CALABRESI, Circuit Judge:
Table of Contents
Introduction ..................................................................... 70
Factual and Procedural Background ................................................ 72
I. The Parties ........................................................... 72
II. General Factual Background ............................................ 73
A. Custodians and Custodian Engineers ................................. 73
B. The Importance of Seniority ........................................ 73
1. Transfers ....................................................... 74
2. Temporary Care Assignments ...................................... 75
3. Layoffs ......................................................... 76
C. The Hiring Process ................................................. 76
D. Provisional Employees .............................................. 77
III. The Government's Investigation and Lawsuit ............................ 77
IV. The Settlement ........................................................ 78
A. Settlement Terms ................................................... 78
B. Court Approval ..................................................... 79
V. The Settlement Is Implemented ......................................... 80
VI. The Second Circuit Vacates and Remands ................................ 80
VII. Proceedings on Remand ................................................. 81
A. The Brennan Plaintiffs Intervene and File a Related Complaint ...... 81
B. The Government Changes Its Position; Offeree Interventions
Result ............................................................ 82
VIII. The District Court's Opinions ......................................... 83
A. The September 11, 2006 Opinion ..................................... 83
B. The April 20, 2007 Opinion ......................................... 86
C. The May 28, 2008 Opinion ........................................... 87
IX. The Miranda Lawsuit ................................................... 89
X. The Stay Applications ................................................. 89
Discussion ....................................................................... 89
I. Title VII Background .................................................. 89
II. Procedural Posture and Standard of Review .............................. 91
III. Prima Facie Case and Defenses ...........,.............................. 92
IV. Affirmative Action ..................................................... 96 A. Legal Background .................................................... 96 B. Application of Johnson and Weber to the Settlement Agreement ........ 97 1. Ricci ............................................................ 97 2. Is the Implementation of the Settlement Agreement an Affirmative Action Plan? ...................................... 99 a. What Is an Affirmative Action Plan? ........................... 99 b. The Employer Action in This Case .............................. 104 V. Strong Basis in Evidence ............................................... 109 A. What Is a Strong Basis in Evidence? ................................. 110 1. Strong Basis in Evidence of Liability ............................ 110 2. Strong Basis in Evidence of Necessity ............................ 113 B. The Government's "Actual Violation" Standard ........................ 114 1. Ricci Does Not Require a Showing of Actual Liability or Actual Victims ........................................................ 115 2. The Consent-Decree, Settlement-Approval, and § 706(g) Cases Do Not Apply in the § 703(a) Context ..................... 116 3. The Brennan Plaintiffs Have Another Remedy for Any Breach of Contract by the City Defendants ............................. 120 VI. Application of the Strong-Basis-in-Evidence Standard ................... 124 A. Prima Facie Case .................................................... 125 1. Testing Discrimination ........................................... 125 2. Recruiting Discrimination ........................................ 125 B. Job-Related and Less Discriminatory Alternative ..................... 127 C. Necessity and Make-Whole Relief ..................................... 128 VII. Equal Protection ....................................................... 134 VIII. Class Certification .................................................... 136 IX. Remedies ............................................................... 137 X. Conclusion ............................................................. 140
In 1996, the United States (the "Government") sued the New York City Board of Education and related parties (the "City Defendants") claiming a violation of Title VII's prohibition of disparate impact selection measures. The suit alleged that the City had, in hiring Custodians and Custodian Engineers ("CEs") for its schools, (1) used, on three separate occasions, civil service examinations which discriminated against blacks and Hispanics, and (2) used recruiting practices which discriminated against blacks, Hispanics, Asians, and women. The parties entered into a settlement agreement in 1999 and asked the district court to enter it as a consent decree. The magistrate judge (Levy, M.J.)—who had jurisdiction by consent— approved the entire agreement, despite objections that primarily came from incumbent employees who were denied leave to intervene in the suit. The incumbent employees were unaffected by many of the agreement's provisions, but they objected to four paragraphs that provided permanent appointments and retroactive competitive seniority to 63 black, Hispanic, Asian, or female individuals, the "Offerees."
After the remand, the incumbent employees asked the district court to have the case sent to a district judge rather than the magistrate judge; this request was granted. They then brought two reverse-discrimination lawsuits against the City under § 703(a) of Title VII and the Equal Protection Clause (via 42 U.S.C. § 1983); these cases were consolidated with the original 1996 Government lawsuit. The new lawsuits sought equitable relief and damages. The incumbent employees also requested class certification. Meanwhile, the Government decided that it would defend the settlement agreement only in part. This prompted two groups of beneficiaries of the settlement to intervene to defend the retroactive seniority that the settlement had granted them. One group, the Arroyo Intervenors, consisted of ten Offerees who had taken and failed a challenged exam; the other group, the Caldero Intervenors, consisted of twenty-two Offerees who had not taken any challenged exam.
After years of contentious litigation, extensive discovery, and a set of three opinions spanning a total of approximately 150 pages, the district court (Block, J.) entered a final judgment. It held that some of the retroactive seniority provided by the settlement agreement violated Title VII, and that some of the retroactive seniority that did not violate Title VII violated the Equal Protection Clause. But, the court concluded that a significant remainder of the retroactive seniority was lawful. In particular, the court held (1) that the retroactive seniority of the test-failer Offerees
On appeal, the district court's refusal to enter a consent decree is not challenged. The only disputes before us are the incumbent employees' lawsuits, which claim that the City Defendants' (voluntary) implementation of the settlement agreement violated § 703(a) of Title VII and 42 U.S.C. § 1983. The Title VII claim requires us to decide the applicability of Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 174
The district court's Title VII analysis was based on the "affirmative action" framework of Johnson v. Transp. Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and United Steelworkers of Am. v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). We hold that, contrary to the pre-Ricci law in this Circuit, Johnson and Weber do not apply to all race- or gender-conscious employer actions. In light of Ricci, the "manifest imbalance" and "no unnecessary trammeling" analysis of those cases extends, at most, to circumstances in which an employer has undertaken a race- or gender-conscious affirmative action plan designed to benefit all members of a racial or gender class in a forward-looking manner only. Where, as here, the employer instead provides individualized race- or gender-conscious benefits as a remedy for previous disparate impact, the employer must satisfy the requirements of Ricci, not Johnson and Weber, in order to avoid disparate-treatment liability. Under Ricci, the employer must show a strong basis in evidence that, at the time the race- or gender-conscious action was taken, the employer was faced with disparate-impact liability and that the race- or gender-conscious action was necessary to avoid or remedy that liability.
