, ad- Arroyo of our we need not Intervenors do 38. The Caldero Plaintiffs' alternative con- dress Brennan determination appeal the district court’s 703(a) always prohibits em- tention grants layoff were not voluntarily making ployers race- or sex- from valid affirmative action. to a facial- conscious non-remedial alterations non-discriminatory seniority system. ly *31 98 certify litigation the test results. Id. does not involve affirmative ac- did not
Board tion.”). firefighters group A of white at 2667-71. 703(a) disparate for sued under
then
Ricci,
held, rely-
Before
this Court had
treatment.
Weber,
prima
that “a
a
ing
showing of
employment
facie case of
discrimination
Court, correctly, de-
Supreme
a statistical
of
through
demonstration
dis-
as a “race-
New Haven’s decision
scribed
proportionate
impact
racial
a
constitutes
But,
action.” Id. at 2674.
even
based
sufficiently serious claim of discrimination
addressing a
though
Court
predicate
to serve as a
for employer-initi-
703(a)
suit at-
reverse-discrimination
ated, voluntary race-conscious remedies.”
tacking
voluntary, private
a
“race-based
Comm’n,
N.Y.
Bushey v.
State Civil Serv.
action,”
majority opinion
did not cite
(2d
(footnote
220,
Cir.1984)
733 F.2d
or Johnson. Nor did
Court
Weber
omitted).
reasoning,
Based on that
we
“un-
the “manifest imbalance” and
apply
against §a
upheld,
703 reverse-discrimina-
Instead,
necessary trammeling” factors.
challenge, public
adjust-
tion
a
employer’s
adopted
Court
basis
evi-
“strong
promotional
ment of
scores
examination
VII, before
dence” standard: “under Title
prison employees,
for
in order to avoid a
can
employer
engage
an
in intentional dis- disparate impact on minority officers. Id.
purpose
crimination
the asserted
Ricci, however,
posi-
After
227-28.
avoiding
remedying
an unintentional
in Bushey
tion taken
is no
tenable.
longer
disparate impact,
employer
must have
prima
A
disparate impact
case of
facie
strong
evidence to believe will not, post-Ricci,
adequate
predi-
factual
subject
liability
if it
disparate-impact
be
types
cate
all
gender-con-
race- or
race-conscious,
to take the
discrimina-
fails
employer
scious
actions. At least some
tory action.” Id. at
Ricci
thus
2677.
gender-conscious actions,
race- or
such as
clear that at
makes
least some race- or
rejection
of test
scores because
their
voluntary
sex-conscious
employer actions
distribution,
racial
are not affirmative ac-
subject
not
are
to the “affirmative action”
by
tion and therefore cannot
supported
analysis of Weber and Johnson.40 See id.
imbalance,”
mere “manifest
even
(“This
J.,
(Ginsburg,
dissenting)
at 2700
case of
prima
disparate impact.
facie
supplemental
concerning
their
challenge
employer
actually
In
brief
to an
action that
Ricci,
go
Brennan
ask us to
Plaintiffs
on an
plan.
is based
affirmative-action
See
They argue
further.
that it would be "anoma-
Humphries
County
v.
Special
Pulaski
Sch.
provide
if "an
lous”
could
race-
Dist.,
(8th Cir.2009)
580 F.3d
694-97
conscious or sex-conscious benefits under Ti-
(applying Johnson and Weber to an affirmative
readily
VII more
tle
than it
cancel the
could
-Ricci).
event,
post
plan
action
In
"if
results of its chosen
device.”
selection
precedent
Supreme]
of [the
Court has direct
essence, they ask us to hold that Ricci over-
case,
application
yet appears
in a
to rest on
entirety,
rules Johnson and Weber in their
so
rejected
reasons
in some
other line
deci-
strong-basis-in-evidence
applies
test
sions,
Appeals
Court
should
follow
cases,
in affirmative-action
and the "manifest
controls,
directly
leaving
case which
to [the
trammeling”
"unnecessary
imbalance”
Supreme]
prerogative
overruling
Court the
test of those older
We
cases is no more.
need
Felton,
Agostini
its own decisions.”
v.
argument.
do not address this
Be-
203, 237,
U.S.
117 S.Ct.
L.Ed.2d
we
cause
hold that the
ac-
Defendants'
(1997) (quotation
marks and modification
tion,
action,
being
affirmative
is not sub-
omitted); Rodriguez Quijos
de
v. Shearson/Am.
ject
employer-favorable
more
test of
Inc.,
477, 484,
Weber,
Exp.,
490 U.S.
ques-
Johnson and
we
do not reach
(1989);
99 Implementation ignores of the order as remedies the Is the fundamental Agreement private an difference between volitional be- Settlement by Action Plan? havior the exercise of coercion Affirmative the Johnson, 8,n. State.” U.S. at 630 Ricci, Since, not all or sex- after race- (citation omitted). rely We employer actions con- voluntary conscious § 706(g) the for their cases definition might action” that “affirmative stitute is, of what аction and not affirmative for under analyzed Johnson properly their discussion affirmative of when action Weber, what is an affirma- must decide we permissible. not. agree tive and what is We plan action that Plaintiffs in order Firefighters with the Brennan Local Union No. v. 178/ plan, Stotts, action an em- to be an affirmative U.S. (1984) all
ployer action must benefit members of § L.Ed.2d 483 is the earliest 706(g) protected Although plan may class. relevant case to a definition of affirmative determinations, Stotts, call for individualized firefighters action. black plan cannot be individualized. Tennessee, 703(a) itself Un- Memphis, brought §a definition, der this Defendants’ pattern-or-practice racial discrimination voluntary implementation the settle- against claim Memphis Depart- Fire an agreement ment is not affirmative ac- After negotiations, ment. settlement plan. Defendants, tion The and the consent approved decree was entered and them, support intervenors who therefore by the district Among court. other things, cannot their affirmative rely on action de- the consent provided hiring goal decree fense. year, for black firefighters. The next be- difficulties, cause of budget Memphis de-
a. What Is an Affirmative lay cided to employees some off. Under a Plan? Action city contract between the Fire- fighters’ Union, layoffs were to follow The Court has never said Supreme hired, what, “last first fired” rule. The result purposes Weber/Johnson 703(a), following rule have been to lay § is an ac- defense to affirmative significant off a plan. proportion tion But has black fire- the Court differentiat- fighters, thereby undoing much of ed action from other what affirmative forms hiring goal Upon accomplished. had might 706(g) § relief a court order under VII, the black firefighters’ request, § 2000e-5(g). of Title U.S.C. We injunction prevent court issued think an applicable that distinction is here. firefighters off. being black from laid The cases, delving Before into those we Appeals In order Court affirmed. that, § pause adopting to note comply injunction, city with this laid affirmative action definition of found firefighters off or demoted several white cases, § Supreme 706(g) Court’s we do instead, even more though se- suggest authority not mean to of a niority firefighters protect- than the black to order an do some- injunction. by ed (as thing 706(g)) limited is cotermi- power nous the several made in employer’s arguments to do Of favor injunction, thing voluntarily violating same without of the Stotts district court’s one 703(a). Supreme particular Court has ex- is relevant here. Court (1) pressly rejected proposition, Appeals for the reasoned that Stotts “suggestion firefighters a Title employers should be able black had shown VII violation, could, voluntarily to do than no more courts can district court under *33 100 city lay
§ the 706(g), illegal have ordered not to victim of discrimination.” Id. But (2) there finding any that had been “no that of firefighters, anything off the black protected layoff blacks from § had been a 706(g) court can order under victim of discrimination and no award of prov- a Title violation has been when VII competitive seniority any of them” at en, can also order to the court effectuate the time of the consent decree. Id. Stotts a Title purpose the VII consent decree. did, however, expressly deciding avoid 578, at 104 2576. The Supreme Id. S.Ct. “[wjhether City, a public employer, disagreed Court with first of these could have taken this course without vio- that premises, Ap- and held “the Court of law,” lating Memphis had acted “uni- peals imposed parties adjunct on the as an laterally,” is, voluntarily and not un- something that could not settlement 583, der court order. Id. at 104 S.Ct. gone been ordered had the case 2576.41 plaintiffs proved pat- trial and the that a
tern or
practice
discrimination existed.”
28,
The next significant case is Local
579,
A
Id.
