Black Fireman Can Sue New Haven Over Exam

     MANHATTAN (CN) – The 2nd Circuit revived a black firefighter’s claims against the city of New Haven, Conn., for allegedly using discriminatory tests, which have been a source of controversy among firefighters of all ethnicities since 2003.
     Precedent for the case is rooted in Ricci v. DeStefano, a 2004 lawsuit in which 18 firefighters, 17 white and one Latino, claimed that New Haven did not certify tests that would have led to their promotions.
     Ultimately the Supreme Court found that New Haven had violated the civil rights of white firefighters by tossing the results of a promotion exam on the basis that no blacks and only one Hispanic passed.
     “We conclude there is no strong basis in evidence to establish that the test was deficient,” Associate Justice Anthony Kennedy wrote for the five-justice majority.
     The dissenting justices predicted that the opinion and order “will not have staying power.” New Haven and the Ricci plaintiffs reportedly settled for $2 million last month.
     “By order of this court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served – as it was in the days of undisguised discrimination – by a fire department in which members of racial and ethnic minorities are rarely seen in command positions,” Justice Ruth Bader Ginsburg wrote for the dissent.
     In 2009, black firefighter Michael Briscoe sued New Haven for disparate-impact liability, the type of lawsuit that the city had anticipated and hoped to avoid by tossing the original results.
     A federal judge ruled that Briscoe’s lawsuit was barred by the Ricci holding.
     On Monday, a unanimous three-judge panel for 2nd Circuit disagreed.
     “We are sympathetic to the effect that this outcome has on the city, which has duly certified the test as ordered by the Supreme Court but now must defend a disparate-impact suit,” Chief Judge Dennis Jacobs wrote for a three-judge panel.
     But the Supreme Court’s opinion did not preclude Briscoe’s lawsuit, he added.
     “Ricci did not substantially change Title VII disparate impact litigation or preclusion principles in the single sentence of dicta targeted at the parties in this action,” the 26-page decision states.
     Last year, the Supreme Court revived a similar case filed by a black firefighter against Chicago.

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