In addition to our central holding, we address several other issues. We discuss a few matters related to the identification of those individuals who, the City Defendants had a strong basis in evidence to believe, were victims of disparate impact and, therefore, as to whom the retroactive-seniority provided in the settlement agreement was a proper remedy. We also discuss what remedies the district court might properly consider, and we advise the district court that while it may be appropriate to strip certain settlement beneficiaries of the retroactive seniority they received from the settlement agreement, it is not correct to strip them of seniority stemming from their permanent appointments. Because it is possible that the case can be resolved on Title VII grounds, we decline at this time to address the important and difficult Equal Protection Clause questions that attach to the case. Finally, we affirm the district court's grant of class certification because, in so certifying, the district court did not abuse its discretion.
Accordingly, we AFFIRM the district court's judgment in part, VACATE it in part, and REMAND the case for further proceedings consistent with this opinion.
This appeal stems from three lawsuits involving five parties or groups of parties, who, from different directions, attack just about every aspect of the district court's judgment. The incumbent employees (the "Brennan Plaintiffs")
The focus of the Government's 1996 lawsuit was the allegedly discriminatory hiring of Custodians and Custodian Engineers by the City Defendants.
The Board of Education
Custodians and CEs are paid through a century-old, arcane, and idiosyncratic system known as the "indirect system." See generally Beck v. Bd. of Educ. of City of New York, 268 A.D. 644, 646-47, 52 N.Y.S.2d 712 (N.Y.A.D.2d Dep't 1945). Under this system, the Custodian or CE is both a civil servant and an independent contractor. The Board allots each Custodian a lump sum of money based on the size and other characteristics of the assigned school. The Custodian uses some of this money to hire cleaners and helpers and to pay for supplies, and, up to a specified limit, he retains the rest for himself. The Board does not tell Custodians how to clean and maintain things or whom to hire; it only tells them whether the school is being cleaned and maintained satisfactorily. Custodians and CEs thus, purportedly, have an incentive to maintain their schools adequately but in a cost-effective manner. Id.
The seniority of a Custodian or CE is important in several ways, only three of which are relevant to the appeal before us: seniority improves a Custodian or CE's ability (1) to get transfers to more desirable schools; (2) to get Temporary Care Assignments ("TCAs")
Because Custodians and CEs earn higher salaries when they work in larger schools, it is desirable, when the opportunity arises, for them to transfer to larger schools. When there is a vacancy at a school, seniority plays a crucial role in determining who gets the transfer.
Every few months or so, as needed, the Board issues a Vacancy List to Custodians and CEs. The Vacancy List sets out the schools with a Custodian or CE vacancy, and any Custodian or CE who is eligible to transfer may bid for open schools and specify his or her order of preference.
Seniority also affects Temporary Care Assignments—though only slightly. When a temporary school vacancy results from illness, vacation, or leave, the Board fills the vacancy through the TCA process. Unlike the transfer process, the TCA process is not found in the collective bargaining agreement. The record conflicts as to whether the TCA process is governed by any contract negotiated with Local 891.
The process for assigning TCAs is somewhat different from the transfer process, but seniority still plays a role. The record is, however, unclear as to how significant that role is. Once a Custodian or CE has at least one year of experience, he or she is added to the TCA waitlist for the district in which his or her regularly assigned school is located, or for adjacent districts.
Because of the rotation system, seniority seems to play only a relatively minor role in the awarding of TCAs. The district court does, however, suggest a way in which seniority might make a difference. According to that court, there are three separate TCA lists in each district: one for CEs, one for Custodians with at least 15 years' seniority, and one for other Custodians. United States v. N.Y. City Bd. of Educ., 448 F.Supp.2d 397, 411-12 (E.D.N.Y.2006) [hereinafter NYC Board III]. None of the parties' briefs mentions three lists, nor do these briefs cite any part of the record supporting this proposition. But, if the district court's statement is correct, then increasing a Custodian's
Seniority directly determines the order in which Custodians or CEs will be laid off under N.Y. Civ. Serv. Law § 80(1). The statute and the CBA provide for a typical "last hired, first fired" system.
During the disputed period, the hiring process included four steps for Custodians and three steps for CEs. First, because a Custodian or CE is a civil servant within the "competitive class" as defined under New York law, an applicant wishing to become a Custodian or CE had to pass a civil service examination.
Second, an applicant had to submit "experience papers" explaining how the applicant satisfied the minimum qualifications for the position. The minimum qualifications—a few years of relevant experience for a Custodian, and a few more years plus the coveted high-pressure boiler license (also known as a "stationary engineer license") for a CE—were stated in the notice for each of the aforementioned, disputed, exams. Once the exam was administered, the City Defendants reviewed the experience papers for passing applicants. A finding of insufficient experience could be administratively appealed. The exact proportion of appeals that overturned the City Defendants' original findings is unclear and disputed, but the proportion of successful appeals clearly was not insignificant.
Third, for Exams 5040 and 1074 (the Custodian exams), but not for Exam 8206 (the CE exam), a practical test was required.
