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Ricci Redux? Second Circuit Revives Firefighter's Claim

By Robyn Hagan Cain on August 19, 2011 | Last updated on March 21, 2019

Will New Haven firefighters have another day in the Supreme Court?

This week, the Second Circuit Court of Appeals revived New Haven firefighter Michael Briscoe's claim challenging the same exam that the Supreme Court mulled in Ricci v. DeStefano. A district court had previously ruled that Briscoe's claim was barred by the Ricci holding.

The Nine ruled in 2009 that white New Haven firefighters were unfairly denied promotions because of their race after the city invalidated the results of a promotions exam that none of New Haven's African-American firefighters passed.

At the time, many legal commentators thought the Court came to the wrong conclusion.

The New Haven firefighters' promotion exam is offered once every two years. In 2003, 118 applicants took the exam to qualify for promotions to the lieutenant or captain rank, 27 of whom were African-American. None of the African-American employees scored high enough to qualify for the 15 available promotions, reports The Christian Science Monitor.

In Ricci, the Court concluded "that race-based action like [New Haven's] in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute."

Three months after the Supreme Court decided Ricci, Michael Briscoe, one of the African-American New Haven firefighters who sat for the controversial exam, challenged New Haven's promotion process again, alleging that the weighting of the written and oral sections of the test - 60% and 40%, respectively, as dictated by the collective bargaining agreement between the city and the firefighters' union - was arbitrary and unrelated to job requirements.

Briscoe had the highest score on the oral exam, but ranked 24th overall after the written exam was factored in, according to Above the Law. Briscoe asserts that the industry norm for such weighting is 30% written/70% oral; under that scoring, he was promotable.

The Second Circuit remanded the case for hearing, so there's no immediate path back to high court for now. Should Michael Briscoe push his claim to the ultimate end, he is likely to meet a more sympathetic bench now that Justice Sotomayor, who authored the Second Circuit Court of Appeals opinion rejecting the white firefighters' claim in Ricci v. DeStefano, has ascended to the high court.

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