S.Ct. 2576.
court could
EEOC,
Sheet Metal Workers’ Int’l Ass’n v.
relief,
not have ordered such
the Court
421,
3019,
478 U.S.
106 S.Ct.
92 L.Ed.2d
(1986).
explained, because “a court can
28,
award
In Local
the Government
competitive seniority only when the benefi-
successfully
sued
union
a long
with
ciary
actually
of the award has
egregious
been a
history of discriminating against
Arroyo
employers
The
Intervenors assert that the Su-
or unions is outside the ambit of
preme
question
Court answered this
regardless
in Local
Title VII
of its effect on nonminori-
93,
Firefighters,
rights
No.
Int’l Ass’n
AFL-CIO
ties....
of nonminorities with re-
Cleveland,
501,
C.L.C.v.
spect
by
478 U.S.
employers
to action
their
are delin-
3063,
(1986).
VII....”);
526,
§
The district
city’s seniority
have interfered with
simply
the union
tempt, not
because
fashioning
remedy.
a Title
system
VII
goal,
but also because
not met
“policy”
prohibit
This
was read to
comply with the re-
union had failed to
relief,
awarding
court from
make-whole
underlying affirmative
quirements
competitive seniority, backpay,
information
such as
plan, and had withheld
action
court,
to individuals who were
promotion,
the administrator and
from
employment opportunities
denied
monitoring the union’s
thereby making
434-35,
unrelated to discrimination.
reasons
difficult.
Id.
compliance
injunction was con-
an-
The District Court’s
court issued
S.Ct. 3019. The district
“poli-
inconsistent with this
year of
sidered to be
order after another
contempt
other
435-36,
it was tantamount
cy” because
noncompliance.
Id.
(in
make-whole relief
the form
award of
at that time established
3019. The court
seniority) to individual
membership
competitive
minority
slightly different
firefighters
black
who had not shown results had been certified. As the Su-
proposed layoffs
preme
were motivat-
Court explained:
However,
by
ed
racial discrimination.
question
[W]e [do not]
an employer’s
this limitation
individual make-whole
affirmative efforts to ensure that all
authority
relief
not affect a
does
court’s
groups
fair opportunity
apply
to order race-conscious affirmative ac-
for promotions and
participate
in the
process
tion. The
purpose
affirmative action
which promotions will be
whole,
is not to make identified
made. But
that process
victims
once
has been
employers
to dismantle
established and
prior patterns
rather
have made
clear
criteria,
their selection
employment
they may
pre-
discrimination and to
*35
not then
results,
invalidate the
in
test
vent discrimination
the future.
thus
Such
upsetting an employee’s legitimate ex-
provided
relief is
to the class as a whole
pectation not
judged
to be
on the basis
members;
rather than to individual
no
so,
of race. Doing
a strong
absent
relief,
entitled to
individual is
and bene-
in evidence of an impermissible dispa-
ficiaries need not show that
were
rate impact,
...
is antithetical
themselves victims of discrimination.
In
notion
a workplace where individuals
case,
neither the membership goal
are guaranteed equal opportunity re-
nor
required petitioners
the Fund order
gardless of race.
train particular
indenture or
individu-
als,
at
words,
S.Ct.
2677. In
required
and neither
them to
other
admit
when
an employer,
ante,
acting
ex
membership
although
individuals
who were re-
light
discrimination,
of past
fused admission for
establishes
reasons
unrelated
hiring or promotion procedures designed
discrimination.
to promote equal opportunity and eradi-
(citation
Id. at
bargaining agreement recently negotiated
governed by
“affirmative action”
Weber
Kai-
the United Steelworkers and
between
hand,
on the one
Johnson
race- or
197-98,
Id. at
vidualized
at 206. The district
policy.
Id.
vened
gender
class is
a racial
flexibility in how
found,
testimony,
on the basis of
require-
undermine
defined does
intend-
agreement was
that the settlement
provide,
plans
action
affirmative
ment that
limited
Al-
to make-whole relief.
ed to be
basis,
all
equal benefits to
prospective
on a
gone beyond
though the awards
beneficiary class.
members of
relief,
skeptical
we are
as to
make-whole
rely
also
Intervenors
The Caldero
an affir-
employer
adopt
an
can
whether
(1st
Roache,
F.2d 446
Cir.
v.
Stuart
an
by accident. When
plan
mative-action
1991)
J.), in which the First Cir-
(Breyer,
an affirmative-action
employer
adopts
Equal
Protection
under
upheld
cuit
consciously, with
plan,
generally
it
does so
plan for
promotion
a race-conscious
Clause
“not to make identified victims
purpose
promotion
police officers.
Boston
whole,
prior pat-
but rather to dismantle
fell short of
black officers
goals for
employment
discrimination and
terns
eligible
of such officers
number
projected
future,”
in the
Lo-
prevent discrimination
they amounted to 15.5%
promotion:
28,
474,
at
3019.
cal
478 U.S.
eligible pool con-
while the
sergeants,
all
heightened
strict or
scruti-
applying
When
at
officers.
Id.
tained about 20% black
ny
gender-based
to race- or
classifications
But,
differently
racial
defined
like
context, the
Equal
in the
Protection Clause
class,
goal
promotion
a smaller
gender
Supreme
“[t]he
Court has cautioned
action into indi-
not turn affirmative
does
genuine, not
justification must be
[actor’s]
goal
relief. A 15.5%
and 20%
vidualized
post
or invented
hoc
re-
hypothesized
to the class as
“provided
are both
goal
litigation.”
States v. Vir-
sponse to
United
individual members.”
rather than to
whole
2264,
515, 533, 116 S.Ct.
ginia, 518 U.S.
28,
474,
m (“Fear alone cannot an litigation justify slightest hint of disparate impact.” ”). on race.... employer’s reliance If See id. 2674-75. evidence from after employer’s gender-based race- or deci Second, strength of the evi account, were taken sion into there would liability disparate-impact dence of is meas negatives be false positives. and false employer ured at the time the took the employers might Some take inappropriate action. gender-based race- or examin gender-based race- or actions in the hope ing the evidence marshaled New Ha expectation or that a strong basis in evi ven, the Ricci considered what Court dence would later emerge; employ other city at the time it knew made its actually ers who do have a strong basis in decision, any further and not information might evidence voluntary refuse to take that arose afterwards. See id. at 2678-81. Similarly, generally action for fear that the Court referred to later evidence would strong of a basis in Moreover, the absence evidence undermine that basis. still oth (“On E.g., tense. id. at 2681 past er employers would be held liable for dis us, genuine record before there is no dis parate disparate treatment or for impact City a pute strong lacked basis though even based on the evidence of dis it disparate- evidence to believe would face parate impact them, then they before act impact liability if it certified the examina correctly ed at the time made their results.”). underlying tion The rationale All decisions. such results are inimical to Ricci, moreover, confirms that the evi Ricci.47 gauged at the dence is time of the Third, prima either an actual case race- employer or sex-conscious action. facie of disparate-impact liability required, strong-basis-in-evidence standard is strong a prima basis evidence of a ... intended to balance” “strike[ ] be facie required. case is say Ricci does not provisions tween the Title concerning VII which, disparate disparate treatment and as the of New impact, Haven was that employers right so make the decisions faced with an undisputed prima case facie in the first at 2675. place. Id. of disparate impact. Id. at 2677-78. Nev- ertheless, explicitly rejects because Ricci
Thus,
creating
Ricci seeks to avoid both
proposition
employer
that “an
in fact
legal
“employers
framework under which
disparate-im-
must be
violation of the
likely
taking
would hesitate before
volun
pact provision
compliance
before it can use
tary
being proven
action for fear of later
suit,”
as a defense in a disparate-treatment
wrong
litigation
in the course оf
and then
likely
treatment,”
seems
that no more than a
disparate
strong
held to account for
employers
prima
and one under which
un
basis
evidence that a
case
facie
gender-]based
dertake “race- [or
action at
exists would suffice.48
If
Id.
2674.
an
however,
goes
saying,
Regardless
47.