After these steps were completed, applicants who had passed the written exam, the "experience papers" stage, and the practical exam (if applicable), were placed on an "eligible list," starting with the highest scorers on the written exam and ending with the lowest passing scorers. When the Board needed a Custodian or CE, it would follow the "Rule of Three." Under this rule, it would call the top few people (usually three, but sometimes more if there were more than one vacancy) on the eligibility list for interviews. See N.Y. Civ. Serv. Law § 61(1). The vacancy or vacancies would then be filled by whichever ones of the interviewees were selected by the interviewers. Applicants who were interviewed three times without being hired would be removed from the eligibility list. The Board hired Custodians from the Exam 5040 eligibility list from Spring 1987 through Fall 1990. The Exam 8206 eligibility list was used to hire CEs from Spring 1991 through early 1994, and the Exam 1074 eligibility list was used for Custodians from early 1997 through early 2000.
In addition to the permanent Custodians and CEs, who had to go through the above described process and who had competitive seniority and civil-service protections, the City Defendants hired "provisional" Custodians and CEs. Provisional Custodians and CEs can be fired at any time, do not accrue competitive or non-competitive seniority, cannot bid for transfers to other schools, cannot obtain TCAs, and have to work wherever the Board puts them. It is therefore much better to be a permanent Custodian or CE than to be a provisional one. But provisional Custodians and CEs have the same responsibilities at the schools to which they are assigned as their permanent counterparts. And they are supposed to have the same experience and, in the case of provisional CEs, the boiler license as well. Provisional Custodians and CEs are hired when the Board needs Custodians and CEs but there is no appropriate eligibility list from which to hire permanent employees. See N.Y. Civ. Serv. Law § 65.
The U.S. Department of Justice began to investigate possible discrimination in the hiring of permanent Custodians and CEs in the early 1990s. A 1993 demographic survey revealed that more than 99% of the permanent Custodian and CE workforce was male, and 92% was white. In contrast, blacks constituted about 20% of the qualified labor pool for these positions, Hispanics made up about 19% and women about 8% of the pool. A 1996
Based on a statistical analysis of the results of the investigation, the Government sued the City Defendants on January 30, 1996. The Government originally made both pattern-and-practice claims (which require proof of intentional discrimination) and disparate-impact claims. But it ultimately pursued only the disparate-impact claims. Two sets of these were asserted.
In the first, the Government alleged that some of the tests employed brought about discriminatory results. Specifically, the claim was that Exams 5040, 8206 and 1074 had a disparate impact on blacks and Hispanics. This allegation was based on a report from two statisticians, who concluded that the statistical significance of the disparities in passage rates between white, black, and Hispanic takers of those three exams
The second set of claims, the recruiting claims, alleged that the City Defendants' recruiting practices had a disparate impact on blacks, Hispanics, Asians, and women. In support of these claims, the Government produced a report by Dr. Orley Ashenfelter, a labor economist. The report said that the number of blacks, Hispanics, Asians, and women who took each of the three disputed exams was lower than the number that would be expected based on the representation of qualified individuals in the overall labor pool. Dr. Ashenfelter found that the differences were statistically significant at the 5% level, and for some groups the probability that the differences were the result of chance was much lower. Although Dr. Ashenfelter did not offer any opinion as to the cause for these disparities, the Government asserted that they resulted from limited advertising and word-of-mouth referrals that had a disparate impact on women and minorities.
By 1999, extensive discovery had been conducted, but the Government had not moved for summary judgment and the case had not gone to trial. Before the Government had attempted to prove its case in court, the Government and the City Defendants entered into settlement negotiations, which concluded with the signing of a settlement agreement. Although much of the agreement did not give rise to any objections from third parties, four paragraphs, numbered 13-16, came under attack. Only those four paragraphs, and the consequences of their implementation, are at issue on this appeal.
Paragraph 13 provided that all "Offerees" who were serving as provisional Custodians
Paragraphs 14-16 gave the Offerees retroactive seniority in accordance with the following terms:
The agreement provided that the retroactive seniority dates would "apply for all purposes for which seniority is applied except any applicable probation requirement." Accordingly, in addition to the TCA, transfer, and layoff benefits that are in dispute, the seniority dates provided various non-competitive benefits, which are not at issue here.
After the Government and the City Defendants agreed to the settlement, it went to Magistrate Judge Levy—to whose jurisdiction, as mentioned earlier, the parties had consented pursuant to 28 U.S.C. § 636(c)—for a fairness hearing, because the parties sought to have the agreement entered as a consent decree. See United States v. N.Y. City Bd. of Educ., 85 F.Supp.2d 130, 135 (E.D.N.Y.2000) [hereinafter NYC Board I], vacated and remanded, Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123 (2d Cir.2001) [hereinafter NYC Board II]. The district court gave notice and opportunity to object. Cf. 42 U.S.C. § 2000e-2(n) (preventing subsequent challenges to employment practices implementing a consent judgment if notice and opportunity to object have been given). There were over 300 objections, about half of which were form letters. NYC Board I, 85 F.Supp.2d at 134 & n. 3.
The Magistrate Judge determined that the Government had made out a prima facie case of disparate impact for both the testing and recruiting claims. Id. at 141-45. Next, he determined that the settlement was fair and reasonable. He rejected the objections of Brennan et al., along with other objections not relevant here. In particular, he noted that the settlement "avoided the need for a complex, expensive, and lengthy trial," and that extensive discovery had already taken place. Id. at 146. He also said that the settlement was consistent with the objectives of Title VII; and that, although it was the Board and not Brennan, Ahearn, and Brunkhorst who bore the responsibility for the past discrimination the suit and agreement sought to correct, the effect of the Offerees' retroactive seniority on existing permanent Custodians and CEs was minimal. Id. at 146-51. Finally, the Magistrate Judge rejected the argument of Brennan et al. that they were entitled to intervene as of right pursuant to Federal Rule of Civil Procedure 24(a)(2). The court concluded that they did not have a protected interest in their seniority because (1) the remedies afforded the Offerees were "designed only to return employees to the positions they would have been in but for the alleged discrimination," NYC Board I, 85 F.Supp.2d at 155, and (2) the possibility that the Offerees' retroactive seniority would affect the would-be intervenors was too "remote and speculative" to constitute a cognizable interest, id. at 156. Accordingly, the Magistrate Judge approved the settlement and denied the motion to intervene. Id. at 157.
