Second Circuit Rejects New Haven’s Post-Ricci Argument that Justice Kennedy’s One Sentence of Dicta Established a Symmetrical Companion, that is, an Employer May Defeat a Disparate-Impact Claim if it had a “Strong Basis in Evidence” that it Would Have Been Subject to Disparate-Treatment Liability

On August 15, 2011, a panel of the Second Circuit in Briscoe v. City of New Haven, 2011 U.S. App. LEXIS 16834 (2d Cir. Aug. 15, 2011), rejected the City’s argument that Justice Kennedy’s language in Ricci v. DeStefano, 129 S. Ct. 2658, 174 L. Ed. 490 (2009) established a symmetrical companion to Ricci’s holding that a disparate-treatment claim is avoidable based upon concerns about disparate-impact liability only if there was a “strong basis in evidence” of such liability.  Ricci, 129 S. Ct. at 2677.  The City had seized upon the following sentence in Justice Kennedy’s opinion:

Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and the disparate-impact provisions.  If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the city would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.  Ricci, 129 S. Ct. at 2681.

Relying on that sentence, the City argued in Briscoe, that Ricci’s “strong basis in evidence” test for a disparate-treatment claim applies equally to a disparate-impact claim.  As stated, the panel rejected the argument.  The Briscoe opinion was written by Chief Judge Jacobs, who, interestingly, was among the dissenters from the Second Circuit’s denial of rehearing in Ricci.  503 F.3d 88 (2d Cir. June 12, 2008).  It was that strong dissent that many believe captured the Supreme Court’s attention, resulting in the grant of certiorari, and ultimately the reversal of the Second Circuit and District Judge Arterton.  

            Presumably, yet another petition for rehearing will be filed, now in Briscoe, and it remains uncertain whether the full Court will adopt the Briscoe panel’s decision.  Earlier this year, another panel of the Second Circuit, in United States v. Brennan, 2011 U.S. App. LEXIS 9455 (2d Cir. May 5, 2011) held that they need not consider Justice Kennedy’s dicta and the potential contours of the doctrine.  Circuit Judge Raggi concurred, but cautioned that “majority opinion…yields an abundance of dicta that could confuse future consideration of judgments actually based on Ricci.”  Id. at *218-19.  Indeed, the panel in Briscoe, citing Judge Raggi’s concurrence, noted that they had “no need to consider, much less invite adherences to, the extended dicta as to the potential contours of the doctrine for a disparate-treatment claim offered in [United States v. Brennan].”  Briscoe, 2011 U.S. App. LEXIS 16384 at *13 n.6 citing Brennan, 2011 U.S. App. LEXIS 9455 at *123-137, *168-88 (2d Cir. May 4, 2011); Id. at *218-19 (Raggi, J. concurring in the judgment).

            On September 20, 2011, the Third Circuit will hear oral argument on another case implicating the “reverse Ricci” defense, NAACP v. North Hudson Regional Fire & Rescue, 742 F. Supp. 2d 501 (D.N.J. Sept. 21, 2010) appeal docketed Nos. 10-3965, 10-3983 (3d Cir. 2011).  In North Hudson, NAACP argues that the Third Circuit should adopt the reasoning of the Briscoe panel, and affirm the lower court opinion of Judge Debevoise.  The North Hudson litigation focuses on that jurisdiction’s residency requirement for initial employment in its paid fire department.  In North Hudson, the district court found that, when one combined the population of North Hudson with three neighboring counties, there was a statistically significant adverse impact that could not be justified under the statutory business necessity test.  The City argued that North Hudson is a “reverse Ricci” case, that is, it should be permitted to defend against the NAACP’s adverse-impact claim by contending that there is a “strong basis in evidence” of disparate treatment liability if it eliminated the residency requirement.  The expert testimony seemingly established that elimination of the residency requirement would significantly reduce the representation of Hispanics in North Hudson’s fire department and, while increasing the representation of African Americans, it would also significantly increase the representation of Caucasians.  The NAACP has argued on appeal that Briscoe governs, contending, in part, that the language of Title VII precludes the adoption of a symmetrical companion to Ricci in defense of a disparate-impact claim.