It
without
prima
of whether it
anis
actual
cannot,
employer
in order to obtain a desired
strong
case or
basis in evidence of a
facie
result, ignore,
intentionally
learning,
avoid
prima
required,
case that is
it is clear
facie
dispa-
evidence that bears on the likelihood of
condition,
requirement
necessary
that this
ais
rate-impact
liability.
employer
An
who did
condition,
and not a sufficient
for the Ricci
using
"strong
that would be
basis in evi-
prima
disparate-
"[A]
defense.
facie case of
pretext
dence” defense as a
for intentional
impact
liability essentially,
threshold
—
Ricci,
discrimination. See
A somewhat more difficult
cases
the tension between
non-job-
just
strong
eliminating segregation
how
the evidence of
and discrimination
discriminatory
doing away
relatedness or a less
alter-
on the one hand and
with all
governmentally
imposed
must be. Two boundaries are clear
discrimination
native
opinion.
from the Ricci Court’s
The evi- based on race on the other.” Id. at 2675.
certainly
liability
strong- Balancing
goals requires
dence of
must be
those two
“evi-
effect,
Ricci,
(citation
gender]
Additionally,
Equal
Protection Clause
Strong
in
Basis
Evidence
prohibit
government
does
from
Necessity
an
taking actions which have
unintentional
Davis,
disparate impact, Washington
see
v.
Even after an employer has
426 U.S.
Petitioners
Government would
the burden of
disparate-
plaintiffs,
er must
in violation of the
on the reverse-discrimination
are,
course,
employer's
several avenues
defeat an
There
satisfaction of the
disparate
plaintiff might
strong-basis-in-evidence
treatment
standard.
which
some
approach applies
their “actual violation”
employer, to show
not on the
Title
violation only
employer’s
an actual
VII
absence of
those cases where the
But that shift of
actual victims.
against
voluntary
allegedly
action
violates the con-
nothing to
proof does
avoid
the burden of
rights
employees
tractual
of those
who are
Em-
Ricci focused.
dangers
on which
gen-
not the beneficiariеs of the race- or
perspec-
an ex ante
acting from
ployers,
der-conscious action. But there is no basis
tive,
themselves as “[f]or-
would still view
Indeed,
limiting
way.
Ricci
know,
they
unless
...
to act
bidd[en]
stated,
adopt
strong-
“we
Ricci Court
violates the dis-
certainty,
practice
that a
basis-in-evidence standard as a matter of
Id. In
provision.”
order
parate-impact
statutory
construction to resolve
con-
strong-basis-in-evidence standard
disparate-treatment
flict between the
Supreme Court seems to
way
work the
provisions
disparate-impact
of Title VII.”
it,
does
have intended
an
who
added).
(emphasis
ap-
Id.
Ricci
that a
in evidence
race-
strong
have a
basis
plies
strong-basis-in-evidence
standard
necessary
action is
gender-conscious
conflicts,
all
regardless
such
of whether
remedy
disparate-impact
viola-
avoid or
rights. Signifi-
involve contractual
rely
strong
on its
tion must be able
cantly,
rights
there were contractual
when a reverse-discrimi-
evidence
Ricci, and the
never
suggested
Court
Otherwise,
occurs.
“em-
challenge
nation
give
exception
these would
rise to
to its
likely
taking
would hesitate before
ployers
balancing
careful
of disparate treatment
voluntary
being
action for fear of later
disparate impact.
See id. at 2665
litigation
proven wrong
the course
(describing
firefighters’
the New Haven
disparate
and then held to account for
requirements concerning
and its
CBA
employers
If
who
treatment.” Id.
examinations,
promotional
including spe-
required strong
spe-
basis in evidence that
percentage weighting
cific
of the written
past
dispa-
cific
victims of
Offerees
(re-
examinations);
and oral
id. at 2679
anyway
could be found liable
impact
rate
job-relatedness
viewing
percent-
plaintiff
shows that there was no
when
*48
age weighting
strong-basis-in-
under the
disparate-impact
actual
violation or that
standard,
job-relat-
evidence
not an actual
action bene-
gender-conscious
the race- or
standard).
people
fited
who were not actual victims
edness
(or
beyond
benefited actual victims
Consent-Decree, Settlement-Ap-
victimhood), it would
of
extent of their
proval,
706(g)
§
Cases Do Not
employer
little comfort to the
703(a)
Apply
§
in the
Context
burden
with
other
proof
of
rested
side.
Plain-
The Government and the Brennan
The Brennan Plaintiffs and the Govern-
assert,
alternative,
cite,
support
ment
in the
of their position,
also
tiffs
sev-
circumstances,
instance,
J.,
(Alito,
potential
concurring).
dis-
But when and
challenge
employer may
arguments might prevail
parate impact
how such
under Ric-
patently
be so
meritless that a court could
ci are issues that we need not address in this
Here,
reasonably
employer
case.
the Government and the Bren-
conclude
could
they
objectively
not have had
reasonable fear of
nan
ask us to hold that
can
an
Plaintiffs
circumstances,
liability.
plaintiff
simply by disproving
In other
rebut
Ricci defense
might
employer’s
disparate impact
demonstrate that the
con-
the existence of an actual
disparate impact liability
pre-
position
square
cern
And that
does not
about
violation.
Ricci,
textual and that the real reason for its dis-
with
which makes clear that the ab-
not,
criminatory
"illegitimate”
sence of an actual violation is
without
treatment was
one,
more,
strong-basis-in-
placate
politically impor-
such as
sufficient to defeat a
"to
Ricci,
constituency.”
showing.
tant racial
129 S.Ct. at
evidence
consequences
ing
remedy
of
after a violation
addressing
cases
has been
eral
agree-
proven,
or in which a court
entering
deciding
of
settlement
is
a court’s
decree,
approve
whether
a settlement
approv-
a consent
a court’s
or to
ment as
decree,
settlement,
enter
as a consent
ordering
ger-
or a court’s
not
al of a
present
mane to this case which does not
706(g)
§
of Title
If
remedy
under
VII.
any
Here,
of those situations.
stan-
import
into
we were
question remaining before us is
cases,
whether
in those
then the
applicable
dards
employer’s
gender-
unilateral race- and
could, indeed, be liable
City Defendants
conscious action taken for the purported
disparate
they
treatment even
had
purpose
remedying disparate
impact vi-
they
strong
had the
demonstrated
703(a).
question
olates
And that
gov-
But
required by
in evidence
Ricci
Ricci,52
by
erned
cases,
varying
those
while
de-
relevance,
do
control the case
grees
not
The Government first relies on United
case,
City
before us.
the instant
Hialeah,
City
States v.
cussions,
give
court-approved
did not
their con-
class-action
holding
held that
court’s
of no more than that a
“[a]
The Eleventh Circuit
sent.
private
agreement
settlement
or an
may
parts
not enter
of a
em-
unilateral
ployer’s
action does not violate
operate
decree that
proposed consent
703(a)
nothing
impair
does
the con-
legal rights
party
of a
who
diminish
rights
parties.
tractual
of third
Consider
on that
Id. at
objects
the decree
basis.”
simple example:
employee
fired
984;
v.
see also United States
(5th Cir.1981)
employer.
employer
her
She sues the
435,
664 F.2d
Miami
(1)
employer
two theories:
(en banc)
violated
(Rubin, J., concurring);
id. at
by firing her because she is fe-
J.,
(Gee,
concurring in
and dis-
part
(2)
male; and
the employer breached her
us,
In the case
senting
part).53
before
employment
If
rejects
contract.
a court
disput-
the district court did
enter the
(1),
theory
employee
nevertheless re-
of the settlement as a consent
portions
ed
(2).
pursue
mains free to
theory
Her con-
principle
decree. The
that a consent de-
tractual rights,
legal rights
other
dispose
cree cannot
of the claims of a
may
against
she
her employer, re-
consent, therefore,
party that withholds its
Moreover,
unimpaired.
main
it is well set-
application
has no
here.
voluntary
tled that no
settlement —wheth-
Kirkland involved this Court’s review of
decree,
er entered as a
approved
consent
decision, in a
a district court’s
Title VII
23(e),
under
agreed
private-
Rule
to in
disparate-impact
brought by private
case
dispose
can
of the claims of a non-consent-
enter a
plaintiffs, to
class action settlement
Wilks,
ing
party.
third
See Martin v.
23(e).
pursuant to Fed.R.Civ.P.
See Kirk-
755, 768,
U.S.
104 L.Ed.2d
land,
at 1121.