Shortly after the Magistrate Judge's approval of the settlement, the City Defendants began implementing the agreement. They notified 63 Offerees—the 54 individuals listed in Appendix A to the agreement, plus nine other individuals—that they were entitled to relief under the agreement, if they agreed to release all discrimination claims against the City Defendants. 59 Offerees took the settlement, three resigned, and one declined the settlement. These 59 Offerees received permanent status, retroactive seniority, or both.
For transfer and layoff purposes, the retroactive seniority operated as one would expect. The Offerees' retroactive seniority was effective for both the seniority-bracket stage and the tie-breaker stage of the transfer process. And if layoffs were ever to occur, Offerees would be treated for purposes of the last-hired, first-fired rule as having been hired on their retroactive seniority dates. For TCA purposes, however, it is unclear what happened to Offerees who got retroactive seniority. As the district court pointed out, the record is contradictory as to (1) whether Offerees who were already permanent employees immediately went to the top of the list or stayed where they were, and (2) whether Offerees who were not permanent employees, or who had been permanent employees for less than one year at the time they accepted the settlement, were put at the top or the bottom of the list upon completing their probationary periods. See NYC Board III, 448 F.Supp.2d at 412 & n. 22. It is, however, clear that, as provided in the settlement agreement, the Offerees had to wait out a one-year probationary period before they were added to the TCA lists.
Brennan, Ahearn and Brunkhorst appealed the Magistrate Judge's decision to
Id. at 133 (citation omitted).
After remand, this case lingered in the district court for about eight years, in the course of which several significant things happened: (1) the Brennan Plaintiffs filed two cases that were consolidated with the main case; (2) the Government began to attack parts of the settlement agreement; (3) the Caldero and Arroyo Intervenors entered the case in response to the Government' change of position; (4) additional discovery and hearings took place; and (5) the district court issued a set of decisions upholding most, but not all, of the settlement against the reverse-discrimination attacks brought by the Brennan Plaintiffs, but declining to approve the settlement as a consent decree.
In October 2001, on remand, the Brennan Plaintiffs,
Because of certain arguments raised in the Government's motion to dismiss, and because the Brennan Plaintiffs wanted to add two new individuals with damage claims (John Mitchell and Eric Schauer),
On April 8, 2002, the Government filed a memorandum in response to the Brennan Plaintiffs' February 2002 motion for a preliminary injunction. In this memorandum, the Government only partially opposed the motion. The Government opposed a preliminary injunction against the settlement as to Offerees who had taken a challenged exam, but not as to Offerees who had not. Two days later, the Government withdrew its previous counsel and substituted new counsel.
Next, the City Defendants moved for approval of the remaining paragraphs of the settlement agreement, and the Government opposed this motion as "premature." In July 2002, a recruiting-claim beneficiary, Janet Caldero, learned that the Government was no longer defending the settlement as to Offerees such as she. She and others in her situation, having obtained counsel, moved to intervene in October 2002. The parties agreed to the 22 Caldero Intervenors' intervention in February 2003. Around this time, the Brennan Plaintiffs also invoked their rights as parties to object to the magistrate judge's 28 U.S.C. § 636(c) jurisdiction 2 to render a final decision, and, as a result, the case was returned to Judge Block.
Then, in September 2003, the Government changed its position again, triggering yet another intervention. In response to some interrogatories during discovery, the Government provided a chart detailing its current thinking about which Offerees were entitled to retroactive competitive seniority. This chart indicated for the first time that, in addition to the 32 Offerees who had not taken an exam, as to most of whom the Government had already indicated that it would not be defending the settlement, the Government would now also not be defending the settlement as to some (but not all) Offerees who had taken a challenged exam. Although the Government did not say that this latter group of Offerees was not entitled to any retroactive seniority, it did say that, for competitive seniority purposes, these individuals were entitled only to retroactive seniority dates later—usually by about two years— than those provided for by the settlement agreement. The chart also denominated the Offerees who had not taken an exam as "recruiting claimants," and the others as "testing claimants." That is, the Government separated the Offerees into two groups, based on the stage of the hiring process at which they allegedly suffered discrimination. Having learned of this document, some of the affected Offerees (the Arroyo Intervenors) moved to intervene. Their motion was granted in July 2004.
After further discovery, the Brennan Plaintiffs and the Arroyo and Caldero Intervenors cross-moved for partial summary judgment. Additionally, the City Defendants moved to enter the settlement agreement as a consent decree, and the Brennan Plaintiffs moved for class certification. The district court issued its first of three opinions on September 11, 2006. See NYC Board III, 448 F.Supp.2d 397. Some issues of fact remained, however. After a hearing on those facts, the district court issued its second opinion on April 20, 2007. See United States v. N.Y. City Bd. of Educ., 487 F.Supp.2d 220 (E.D.N.Y.2007) [hereinafter NYC Board IV]. After another hearing dealing with still remaining fact questions, the district court issued its third opinion on May 28, 2008. See United States v. N.Y. City Bd. of Educ., 556 F.Supp.2d 202 (E.D.N.Y.2008) [hereinafter NYC Board V]. Final judgment was, at long last, entered on August 18, 2008.
In its 2006 opinion, the district court considered first whether the settlement awards violated Title VII, and then whether they violated the Equal Protection Clause. The court concluded:
NYC Board III, 448 F.Supp.2d at 446-47.
