In a victory for Black firefighter Michael Briscoe, a U.S. appeals court reinstated his lawsuit against New Haven, Connecticut, in which he claimed he was unfairly denied a promotion because of a discriminatory exam administered by the city.
The opinion, written by chief Judge Dennis Jacobs of the 2nd U.S. Circuit Court of Appeals in New York, said that Briscoe was not precluded from suing New Haven despite an earlier ruling by the U.S. Supreme Court that found the exam results to be fair.
Briscoe’s case stems from 2003 when a group of white firefighters and one Hispanic firefighter sued New Haven to force the city to uphold the results of a promotion exam administration where no Black firefighters passed. The city originally sought to throw out the exam results on the basis that the Black firefighters were at an unfair disadvantage.
In 2009, the Supreme Court reviewed the white firefighter’s case and ruled that according to Title VII of the 1964 U.S. Civil Rights Act, New Haven had not sufficiently shown that keeping the test results would have made the city subject to disparate-impact liability. Title VII prohibits discrimination by employers on the basis of race, color, religion, sex or national origin and a violation may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class as compared with non-members of the protected class.
On Monday, Jacobs said that the Supreme Court ruling did not preclude Briscoe from suing the city under Title VII.
"I think the opinion is essential to maintaining the vitality of the disparate impact theory of liability under Title VII," Briscoe's attorney, David Rosen, said.
Title VII, Rosen said, protects "against the arbitrary use of selection devices that continue to be barriers to employment for well-qualified workers across America who happen not to be good at the particular pencil and paper, multiple choice-format quiz that some employers still insist on using."
Briscoe’s case is just one of many from Black firefighters across the country that claim fire departments engage in discriminatory practices in hiring, promoting and retaining minority firefighters.
Many Black firefighters argue that testing-based promotions used by fire departments are discriminatory because Blacks are historically disadvantaged from performing well on the written portion of the exams given the lack of legacy in the Black community. African-Americans were not allowed to join the profession until the 1970s. Briscoe claims that under a 30 percent written, 70 percent oral test he would have been promotable.