711 F.2d
The settlement
(1989), superseded by
statute on other
adjustments
agreement called for
grounds,
Rights Act
Civil
Pub.L.
eligibility
allegedly
lists derived from the
(“A
102-166,
No.
voluntary
105 Stat. 1071
discriminatory civil service examination.
settlement in the form of a consent decree
We
judgment,
affirmed
district court’s
employees
between one
group
and their
and we distinguished the Fifth Circuit’s
‘settle,’
possibly
cannot
volun-
in City
ground
decision
Miami on the
otherwise,
tarily or
the conflicting claims
non-minority
intervenors in Kirk-
group
employees
of another
who do not
rights
land had no contractual
join in
agreement.”);
Local No.
settlement would alter.
Id. at 1126-31.
(“Of
course,
U.S.
S.Ct. 3063
Government,
According to the
we must
parties who choose to resolve litigation
permit the Brennan Plaintiffs to show that
through
may
settlement
not dispose of the
disputed
practices
tests and recruiting
claims of a
party,
third
and a fortiori
job-related,
the case before us are not
impose
obligations
duties or
on a third
here,
says,
because
the Government
party, without that party’s agreement. A
Brennan Plaintiffs’ contractual rights will
approval
court’s
of a consent decree be-
impaired.
tween some of the parties therefore cannot
*50
problem
The
with this contention and its
dispose of the valid
claims
nonconsent-
City
intervenors;
reliance on
ing
raised,
Hialeah and Kirkland
properly
these
that,
unlike some consent decrees or
claims remain
litigated by
638,
104,
In Grant v.
Local
53.
present
373 F.3d
110— decree. The case before us does not
(2d Cir.2004),
issue,
City
disagreed
111
we
with
that
for the district court’s decision not
Hialeah’s
analysis
appealability
agreement
of the
of a
to enter
settlement
as a con-
district court's
appealed.
decision not to enter a consent
sent decree has not been
(citation
intervenor.”).
367-68,
volun-
The
Defendants
Id.
S.Ct. 1843
omit-
ted).
with the Offerees
tarily contracted
give
the Offerees
the Government
again,
misper-
Once
the Government
seniority, but that contract can-
retroactive
procedural posture
ceives the
in-
of the
“purport
not
to resolve
not and does
applies
stant case. Teamsters
when a
...
might have
as a
claims the Union
ordering
remedy
§
court is
706(g)
under
530,
contract,” id. at
106 S.Ct.
matter of
But
question
of Title VII.
“the
of individ-
3063.
§
ual
706(g)
relief
does not arise
[under
]
compounds its error at
The Government
proved
employer
until it has been
stage.
In the
the victim-identification
employment
has followed an
policy of un-
view,
the district
court
Government’s
361,
lawful discrimination.” Id. at
applied
burden-shifting
should have
§ 706(g)
In Teamsters and other
of International Brotherhood
framework
703(a)
cases, §a
violation had
proven
been
States,
v.
Teamsters
United
U.S.
question
remedy
was what
324, 362-76,
S.Ct.
L.Ed.2d 396
court should order. The case
before us
(1977).
Teamsters,
Supreme
Court
present posture
judicially
its
is not about
held:
ordered remedies at all. It is about volun-
proof
pattern
practice
tary
action
employer
and its relation to
any particu-
supports
inference
703(a).
§
only question
we face is
decision, during
pe-
employment
lar
whether the
Defendants have violated
discriminatory
in which the
policy
riod
703(a)
§
by engaging in intentional reverse
force,
pursuit
was made
against
discrimination
the Brennan Plain-
only
The Government need
policy.
§A 706(g)
tiffs.
case like Teamsters does
that an
individual
alleged
show
discrimi-
speak
question.
to that
espe-
That is
unsuccessfully applied
job
natee
for a
cially
Supreme
so because the
Court has
potential
therefore was a
victim of
employers acting voluntarily
held that
can
proved
discrimination....
[T]he
do more than a court could order them to
burden then rests on the
Johnson,
§ 706(g).
do under
See
480 U.S.
appli-
the individual
demonstrate
at 630 n.
cant was denied an
here,
apply
Teamsters
we would be
tunity for lawful reasons.
telling employers precisely
can-
(footnote omitted).
Id. at
3. The Brennan Have An- Plaintiffs Grace, ployer, investiga- W.R. was under Remedy Any other Breach of by tion alleged EEOC for discrimina- Contract Defendants against tion blacks and women. W.R. Plaintiffs, joined by The Brennan the Grace saw its collective bargaining agree- Government, that, further assert do ment employees’ expire we with its union dislinguish[] For a discussion of the relevance Team- the issues whether there has remedy appropriate, sters for what see Part been a violation of Title VII and what the IX, See also Cates v. Trans World Air- appropriate remedy is for such a viola- infra. lines, Inc., (2d Cir.1977) 561 F.2d ...”). tion. ("[The Supreme sharply Court's] decisions *52 decision, During there was a strike. reversed the district court’s strike, replace- strike W.R. Grace held that W.R. Grace to arbitrate the hired. ments, including jobs women who took grievances. An arbitrator then awarded by held women. previously never When backpay employees, to some of the male by signing of a strike was settled finding that the contract had been breach- bargaining agreement, collective new backpay appropriate ed and that was the agreement provided that the old em- new remedy. again W.R. Grace sued under get shift-preference their ployees would § hoping this time to have the arbitra- But seniority kept back. W.R. Grace tion award set aside. strike-replacement posi- women their § When this 301 suit reached the Su- tions, seniority greater ahead of men with Court, preme W.R. Grace and the United positions were entitled to those under who award, argued States that the arbitration bargaining agreement. the new collective bargaining and the collective agreement, grievances pursuant The men filed to the arbitration of could not be enforced because procedures. CBA’s While were pending, contrary those claims was W.R. Grace en- public policy. The Court disa- agreement into a conciliation with tered greed: EEOC, provided which the women Company’s Given the desire to reduce only keep unit would not bargaining workforce, its it is undeniable that the jobs employees ahead of the male their Company was faced with a dilemma: it seniority; company with more agreement could follow the conciliation also, force, a reduction in the event of by as mandated the District Court and lay more employees off male liability risk under the collective bar- necessary percentage maintain gaining agreement, or it could follow the bargaining in the unit. women bargaining agreement and risk both a Grace, acting under W.R. contempt liability. citation and Title VII Act, Management Labor Relations dilemma, however, was of the Com- sought injunction against U.S.C. pany’s making. company own com- the arbitration of the Union bar voluntarily mitted itself to two conflict- grievances that looked to relief in conflict ing obligations. contractual When the agree-
(cid:127)with the terms of the conciliation attempted Union to enforce its contrac- ment. The Union counterclaimed to com- rights, Company sought judi- tual arbitration, asked, pel while the EEOC cial declaration of its obli- respective things, declaratory other for a among gations the contracts. During under judgment agreement that the conciliation litigation, course of this legal before the prevailed over the CBA. While cross-mo- determined, rights finally were the Com- summary judgment pend- tions for pany again laid off employees and dis- ing, Grace laid off some W.R. male em- honored its contract with the Union. ployees violation of their contractual acts, For Company these incurred seniority rights. grant- The district court liability for breach of contract. In ef- summary judgment ed to the EEOC and fect, interpreted the col- [the arbitrator] Grace, holding W.R. the conciliation bargaining agreement lective to allocate agreement paramount. was The Union Company the losses caused appealed, appeal pend- while Company’s decision to follow the District ing Grace laid off some more male W.R. proved Court order that to be employees pursuant to the conciliation errone- agreement. Appeals Then the Court of ous.
122
(footnotes
767,
2177
omit-
paid
103 S.Ct.
conciliate would be
for with the
Id.
ted).
employer’s
rights.
fault
Because was
union’s contractual
previously
it had
discriminated
that
(citations
771,
Id.
S.Ct.
omit-
and then entered into two
against women
added).
ted; emphasis
contracts,
employer
it was the
conflicting
voluntary imple-
The
Defendants’
that
bear the loss.
should
agreement
mentation of the settlement
case,
agreement
our
like the conciliation
argued
enforcing
W.R. Grace also
Grace,
preclude
W.R.
cannot
enforcement
contrary
poli-
arbitration award was
existing
rights
contractual
contained
cy
voluntary compliance with Title
VII.
bargaining agreement.
any
a collective
If
770-71,
2177 (citing
Id. at
103 S.Ct.
Alex-
of the Brennan Plaintiffs were to file a
Co.,
36,
ander v. Gardner-Denver
415 U.S.
891,
grievance with Local
and if Local 891
(1974)).