The court's reasoning was as follows. First, it addressed a preliminary issue: whether the Brennan Plaintiffs were correct in their assertion that five supposedly Hispanic Offerees were not entitled to any relief because they were not in fact Hispanic. Relying on the EEOC's definition of "national-origin discrimination" in 29 C.F.R. § 1606.1, the district court held that "an ancestral place of origin is sufficient to establish membership in a protected class." NYC Board III, 448 F.Supp.2d at 422. Applying that definition, the district court held that one recruiting claimant, Ciro Dellaporte, was not Hispanic. Id. The other four—Kevin LaFaye, Steven Lopez, and the brothers Nicholas Pantelides and Anthony Pantelides, were Hispanic "because LaFaye's father and the Pantelides' mother were born in Puerto Rico, and Lopez's grandfather was born in Mexico." Id.
Next, the district court sought to determine whether the retroactive seniority awards violated the Brennan Plaintiffs' rights under Title VII. The district court relied heavily on the "affirmative action" framework of Johnson, 480 U.S. 616, 107 S.Ct. 1442, and Weber, 443 U.S. 193, 99 S.Ct. 2721, consistent with which an employer defending an affirmative-action plan against a Title VII reverse-discrimination challenge needs to show only that (1) there is a "manifest imbalance" in a traditionally segregated job category and (2) the plan does not "unnecessarily trammel" the interests of adversely affected third parties. NYC Board III, 448 F.Supp.2d at 423-24. The district court rejected the Brennan Plaintiffs' argument that the Weber/Johnson framework did not apply. Id. at 428-31. According to the district court, "there is nothing in Title VII that vitiates an affirmative-action plan granting preferential seniority to non-victims of discrimination." Id. at 429.
Applying the "affirmative action" framework, the district court found a manifest imbalance for both non-test-taker and test-failer Offerees. For the Offerees who had failed a test, the district court said that the Government had satisfied the "manifest imbalance" requirement by showing statistical evidence sufficient to make out a prima facie case of testing discrimination, id. at 425-26, except as to Hispanics who took Exam 8206; as to them a hearing was required, id. at 427. For Offerees who had not taken a test (and who therefore, the court reasoned, could only be victims of recruiting discrimination, if they were victims at all), the district court relied on Dr. Ashenfelter's analysis that found a statistical imbalance between the expected and actual numbers of black, Hispanic, Asian, and female takers of the three challenged exams. Id. at 427-28.
After resolving those Title VII issues, the district court examined the Equal Protection Clause of the Fourteenth Amendment, since the Brennan Plaintiffs had also attacked the settlement under 42 U.S.C. § 1983. For the minority male Offerees the district court applied strict scrutiny to the settlement grants of retroactive seniority. NYC Board III, 448 F.Supp.2d at 434-35. This meant the City Defendants had to show (1) a compelling interest for adopting the retroactive seniority, and (2) that the retroactive seniority was narrowly tailored to meet that interest. The district court said that, in this particular case, such a showing required the City Defendants to demonstrate a strong basis in evidence that the Board's own tests and/or recruiting practices were discriminatory. The court then held that the required showing was satisfied for Black and Hispanic Offerees who failed a test, because the Board had created the exams and the tests were adequately shown to be discriminatory against those racial groups. It was not, however, satisfied for non-test-taking male Offerees because although there was a significant disparity between the number of white test-takers and the number of black, Hispanic, or Asian test-takers, there was no sufficient evidence that this disparity was caused by the Board's own recruiting practices. Id. at 434-35. The district court rejected the Brennan Plaintiffs' claim that a compelling interest always requires a showing of intentional disparate treatment by the governmental entity asserting the interest, for such a requirement was, in the district court's judgment, inconsistent with Supreme Court precedent and the policy of encouraging settlement of Title VII cases. Id. at 436-38. The court also found that the transfer and TCA seniority remedy for the test-failer Offerees was narrowly tailored under the factors listed in United States v. Paradise, 480 U.S. 149, 171, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987). Id. at 438-40. Layoff seniority even for these Offerees, however, was not narrowly tailored. Id. at 440-41.
For female Offerees, the analysis was different. The district court, applying intermediate scrutiny, did not require any showing of governmental (Board) involvement in the discrimination the Board sought to remedy, so the City Defendants' interest in remedying gender discrimination could survive intermediate scrutiny even where their interest in remedying race discrimination might not survive strict scrutiny. Id. at 441-43. Having found that transfer and TCA seniority met the "narrowly tailored" standard during its strict scrutiny analysis, the district court easily determined that transfer and TCA seniority were "substantially related" for intermediate scrutiny purposes as well.
The district court concluded its first opinion by addressing two other matters.
The district court then listed the factual issues that still required a hearing:
Id. at 447-48.
After holding hearings on the remaining factual issues, the district court issued a second opinion. See NYC Board IV, 487 F.Supp.2d 220. This opinion discussed the results of those hearings and responded to several motions for reconsideration. In it the court held that:
The third opinion was issued in May 2008 after a hearing on the intent of the parties to the 1999 settlement agreement. See NYC Board V, 556 F.Supp.2d 202. The court addressed two issues: first, whether the parties in 1999 intended to categorize Offerees into "testing-claim beneficiaries" and "recruiting-claim beneficiaries"; second, who among the testing-claim beneficiaries was an actual victim of testing discrimination.
