Important Disparate-Impact Decision in the Second Circuit

• July 31, 2012 • 11:18 am

A recent decision by the Second Circuit, M.O.C.H.A. Society, Inc. v. City of Buffalo, upheld the City of Buffalo’s examination for firefighter lieutenants against a disparate-impact challenge brought under Title VII of the 1964 Civil Rights Act.  The opinion was written by Judge Raggi and joined by Judge Walker, with Judge Kearse dissenting.  The conclusion does a good job of describing the scope of the opinion, so I’ll just quote it:

  1. On plaintiffs’ disparate impact challenge to the 1998 examination, the district court did not clearly err in finding that, despite the lack of direct evidence pertaining to the Buffalo Fire Department, Buffalo carried its burden to demonstrate the examination’s job relatedness by showing that the test derived from a valid statewide job analysis indicating that fire lieutenants across New York performed the same critical tasks and required the same critical skills.
  2.  On plaintiffs’ disparate impact challenge to the 1998 examination, the district court did not clearly err in finding that the Civil Service Department exercised reasonable competence in designing the examination, and that the examination was both content related and representative.
  3. On plaintiffs’ disparate treatment challenge to the 1998 examination, the district court correctly concluded that plaintiffs could not re-litigate questions of job relatedness and business necessity decided against them at the bench trial of their disparate impact claim, and the [plaintiffs] had not established a genuine issue of material fact that Buffalo intentionally discriminated against African Americans by using the 1998 test results.
  4. On plaintiffs’ Title VII challenge to the 2002 examination, the district court correctly relied on collateral estoppel to grant summary judgment in favor of Buffalo because the only matters in dispute had been resolved against plaintiffs in the earlier challenge to the 1998 examination, and there was sufficient identity between the plaintiffs in both actions.

Note that there appeared to be little question, on the one hand, that the examination had a disparate impact; nor, on the other hand, did the plaintiffs try to show that there was an alternative selection procedure with less disparate impact. Thus, the focus in the opinion was simply on whether the city carried its affirmative rebuttal burden of showing that the test was “job related for the position in question and consistent with business necessity” (to quote Title VII).  The majority held that city did so, finding the examination to be “content related.”

A principal point of contention in the case (and the main focus of the dissent) was whether the examination was sufficiently customized for this particular city.  The majority opinion said that the city’s “minimal participation in the Civil Service Department’s three-year statewide job analysis of firefighter positions is perplexing. So too is Buffalo’s strategic decision to defend against a disparate impact claim without calling either an expert or fact witness to link the lieutenant position within the Buffalo Fire Department to the Civil Service Department’s job analysis of that position statewide.”  But it deferred to the district court and the Civil Service Department in finding that the statewide approach was reasonable.

This seems to me to be a significant decision.  There is a built-in tension between the disparate-impact approach and the usual principal of colorblind nondiscrimination in civil-rights law (indeed, as Justice Scalia noted in his Ricci v. DeStefano concurrence a few years ago, it calls into question the approach’s constitutionality), and that tension is exacerbated to the extent that plaintiffs’ prima facie showing of a statistical racial imbalance is all that is needed in order to win a Title VII case.  Conversely, to the extent that defendants can rebut the prima facie case by simply showing nondiscriminatory and legitimate reasons for a selection device, the more disparate-impact cases come to resemble disparate-treatment cases, and the less objectionable they are.

For more on the problems with the disparate-impact approach, see my (somewhat dated but still useful, I hope) monograph “Disparate Impact in the Private Sector: A Theory Going Haywire.”

UPDATE: Mike Rosman of the Center for Individual Rights liked my post, which is very gratifying since he knows more about the law in this area than I do. He says that he would have added the words “that the defendant had refused to adopt” after “alternative selection procedure with less disparate impact” — noting, quite correctly, that even if the courts sometimes do not remember what the statute says, we should. Mike also makes the good point that the importance of this case may be diminished somewhat by the findings of the lower court and the deferential standard of review (as the majority opinion noted, it likely would have affirmed a trial court decision going the other way).

Comments

  • Thomas Gill says:

    I am the attorney who represented MOCHA in the Second Circuit. Prior to this case, no court or competent professional has said that an employer can prepare a job analysis using data from several other employers instead of data from its own employees. The Second Circuit panel said a fact finder could reach this conclusion by substitute inductive reasoning for a finding of “professional methods”. Prior to this “professional methods” were required by Albemarle Paper Co. v Moody, 422 U.S. 405, 95 S. Ct. 2562 (1975) (discriminatory tests are impermissible unless shown, by professionally acceptable methods, to be ‘predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.”).

    If the inductive reasoning rule from this case were on the SAT, it would read as follows:
    • Most Fire Lieutenants in smaller cities A, B, C, D, and E say that they carry a fire ax.
    • Fire Lieutenants in large city F provided no meaningful information on fire ax carrying.
    • Therefore most large city F Fire Lieutenants carry a fire ax, TRUE OR FALSE?
    The Panel found this formulation was true. If this approach were widely used, it would end employment test cases. Malpractice cases, product liability cases, and employment test cases have all been based on failure to meet a professional standard of care. The panel has removed any professional standard of care from this case and substituted a plausible explanation standard.