44,
1011,
sion,
employer’s
added incentive to
collective-bargaining remedies are sepa-
policy
attempt
The national labor
under the Na-
ances must
use of the contract
requires
tional Labor Relations Act
an em-
grievance procedure agreed upon by em-
ployee’s
claim that her
has
uniqn
ployer and
as the mode of redress.
If
bargaining agreement
breached a collective
press
only perfunc-
union refuses to
union,
proceed
through
first
under
claim,
torily presses the individual’s
differ-
agreement’s grievance
and arbitration
ences
arise
to the forms of redress
procedures.
Republic
Corp.
See
Steel
v.
pro-
then available. But unless the contract
Maddox,
650, 652-53,
379 U.S.
otherwise,
vides
there can be no doubt that
(1965) ("As
general
56. The
Court criticized some
claim that
Brennan Plain-
Government's
pects
in its recent decision
of Gardner-Denver
rights
replace
entitle them to
tiffs' contractual
Pyett,
Penn
LLC v.
556 U.S.
in 14
Plaza
strong-basis-in-evidence
the Ricci
standard
1456, 1469-72,
When the Government
in-Evidence Standard
agree,
private
such
settlement and
strong-basis-in-evi
Under
without the consent of the union repre-
standard,
dence
Defendants need
employees,
senting incumbent
take
things
to show three
in order to avail
away
employees’ contractual rights
those
Supreme
themselves of the defense the
alleged
for
the benefit
victims of dis-
(1)
703(a)
recognized in
crimination,
they
Court
Ricci:
that
§
way
is not the correct
prima
(or,
were faced with a
employees
poten
for the incumbent
to seek vindi-
facie
rights
tially,
cation of their
a strong
under the contract.
basis in evidence of a pri
case)
proper way
(2)
is through the union ma
disparate impact;59
facie
See,
Grace,
e.g., W.R.
prove
At the
we
same
the Brennan
Plaintiffs’ contention that the
Defen-
The Brennan Plaintiffs do
deny
not
allegedly discriminatory
dants’
recruiting
recruitment practices qualify as employ-
practices
recruiting,
practices.
is,
and ment
argument
Their
essen-
—word-of-mouth
advertising
prohibited
limited
tially,
703(a)(2),
which makes it ille-
—are
Title VII even if
disparate
gal
limit,
cause a
for an
“to
segregate, or
impact. Like the other
classify
courts that have
his employees
applicants
addressed similar arguments, we are un-
employment
any way
which would de-
persuaded. As the Sixth Circuit has stat-
prive or tend to deprive any individual of
ed, the “assertion that disparate impact
employment
opportunities,” does
refer
*57
analysis is inapplicable to ...
recruiting
recruiting,
because people who don’t
practices
plainly
very
incorrect. The
apply
job
even
for a
of recruiting
because
purpose of
disparate
Title VIPs
impact
discrimination
“applicants
are not
for em-
theory is to eradicate
But,
barriers which dis- ployment.”
says,
as the Government
race,
criminate on the
gender,
basis of
Supreme
Court has all but held that
religion,
protected
and other
classifica-
“applicants”
potential
includes
applicants
Warren,
703(a)(2)
tions.” United
City
States v.
§
in the
disparate-impact context.
(6th
1083,
Cir.1998)
Cove,
138 F.3d
1094
(quota-
7,
See Wards
liable
interpre-
quirement
for
prima
case/strong
under an
of a
basis
facie
ee,
successfully
strong
that
have to show a
in evidence
then have
shown
basis
would
agree-
testing
of the settlement
that Offeree was a victim of
implementation
that
City
a
made the
Defen-
as whole
Essentially,
City
ment
De-
discrimination.
discrimination,
for reverse
dants liable
required
would be
a
fendants
show
703(a)
§
VII. That is so
of Title
under
strong basis in evidence that the Offeree
have a
employer cannot
because
test,
or that
took
Offeree could
a
anyone
that
strong basis
evidence
successfully have
or
[his
“undertake[n]
no
of discrimination
there is
victim
proving
difficult
that
[he
task
her]
that
in evidence
discrimina-
strong basis
as
applicant ]
should
treated
she]
[an]
has occurred.
tion
presumptively
and therefore
entitled to
[is]
reason,
Second,
§
if the
accordingly”
706(g).
and for the same
relief
under
See
Teamsters,
a strong
Defendants can show
basis
City
have
Recreating
past
the
is difficult in the
had used the
Defendants
less
§ 706(g) context addressed in Teamsters.
discriminatory alternative instead.
employer
It is even more difficult when an
strong
if there was a
undertakes
Alternatively,
voluntary
basis
remedial action that
703(a).
employment practice
challenged
§
an
under
in evidence that
Ricci and
In
impact
706(g) context,
§
disparate
necessarily
that had a
discriminated
a court
job-related,
already
it was
it be-
has
found an actual
because
violation
361-62,
much
difficult
Title
See
comes
more
VII.
id. at
1843.
S.Ct.
how
All
court to determine
much retroactive
the court has
to do
then
is to determine
could
who
an actual
prop-
Defendants
victim of that discrimina-
“
tion,
erly
each
give
violating
Offeree without
‘recreate the conditions and re-
703(a).
Suppose,
example, that
that
lationships
would have been had there
discrimination,”
challenged
discriminatory;
it
tests were
is been no’ unlawful
at
id.
(if
exactly
Franks,
tell
when
nigh-impossible
(quoting
cruiting practices job-re- either were not discriminatory or had less alterna- lated court, case be- deciding this The district tive. Ricci, whether each Offeree asked fore victim, Second, of whether an actual instead the that district court twice said strong had a City Defendants the “acknowledge the Brennan Plaintiffs an actual that each Offeree was evidence victims of [Offerees] seven result, As we must vacate victim. testing under the claims discrimination so that the district judgment and remand re- appropriate and received make-whole can the correct standard. apply court Christie, Lloyd Bailey, Joseph Bel- lief: addition, find- of the district court’s several Rivera, Lashley, Ro- field Gilbert Peter require comment. ings bertin, Mayra Zephrini Felix Torres and (Cintron).” III, NYC Board First, above, district as discussed V, 419; see also F.Supp.2d NYC Board any de- did not make individualized court F.Supp.2d at 208. The Brennan re- alleged to victims of terminations as state, and the Plaintiffs Government discrimination, it conclud- cruiting because no such concession was made. agrees, prima no case ed that there was facie provide court a cita- The district did we recruiting Because discrimination. assertion, support tion to the record to its question on the of wheth- have remanded remand, in 2006 or in 2008. On either er, prima there was a under Ricci facie explain court should either the ba- district ease/strong-basis-in-evidence prima of a discrimination, assertion, for its deem matter for- in- sis recruiting case of facie feited, strong-basis or make individualized pertaining dividualized determinations for each of individu- will determinations these recruiting-discrimination victimhood extent the district als.67 required to the appears 703(a), If a § must III. district court uninten- ployees the court Board under i.e., record, tionally there is impose remedy 706(g), under it must to have misstated past, appeal perform yet another recreation of no reason wait until to have Teamsters, directly governed by especially time That is because this issue corrected. so knows, we, which the must recreate the conditions court the district court far better than relationships that would have existed any it had basis in the for its whether record violated court in this case un- assertion. district plaintiffs. against employee derstandably get the incumbent judgment to final wanted doing the court balance And so must quickly possible, as but we remind plain- employee interests of those incumbent any mis- parties unintentional factual against of the innocent beneficia- tiffs those left well result in statements uncorrected action that was delay ries of race-conscious would have if the more than occurred Part under given opportunity deemed unlawful Ricci. See court were district infra Indeed, place. IX. itself first correct in the arguably appeal parties forfeited alleged factual misstatement parties had district court’s It would have been better if the failing a reconsideration motion. court in raise pointed issue out to Hills Smith ex rel. Smith v. Hollow See of the several motions reconsideration one Half Dist., (2d n. 3 made Cent. Sch. 298 F.3d the district first filed after Cir.2002). Compare Conley v. Bd. Trs. opinion in NYC the assertion in its *62 Third, Arroyo the district court did not address Intervenors actual vic- were Arroyo were whether the ten Intervenors tims of discrimination who received no The dis- testing victims of discrimination. more than when make-whole relief held, as to them other trict court had implemented