At the hearing, the district court heard the testimony of (1) Norma Cote, who had negotiated the settlement for the City Defendants, and (2) Katherine Baldwin, a Government lawyer who was not directly involved in the settlement negotiations but who reviewed and approved the agreement for DOJ policy compliance. Id. at 205-06. Cote testified that the Government had never separated the claimants into recruiting and testing beneficiaries, nor had it told the City Defendants that "the United States[] intended the settlement agreement to provide make-whole relief calibrated to each [O]fferee's individual injury." Id. at 205. Indeed, she testified that she did not recall the Government "ever explain[ing] to [her] why they wanted these individuals to get retroactive seniority." Id. at 205-06. Baldwin testified that DOJ's policy was "only [to] seek relief for identified victims of discrimination, [m]ake whole relief for identified victims of discrimination." Id. at 206. Baldwin said that she and DOJ would not have approved the agreement if it had violated that policy. Id.
Based on this testimony, the district court "conclude[d] that had the [City Defendants] and the United States operated under the assumption—now embodied in the Court's holdings—that there was a sufficient evidentiary basis only for testing discrimination, blacks and Hispanics who had not taken one of the challenged exams would not have been included in the list of Offerees." Id. at 207. The district court noted that the parties must have been aware in 1999 that (1) some recruiting claimants were being given retroactive seniority, because Asians and non-Hispanic, non-black women received that relief, and (2) "some blacks and Hispanics had not taken one of the challenged exams because that factor was relevant in determining whether relief would be based on the median hire date for a challenged exam or provisional hire date." Id. at 206-07. But the district court said that Baldwin's testimony was "[m]ost compelling," and that "[a]lthough the Court credits Cote's testimony that the policy was not communicated to the Board, ... the United States simply would not have condoned any agreement that went beyond [make-whole] relief [to actual victims]." Id. at 207. The court also suggested that it was relying on "the general principle of contract law that `reformation may be available where the parties were under no mistake as to the words of the writing, but they supposed that the legal outcome would be different.'" Id. at 207 n. 4 (quoting 27 Williston on Contracts (4th ed.2003) § 70:128). For these reasons, the district court decided not to reconsider its holding that retroactive seniority for male recruiting claimants
The court then made determinations as to who among the 27 testing claimants were actual victims.
In 2006, Ruben Miranda, a Hispanic male incumbent Custodian aligned with the Brennan Plaintiffs, filed yet another lawsuit alleging violations of Title VII and § 1983 by the City Defendants. Miranda alleged that he was denied two transfers in 2005, and that he would have gotten the transfers but for the retroactive seniority given to Offerees Janet Caldero and Marcia Jarrett, who got the transfers instead. He sought injunctive and declaratory relief, as well as damages. That case ("Miranda") was consolidated below, was dealt with in the district court's final judgment, and is part of this appeal.
After numerous appeals and cross-appeals were filed, three parties sought stays or injunctions pending appeal. The Caldero Intervenors asked for a stay only as to the portion of the district court's declaratory judgment that stripped minority male recruiting-claim Offerees of seniority stemming from their permanent appointment dates. See United States v. N.Y. City Bd. of Educ., 620 F.Supp.2d 413, 415 (E.D.N.Y. 2009) [hereinafter NYC Board VI]. The Brennan Intervenors sought to have the City Defendants enjoined from "providing any competitive seniority benefits to any beneficiary of the Settlement Agreement executed on February 11, 1999 (`the Agreement') to the extent that (1) the competitive seniority benefit resulted from the Agreement, (2) [the district court] found that those benefits were not a form of make-whole relief to actual victims of discrimination, and (3) [the district court] nonetheless found that the provision of those benefits did not violate the law." Id. at 416 (modification omitted). The City Defendants sought a complete stay of the judgment. Id. The district court denied all three motions, stating that "neither the threat of irreparable harm nor the likelihood of success on appeal is sufficiently one-sided to justify disturbing what the Court believes to be the legally correct result." Id. at 417.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., prohibits two types of employment discrimination on the basis of race, color, religion, sex, or national origin.
Disparate-treatment discrimination is prohibited by § 703(a) of the Act, 42 U.S.C. § 2000e-2(a). Such claims require
Disparate-impact discrimination is also barred by Title VII. Disparate-impact claims do not require a showing of discriminatory intent. Disparate impact occurs when an employer uses an employment practice that has a disproportionately adverse effect on protected groups. Ricci, 129 S.Ct. at 2672-73. An employer can rebut a prima facie showing of disparate impact by demonstrating that the employment practice is job-related, and the plaintiff, in turn, can rebut that showing by demonstrating that there is a less discriminatory alternative to the challenged practice. Id.
The Supreme Court, in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), first interpreted § 703(a)(2) of the 1964 Act to prohibit disparate-impact discrimination. In response to some pro-defendant interpretations of disparate-impact doctrine made by the Supreme Court in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), Congress enacted the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071.
A separate section of Title VII, § 706(g), 42 U.S.C. § 2000e-5(g), addresses the equitable remedies a court may order after liability is proven. The statute provides courts with broad equitable powers:
Id. § 2000e-5(g)(1). But some types of individualized remedies are limited to actual victims of discrimination—that is, those individuals who would not have suffered the employer's adverse employment action in a nondiscriminatory world:
Id. § 2000e-5(g)(2)(A); see also Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 367, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).
As the Supreme Court and this Court have said, the § 703(a) "liability" phase and the § 706(g) "remedial" phase of a Title VII case are separate and must not be confused with one another. See id. at 360-61, 97 S.Ct. 1843 (distinguishing "the initial, `liability' stage" from "the second, `remedial' stage"); Cates v. Trans World Airlines, Inc., 561 F.2d 1064, 1070, 1072 (2d Cir.1977). Section 706(g), being a remedial provision and not a liability provision, does not speak to the actions of private parties; only a court is limited by it. Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 521, 106 S.Ct. 3063, 92 L.Ed.2d 405 (1986). Private conduct is, instead, governed by the liability provisions of § 703.