Defendants the settle- discrimination, testing alleged victims of agreement. ment limited seniority was that retroactive Fourth, the district court did make actu- layoff purposes only. for actual victims al-victim for status determinations the re- Arroyo In- parties then resolved maining Cordero, eight Offerees: Ricardo layoff seniority by stipula- tervenors’ dates Fields, Lambert, however, Carla Thomas Vernon stipulation, provides tion. That higher Marshall, a court that Pagan, Anthony conclude Angel “[s]hould Pantel- is ‘actual victim’ status relevant ides, Rivera, Sean and Luis Torres. The any seniority of the lawfulness benefits (1) court found that Cordero and that these beneficiaries received under the Marshall, exam, each whom failed Agreement purpose obtaining actual victims and the retroactive temporary assignments, care transfers seniority lawful, they received was NYC right hearing each shall have the to a on V, (2) 209-10; F.Supp.2d Board ‘actual victim’ status in [the district court] Rivera, was, against odds, Sean who Additionally, on remand.” “[i]n the event years after of delay hired because his any by higher remand a court for a barely put passing very score him at the purpose that is to the related lawfulness of bottom of the eligibility list where it was benefits received [Ar- unlikely hired, he ever was not royo Intervenors], stipulated these dates an actual victim “hypothetical because his longer apply.” shall no Because we have a performance nondiscriminatory [on concluded that the retroactive transfer and purely is speculative,” exam] as is “what seniority given Arroyo TCA Interve- a yielded such score would have in terms nors, that given Offerees, like to the other (3) date,” 210; of his hire id. at violates of Title VII to extent other five Offerees would not have been supported it is aby strong basis in hired even a nondiscriminatory under evidence each individual was an actual exam qualified, because were not id. discrimination, victim of the stipulation no at 210-11. portion We vacate this longer result, on applies remand.68 As a judgment because district court should subject any possible of course to stip- new have asked ulation, court, whether the remand, Defendants the district on will strong have to address whether the had basis evidence that City Defen- these dants strong victims, evidence individuals were not whether the Cnty. Hosp., Grenada 707 F.2d waiving challenge 178-79 order avoid to that (5th Cir.1983) ("As decision.”). general ap- ruling principle appeal aof final Nev- review, ertheless, pellate we refuse consider issues since kind of forfeiture is not see, Blumenthal, jurisdictional, e.g., particularly raised below. refusal This Dean v. when, here, (2d Cir.2009), appropriate requests F.3d party 67 n. and since required the trial court remand to the event, judgment to reconsider the district court is conspicuously we proce- leave the matter in able omits a contention of its hands. irregularity dural could (citation omitted)), immediately.” corrected argue 68. The Brennan Plaintiffs that one Of- Labs., feree, Clement,
with Walkerv. Abbott 340 F.3d inappropriately Andrew (7th Cir.2003) ("There simply stipulation. no rule or stricken from this Because the litigants requires case law that stipulation longer apply, move will no we need not interlocutory ruling reconsideration of an address that contention.
133
gender-conscious
that its
or
evidence
race-
actually were victims.69
individuals
necessary
disparate-
actions
to avoid
were
moreover,
of
note,
some
the
that
We
liability,
ment]
R.R.
v. Metro-North Commuter
Robinson
—
proof’
(2d Cir.2001).70
the Board —bear
burden
Co.,
F.3d
161-62
of each Offer-
as to the actual-victim status
through
strong-ba-
Teamsters
Viewing
V,
at
F.Supp.2d
Ricci,
209.
ee. NYC Board
employer,
lens
an
sis-in-evidence
Ricci
re-
Although
gender-conscious
under
before
takes a race- or
it
remedy
disparate-
bears the
action
or
a
verse-discrimination defendant
to avoid
violation,
strong
showing strong
impact
basis in
must have
at trial of
burden
possible
imagine a
actual-victim Offeree of retroactive
It
scenario
which,
that,
fact,
imple-
at
the time
settlement’s
made
her
him or
whole.
mentation,
lacked a
Defendants
strong
particular
basis in evidence that a
Of-
argue
Team-
70. The
Plaintiffs
Brennan
discrimination,
feree was
victim of
only applies
disparate
sters
treatment
present
is able to show that she
Offeree
position
disparate impact.
That
is con-
fact
was in
a victim
discrimination.
trary
precedents. Teamsters itself was
to our
situation,
discussed in
reasons
case,
held
disparate-treatment
but we have
V.A.l,
supra,
Part
Defendants would
inquiry
disparate-impact
cases
"an
703(a),
employ-
as an
remain liable under
stage
pattern-or-
of a
similar to the remedial
strong-basis-in-
of the Ricci
er's satisfaction
claim,” i.e.,
practice disparate
treatment
measured
the time of the
evidence test is
inquiry,
generally required.”
"is
Teamsters
gender-conscious
employer’s
action.
race-
Robinson,
dress important, more there Even is least that, possibility has cautioned some the constitutional is- Supreme The Court If longstand- sues not come back to us.74 fundamental and will although “[a] por- judicial requires disputed district court finds that the ing restraint principle agreement reaching avoid constitutional tions of settlement violated that courts i.e., necessity entirety, in advance of the their questions them,” satisfy strong- cases Defendants failed deciding some “inad- of Ricci with to vacate for the basis-in-evidence standard visable and remand” respect employment prac- of them statutory any issue court below to address tices, neither we the district court judicial economy” then nor where “considerations of will whether De- addressing the constitution- need address strongly favor Equal also Protection Lyng merits. v. Nw. Indi- fendants violated the al issue Ass’n, one, like our 485 Clause. In cases where Cemetery Protective U.S. 445-47,108 issue addressing constitutional could dis- L.Ed.2d 534 (1988). case, pose but there is at least one judicial restraint principle of issue which by sending non-trivial non-constitutional [a] would not be “vindicated case after a certainly dispose be a also re- what would almost could case on court, prac- to the district better trip ] round Id. mand court[ brief below.” clearly suggestion premature emphasize such a 74. We that we do not intend to undeveloped light factual record on ought to reach suggest that the distriсt court Indeed, particular the relevant issues. result on remand. Primus, tice to remand for district court to See Richard Dispa- The Future of See, first. e.g., Impact, (2010); the latter West- address rate Mich. L.Rev. 1341 Mamaroneck, Day ViU. Primus, chester Sch. v. Equal Richard Protection and (2d Cir.2004) (“Prudence Three, F.3d Disparate Impact: Round against reaching out to (2003). counsels establish Harv. L.Rev. 493 far-reaching rule there when constitutional We, therefore, decline at this time to many upon are other bases which this case parties’ address the under contentions decided.”). may ultimately be Equal Protection Clause.
Moreover,
prudential principle
avoiding unnecessary
adjudi-
constitutional
VIII. Class Certification
strictly
where,
cation “has been
followed
argue
Caldero Intervenors
case,
present
in the
difficult or far-reach-
the district court
should
ing constitutional issues are raised.” Fed.
They
certified the Brennan class.
contend
Long
Comm’n v. Cent.
Election
Island
*66
that the district court abused its discretion
Comm.,
Immediately
Tax
616
Reform
in certifying,
violated
process, by
due
Cir.1980)
(2d
(en banc)
45, 52
(per
F.2d
failing
give any party
to
other than the
curiam).
at
There
least
are
two such is-
Brennan
an opportunity
Plaintiffs
to brief
First,
sues in the case before us.
the issue of class certification.
areWe
call
parties
upon
to
question
us
decide a
persuaded.
explicitly
the Supreme
open
Court
left
in
review
We
class-certification decisions
“meeting
Ricci: whether
the [Title VII]
Robinson,
for abuse of
E.g.,
discretion.
strong-basis-in-evidence standard would
Here,
Fourteenth Amendment. Remedies
IX.
4.
Dellaporte
not a member of
Ciro
and, therefore,
Equal
protected
or the
class
If
violation
found,
any
to
relief.
the district
entitled
Protection Clause
normally
Nothing
prоhibits
"although we
78.
in our mandate
the dis-
It is true that
will
briefs,
reply
exercising
not consider issues raised
trict
remand its au-
court from
on
arguments
response
class,
will
raised in
we
consider
thority modify
decertify the
nor
to
arguments
appellee's
made
brief.”