Before we discuss the numerous legal issues presented by this case, we pause to consider its procedural posture. The district court declined to enter the settlement agreement as a consent decree, and no party has appealed that decision. Accordingly, there is nothing left for us to decide with respect to the original 1996 NYC Board case brought by the Government. Indeed, the issue of settlement approval is now moot, for, as the district court explained, the settlement agreement expired by its terms on February 11, 2003:
NYC Board III, 448 F.Supp.2d at 443 (citation omitted).
Before us now is a pair of subsequent lawsuits brought by the Brennan Plaintiffs (Brennan and Miranda) which had been consolidated with the original case below. Those lawsuits allege that the City Defendants' voluntary implementation, which took place around the year 2000, of the settlement agreement violated two statutes as to the Brennan Plaintiffs. The first is § 703(a) of Title VII, 42 U.S.C. § 2000e-2(a). The second is 42 U.S.C. § 1983, by virtue of an alleged violation of the Equal
The parties' briefs and the opinions below indicate confusion over the procedural posture of this case. We therefore emphasize here, as we will throughout our opinion, that this case is about whether the City Defendants are liable to the Brennan Plaintiffs for violations of § 703(a) or the Equal Protection Clause. We are not deciding what remedy the district court could have ordered if, instead of agreeing to settle the case, the Government had proven a disparate-impact violation by the City Defendants in NYC Board. We are also not deciding whether the district court's long ago decision not to approve the disputed portions of the settlement agreement and enter them as a consent decree was proper, in whole or in part. And we are not deciding whether, if the Government had directly attacked the seniority system itself as discriminatory, such an attack would have succeeded despite § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h). None of those questions are before us.
The district court disposed of the vast majority of the relevant issues in Brennan and Miranda upon cross-motions for summary judgment. But, in what appears to be a confusion about the case's procedural posture, there were a few issues resolved by what the district court and the parties describe as "evidentiary hearings." At these hearings, the district court heard testimony and took evidence. The court subsequently made findings of fact. It is not immediately clear to us why the district court held these hearings rather than a trial, and at oral argument the Government admitted that it didn't know either. Since the district court's 2006 opinion had already declined to enter the settlement agreement as a consent decree, the Brennan Plaintiffs' Title VII § 703(a) and 42 U.S.C. § 1983 claims were what remained. No party to these suits appears to have requested a jury trial, although the Brennan Plaintiffs' damage claims for intentional discrimination in violation of Title VII would certainly have given rise to the right to one, see 42 U.S.C. § 1981a(c). Ordinarily, under these circumstances, a district court would have held a trial to decide any factual issues not resolved at the summary judgment stage. Given what occurred at the evidentiary hearings, and given that the Brennan Plaintiffs do not appear to have objected to the lack of a jury trial, we think it best to treat the hearings as separate bench trials on separate issues. See Fed.R.Civ.P. 42(b) ("For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues...."). And we review them as such.
This means that in this opinion, "[w]e review de novo the district court's partial grant of summary judgment, construing the evidence in the light most favorable to the non-moving party." Weintraub v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 593 F.3d 196, 200 (2d Cir.2010). And on this "appeal taken from a judgment entered following a bench trial, we review the district court's findings of fact for clear error, but we review de novo its conclusions of law and its resolution of mixed questions of fact and law." APL Co. PTE Ltd. v. Blue Water Shipping U.S. Inc., 592 F.3d 108, 110 (2d Cir.2010).
We consider the Brennan Plaintiffs' Title VII claim first, leaving their constitutional claims to be considered later and only as necessary. See Ricci, 129
Because the Supreme Court's majority opinion in Ricci
The earlier Supreme Court cases dealing with § 703(a) challenges to affirmative action plans further support the view that McDonnell Douglas is the appropriate framework for this case. Like Ricci, these cases reconcile the disparate-treatment provisions of Title VII with the statute's other goals by recognizing a defense which employers may raise when they are sued for disparate treatment. The Supreme Court has explicitly stated that the "affirmative action" defense, too, is properly raised at the second step of the McDonnell Douglas framework. See Johnson v. Transp. Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987) ("This case also fits readily within the analytical framework set forth in McDonnell Douglas Corp. v. Green. Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer's employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale." (citation omitted)).
We therefore apply McDonnell Douglas to the Brennan Plaintiffs' § 703(a) claim. And the first question we must address is whether the Brennan Plaintiffs have satisfied the requirements for a prima facie case under McDonnell Douglas.
In sum, because the City Defendants' actions were explicitly race- and sex-based—i.e., the grants of retroactive seniority were made because the three disputed exams and the recruiting process had resulted in racial and gender disparities among test-takers and test-passers— "[o]ur analysis begins with this premise: The [City Defendants'] actions would violate the disparate-treatment prohibition of Title VII absent some valid defense.... Without some other justification, this express, race-[ and gender-]based decisionmaking violates Title VII's command that employers cannot take adverse employment actions because of an individual's race [or sex]." Ricci, 129 S.Ct. at 2673.
Taken together, the briefs of the Caldero and Arroyo Intervenors and the Government raise two defenses on behalf of the City Defendants. The first defense, raised only on behalf of the Caldero and Arroyo Intervenors, is that the City Defendants' voluntary implementation of the settlement agreement was a valid affirmative action plan. The second, raised or suggested in somewhat different ways as to various specific Offerees by all three of these parties, is the "strong basis in evidence"
The Caldero and Arroyo Intervenors argue that the retroactive seniority awards were justified as part of an affirmative action plan, valid under Supreme Court precedent. They contend that, even if non-remedial, the seniority awards therefore do not violate § 703(a). Thus, according to these intervenors, even if, at the time the City Defendants implemented the settlement agreement, there was no reason to think that the individual recipients of retroactive seniority were victims of discrimination, such seniority would still be valid. The district court agreed in part, and held that, except for the retroactive awards of layoff seniority, the retroactive seniority awards constituted permissible affirmative action. We, instead, hold that the City Defendants' implementation of the settlement agreement was not affirmative action at all, let alone permissible affirmative action; and that it was, therefore, error for the district court to apply such an "affirmative action" defense to the Brennan Plaintiffs' claims.