[an]
par-
are the Caldero Intervenors or
other
Bari,
States v.
599 F.3d
180 n. 6
United
asking
prohibited
ties
the district court
from
Cir.2010)
curiam) (citation omitted).
(2d
(per
authority.
See Fed.R.Civ.P.
exercise that
here,
Inter-
But
to the extent that
Caldero
Miller, Kane,
23(c)(1)(C); Wright,
&
7AA
Fed-
argu-
raise
venors can be read to
Rule
(3d
§ 1785.4
eral Practice & Procedure
ments,
respond
arguments do
those
ed.2005).
anything in the Brennan Plaintiffs' brief.
above,
5. Except as stated
mined,
relief
it would
premature
be
say
us to
provided by
Agreement
com-
exactly what
scope
of the district
ports with Title VII and the Four-
court’s equitable discretion might be.79 As
teenth Amendment.
for the Brennan Plaintiffs’ damage claims,
those
depend
too
on the
Attached
district
judgment
court’s
were two sched-
determination of the scope
ules
listing
“proper”
liability.
competitive se-
damage
niority
premised
claims are
specif-
for the
dates
Offerees.
ic Brennan Plaintiffs’ having lost transfers
We do not decide the proper
scope
specific
why
Offerees. That is
the dis-
here.
remedy
We
review Title VII
trict court
claims;
dismissed those
it had
remedial order
issued
706(g)
under
held that “[t]he transfers at issue ... com-
abuse of discretion. “Our function is not
ported with Title VII and the Fourteenth
to exercise our
discretion,
own
but to de-
Amendment.” Before any damage award
termine,
light
of the purposes of the
appropriate,
district
Act, whether the district court judge has
must
determine,
first
under the standards
abused
Against
his.” Ass’n
Discrimina-
we have set forth in
opinion,
whether
tion in Employment,
Inc. v. City of
Defendants violated the law when
Bridgeport,
(2d
647 F.2d
Cir.
they gave the transfers to
1981).
particular
those
Similarly, “federal courts have lee-
Offerees.80
way to
appropriate
fashion
relief,
ap-
pellate tribunals have accorded
will,
It
course,
be impossible for the
courts broad discretion to
equitable
frame
district court to fashion a remedy that
remedies for constitutional violations so
everyone
makes
happy, much less whole.
long as the
granted
relief
is commensurate To the extent that the City Defendants’
with the constitutional infraction.” Cooper
employment practices were discriminatory,
v.
Serv.,
U.S.
(2d
Postal
577 F.3d
there were too many victims to count. A
Cir.2009) (quotation marks and
few,
brackets
Offerees,
got permanent appoint-
*68
omitted). And, since the
of
scope
City
the
ments and retroactive seniority. Others,
Defendants’
yet
liability is
to be deter-
like
Miranda,
Ruben
did not. And there
79.
note,
As the Brennan Plaintiffs
ques-
the
said,
having
That
been
we do think that the
equitable
tion of an
remedy for reverse dis-
district court’s declaratory judgment over-
relating
crimination
types
to certain
of
stepped
retro-
particular
in one
respect:
the district
active seniority given to certain
may
Offerees
stripped
permanently
layoff
all
seniori-
be moot.
example, any
For
Offeree who
ty
just
has
seniority
retroactive
those
—not
—from
been
is,
"broadbanded” —that
elevated from
individuals as to whom the district court
Custodian to CE without an
(1)
exam under the
found
they
that
were not victims of dis-
relatively
change
recent
City
crimination,
the
Defen-
(2)
the
benefits
dants'
permits
rules that
promotions—
such
received from the
agreement
settlement
vio-
appears to lose his or her transfer and TCA
lated Title VII
Equal
the
and/or
Protection
seniority
promotion.
upon
There would be
Clause.
In order to obviate the need for a
impose
no need to
remedy
a
modifying
subsequent
such
appeal, we deem it appropriate to
an Offeree's
or TCA seniority
transfer
date.
advise the district court that
remedy,
such a
if
Additionally,
on,
litigation
this
drags
some
reimposed
remand,
on
would constitute an
individuals
cease
employed
to be
by the
abuse of discretion. To the extent that the
Defendants,
City
rendering any adjustments
court,
district
equitable
as an
remedy for re-
their seniority
dates moot as well. We do
verse
against
discrimination
the Brennan
court,
doubt that
Plaintiffs,
district
when it
away any
takes
seniority,
Offeree’s
chooses a remedy, will first determine which
seniority
Offeree’s
date should remain his
seniority
retroactive
present
awards still
a live
permanent
or her
appointment date under the
controversy.
agreement.
settlement
non-
There can
no doubt that the Brennan
an untold number of
be
may well be
Plaintiffs,
many
of members of
failed the chal-
who
Offeree individuals
class,
by
certified Brennan
were harmed
prevented from learn-
tests or were
lenged
appointments
of the
permanent
Offer-
openings
and CE
ing of the Custodian
seniority stemming
ees and
from
Had
recruiting
of
discrimination.
because
appointments. And
those
extent
successfully pursued its
the Government
the settlement benefited some Offerees un-
settling,
of
judgment
instead
case
redress,
lawfully,
adjust-
in the form of
one of those
probably have been
would
But,
seniority,
justified.
appears
ments in
“require[d]
class-
which would
cases
once
court has
the district
reduced each
individualized,
wide,
than
assess-
rather
seniority
“unlawful” Offeree’s
to his
her
relief,”
monetary
because “identi-
ments of
date, permanent-appointment
value
entitled to relief
fication
the individuals
further modifications to
dates be-
drag
quagmire
the court into
would
quickly.
gins
dissipate
Such additional
judgments
result in mere
hypothetical
heavy
upon
place
modifications
cost
inno-
Robinson,
guesswоrk.”
necessarily
adopt”).
have refused to
The
This
Requires
A.
No Gloss
think
Ricci
Supreme
apparently
Court
did not
from
by
To
Application
Permit
Court
required
that district courts
further
Court on Remand
guidance
begin applying
District
to
the stated
holding today
how Ti-
rule: “Our
clarifies
Ricci,
cir-
originating
in this
case
applies
tle VII
to resolve competing ex-
cuit,
Supreme
addressed the
Court
disparate-treatment
under the
pectations
raised
“whether the
question
same
here:
Id.
disparate-impact provisions.”
at
liability
disparate-impact
purpose to avoid
Thus,
simply
2681.
I would
remand this
prohibit-
be
excuses what otherwise would
light
case
further consideration in
discrimination.”
disparate-treatment
ed
attempting
anticipate
Ricci without
to
Ac-
DeStefano, 129
v.
2674.
Ricci
questions
resolve
that are
now before
principles”
that “statutes and
knowledging
us and that
never arise in this case.
directions,”
“point in different
seemed to
actually
Case-by-case
judgments
review
pro-
the “task ...
to
the Court set itself
oppor-
based on
will afford sufficient
Ricci
guidance
employers and courts for
vide
tunity
application
strong-
to discuss
prohibitions
when these two
situations
rule in particular
basis-in-evidence
circum-
in conflict absent a rule to recon-
could be
stances.
end,
Toward that
cile them.”
Id.
by
B.
following
Majority’s
rule:
Concerns Raised
pronounced
Court
Discussion
in in-
engage
an
can
[B]efore
discrimination for the asserted
tentional
majority’s
the pa-
efforts
define
avoiding
remedying
purpose
rameters of the Ricci rule
advance of
impact, the em-
disparate
by
unintentional
application
the district court raise a
in evi-
ployer
strong
must have
basis
my
of concerns in
mind. The
number
subject
it
merely
to believe will be
to following
dence
are
illustrative.
disparate-impact
liability
it fails to
First,
in a
engage
order
detailed
race-conscious, discriminatory
take the
generally
of Title VII
discussion
law
action.
Ricci
particular
light
the evidence
case,
majority
finds
explained
Id. at 2677. The Court
itself
“objec- obliged
requisite
had to
at the outset to decide the stan-
strong tive,” id.,
applicable
and could not be satisfied
“a dard
to review of the factual
(and contradictory)
appeal
on an
from an
stray
few
statements
record. While
Further,
record,”
summary
usually
judgment,
in the
id.
award of
we
light
re-
in the
favorable
applied
strong-basis-in-evidence
review
facts
most
see,
dispa-
non-moving party,
e.g.,
three
Wilson
quirement
prongs
all
(2d
C.I.A.,
Cir.2009),
analysis
forth in 42 v.
586 F.3d
rate-treatment
set
2000e-2(k)(l)(A),
majority
employ
at 2677-
elects
the “clear
see id.
U.S.C.
(1)
see,
trial,
(concluding
“City
applicable
faced error” standard
after
York,
e.g.,
v.
New
437 F.3d
prima
disparate-im-
facie case of
Skoros
Cir.2006).
(2)
(2d
ground-
This choice is
pact liability,” but
the evidence raised
however,
confusion,
ed
in record
than
“no
more
genuine dispute
[discarded]
*71
(3)
job-related,”
majority explains,
law. As the
while
examinations were
majori-
“the
respondents
strong
disposed
in evi- district court
vast
“lacked
...
equally valid,
ty
upon
issues
cross-
dence
less discrimina-
relevant
...,
summary judgment
recognized,
motions for
in court have
it is not well-suited
to answer
to be
about
the second. See
v.
appears
what
a confusion
Ricci DeSte-
(2d Cir.2008)
fano, 530 F.3d
99-100
procedural posture,”
case’s
some issues
(Cabranes, J.,
Jacobs, C.J.,
Raggi,
“‘evidentiary
were resolved after
hear-
”
(dissent-
Wesley, Hall,
JJ.)
and Livingston,
ings.’ Ante at
to
[91-92]. Unable
discern
banc)
ing from denial of rehearing en
“why the district court held these hear-
(suggesting that issue should be resolved
trial,”1
ings,
majority
rather
than a
by
analysis);
mixed-motive
id. at
accord
“it
to
simply decides
best
treat
the hear-
J.)
(Calabresi,
(concurring in
denial
re-
ings
separate
separate
as
bench trials on
banc)
hearing en
(agreeing that mixed-
issues,”
to
findings
review the
analysis
motive
should have been used but
“clear error.” Id. at [92]. This course of
for parties’ failure to present argument to
consequences
ensuing
action
for the
has
original
court or
appellate panel).
discussion as the difference between re-
Ricci,
Significantly,
Supreme
light
most favorable to the
view
non-
Court neither mentioned nor used McDon-
and clear
sig-
movant
error review can be
Douglas analysis
nell
holding
plain-
nificant:
the former standard favors the
tiffs were entitled
summary judgment
to
loser; the
latter favors
winner. There
on their claim of discriminatory treatment.
is no need to resolve this review standard
DeStefano,
See Ricci v.
S.Ct.
2681.
to reach a remand decision in this case.
Rather, after observing
that the
de-
Indeed,
good
there is
reason
not
do so.
against
fended
by pro-
treatment claim
remand,
On
the factual record
change
fessing a purpose to avoid disparate-im-
parties
as the
seek
better
address Ric-
pact liability,
see id. at
the Court
requirements. Moreover,
ci’s
the district
proceeded to consider the three factors
what,
clarify
any,
court can then
“fact-
disparate-impact claim,
relevant to a
see
finding” informs a new final judgment.
§ 2000e-2(k)(l)(A),
U.S.C.
and concluded
Second,
majority
concludes
that defendants lacked a strong basis in
disparate-
Brennan Intervenors’ claim of
evidence to think that
would have
treatment discrimination
properly
is
re-
subjected
been
liability
such
had they
according
three-step
viewed
analyt-
failed to
challenged
take the
race-con-
scious,
ical framework outlined in
discriminatory
McDonnell
actions. See Ricci
Green,
Douglas
DeStefano,
Corp. v.
v.
U.S.
143
Ricci,
here,
any “analysis begins,”
analysis.
in
not
Douglas
In-
as
step of McDonnell
deed,
step,
At that
a
Douglas,
awkward.
with McDonnell
but “with this
the fit is
a nondis-
only articulate
need
premise:
defendant
actions would vio-
[defendants’]
actions, not
criminatory
for his
purpose
prohibition of
disparate-treatment
late the
intentional discrimina-
that
demonstrate
Title
valid
Id.
VII absent some
defense.”
a
with a
supported by valid defense
tion is
added). Thus,
(emphasis
in
at 2673
order-
evidence,
requires.
as Ricci
strong basis in
remand,
can
it to
ing
we
leave
the able
130,
Coll., 521 F.3d
v. Iona
Holcomb
See
in
judge
to decide
the first instance
(2d Cir.2008)
that
(explaining
is
“[i]t
141
strong
whether
have the
basis
defendants
task,
stage
our
at
second
necessary
pursue
in
to
a defense
evidence
framework,
...
to de-
Douglas
McDonnell
liability.
See id. at
disparate-impact
explana-
the [defendant’s]
termine whether
2677.3
convincing”
its
but rather
tion of
action
Third,
in
majority engages
has intro-
an exten-
only to “ask whether defendant
true,
that, ‘taken as
would
prece-
evidence
sive discussion
affirmative-action
duced
a
the conclusion that
there was
permit
strongly suggests
plans
dent and
that such
reason’”)
(quoting
nondiscriminatory
St.
by
judged
would continue to be
reference
Hicks,
502,
U.S.
Mary’s Honor Ctr. v.
509
from
v.
standards derived
Johnson
(1993)
2742,125
509,113
L.Ed.2d
Transportation Agency, Santa Clara
Hicks)).
(emphasis
107 S.Ct.
County, 480 U.S.
(1987),
L.Ed.2d 615
and United Steelwork-
require
does our decision to remand
Nor
Weber,
v.
whether,
ers America
despite
strong
U.S.
us now to decide
evidence,
(1979),
a defendant’s claimed S.Ct.
party, summary We judgment. survive can cases however, to question, not decide that need Therefore, we in this case. order remand can be not “hold” Ricci also need per- than on evidence less satisfied In- finding trial. at preponderance mit a In re SEPTEMBER PROPERTY remand, may deed, the district court on DAMAGE LITIGATION. lia- disparate-impact for the support find Properties LLC; 1 Trade Center World or as compelling so deficient bility defense LLC; Trade 2 World World Center require precise definition not to LLC; 3 World Trade Trade Center was, all, the proof. That after standard LLC; 4 World Trade Center Center in Ricci. circumstance L.P., LLC; Company, Trade World also majority discusses Fifth, Intervenors-Appellants, challenges various detail some v. might raise to defen- Brennan Intervenors disparate-impact-liability defense. dants’ Lloyd’s Lon- Certain Underwriters unnecessary to Again, discussion Comprising Syndicates No. don Further, it is decision to remand. our 1003, 2003, 1208, 1243, 0376; Great now rule that chal- certain premature (UK), PLC; Lakes Reinsurance Un- in this not the defense lenges could defeat Lloyd’s, Syndicate derwriter No. case, imply that certain evidence 1225; Part- Munich-American Risk matters are best de- inadmissible. These GmbH; ners 7244 Greater New York cided in the first instance Company; Insurance Insur- Mutual challenges be resolved court. Certain York; Company ance of Greater New remand, as a matter of law or whether Company Munich Reinsurance UK fact, even ways that will narrow Branch; Ru- Muenchener General appellate the need further eliminate eckversicherunes-Gesellschaft; Wo- review. Insurance, Ltd.; Lakes burn Great PLC; outset, Al- Reinsurance American at the these con- U.K. As indicated Corporation; The ternative Insurance are illustrative and exhaustive. cerns Nevertheless, Surplus why I Lines In- explain Princeton Excess & suffice Company; Munich Reinsur- join in the Court’s decision to affirm surance formerly America, Inc., part ance known and to vacate and remand part Company; majority opin- American Re-Insurance joining also without (1) Re, formerly Rather, known as AXA simply I would conclude Colisee ion. judgment can be Re and successor interests the district court (a) Reassurance; liabilities of Coli- granted as it class SPS affirmed insofar formerly Intervenors, Branch, see Re Canadian to the Brennan certification (b) Branch known as AXA Re Canadian Dellaporte declared Ciro formerly Corpo- as AXA known of a class entitled protected member settlement, So- rate challenged under relief