The Supreme Court first recognized that a valid affirmative action plan constituted a defense to a § 703(a) reverse-discrimination lawsuit in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). In Weber, a union and an employer collectively bargained for an affirmative action plan under which 50% of the openings in an in-plant craft training program would be reserved for black employees, until the percentage of black craft workers in the plant reached a level commensurate with the percentage of blacks in the local labor force. A white production worker, who had not been selected for the training program, brought suit under § 703(a) of Title VII, arguing that he had been denied entry into the training program because of his race. The Supreme Court held that "Title VII's prohibition in § [ ] 703(a) ... against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans." Id. at 208, 99 S.Ct. 2721. The Court did not "define in detail the line of demarcation between permissible and impermissible affirmative action plans." Id. But the Court noted that the plan was "structured to open employment opportunities for Negroes in occupations which have been traditionally closed to them," and that it did not "unnecessarily trammel the interests of the white employees" because it was "a temporary measure" that did not "require the discharge of white workers and their replacement with new black hirees" or "create an absolute bar to the advancement of white employees." Id. The Court therefore held that the affirmative action plan in Weber "f[ell] within the area of discretion left by Title VII to the private sector voluntarily to adopt affirmative action plans designed to eliminate conspicuous racial imbalance in traditionally segregated job categories." Id. at 209, 99 S.Ct. 2721.
The Court reaffirmed its Weber holding, and elaborated upon the requirements for a valid affirmative action plan, in Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). In Johnson the defendant employer voluntarily adopted an affirmative action plan for promotions of employees, and pursuant to this plan it promoted a female employee over the male plaintiff. The plan took sex into account
In the instant case, the district court held, and the Caldero and Arroyo Intervenors urge, that, except for purposes of layoff seniority,
The Supreme Court's recent decision in Ricci indicates that not all voluntary race- or gender-conscious employer action is properly analyzed under Weber and Johnson. In Ricci, the City of New Haven administered a promotional examination for its firefighters. The results yielded a significant racial disparity: according to the promotion rules and by virtue of the test scores, all ten individuals eligible for the then-existing lieutenant vacancies were white; and of the nine individuals eligible for the then-existing captain vacancies, two were Hispanic and seven were white. See 129 S.Ct. at 2666. Because of this racial disparity and, allegedly, because of fear of a disparate-impact lawsuit from black firefighters, the New Haven Civil Service
The Supreme Court, correctly, described New Haven's decision as a "race-based action." Id. at 2674. But, even though the Court was addressing a § 703(a) reverse-discrimination suit attacking a voluntary, private "race-based action," the majority opinion did not cite Weber or Johnson. Nor did the Court apply the "manifest imbalance" and "unnecessary trammeling" factors. Instead, the Court adopted a "strong basis in evidence" standard: "under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action." Id. at 2677. Ricci thus makes clear that at least some race- or sex-conscious voluntary employer actions are not subject to the "affirmative action" analysis of Weber and Johnson.
Before Ricci, this Court had held, relying on Weber, that "a showing of a prima facie case of employment discrimination through a statistical demonstration of disproportionate racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated, voluntary race-conscious remedies." Bushey v. N.Y. State Civil Serv. Comm'n, 733 F.2d 220, 228 (2d Cir.1984) (footnote omitted). Based on that reasoning, we upheld, against a § 703 reverse-discrimination challenge, a public employer's adjustment of promotional examination scores for prison employees, in order to avoid a disparate impact on minority officers. Id. at 227-28. After Ricci, however, the position taken in Bushey is no longer tenable. A prima facie case of disparate impact is not, post-Ricci, an adequate factual predicate for all types of race- or gender-conscious employer actions. At least some race- or gender-conscious actions, such as the rejection of test scores because of their racial distribution, are not affirmative action and therefore cannot be supported by a mere "manifest imbalance," or even by a prima facie case of disparate impact.
Since, after Ricci, not all race- or sex-conscious voluntary employer actions constitute "affirmative action" that might be properly analyzed under Johnson and Weber, we must decide what is an affirmative action plan and what is not. We agree with the Brennan Plaintiffs that in order to be an affirmative action plan, an employer action must benefit all members of a protected class. Although the plan may call for individualized determinations, the plan itself cannot be individualized. Under this definition, the City Defendants' voluntary implementation of the settlement agreement is not an affirmative action plan. The City Defendants, and the intervenors who support them, therefore cannot rely on their affirmative action defense.
The Supreme Court has never said what, for purposes of the Weber/Johnson defense to § 703(a), is an affirmative action plan. But the Court has differentiated affirmative action from other forms of relief a court might order under § 706(g) of Title VII, 42 U.S.C. § 2000e-5(g). We think that distinction is applicable here.
Before delving into those cases, we pause to note that, in adopting for § 703(a) the definition of affirmative action found in the Supreme Court's § 706(g) cases, we do not mean to suggest that the authority of a court to order an employer to do something (as limited by § 706(g)) is coterminous with an employer's power to do that same thing voluntarily without violating § 703(a). The Supreme Court has expressly rejected that proposition, for the "suggestion that employers should be able to do no more voluntarily than courts can order as remedies ignores the fundamental difference between volitional private behavior and the exercise of coercion by the State." Johnson, 480 U.S. at 630 n. 8, 107 S.Ct. 1442 (citation omitted). We rely on the § 706(g) cases only for their definition of what affirmative action is, and not for their discussion of when affirmative action is permissible.
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984) is the earliest § 706(g) case relevant to a definition of affirmative action. In Stotts, black firefighters in Memphis, Tennessee, brought a § 703(a) pattern-or-practice racial discrimination claim against the Memphis Fire Department. After settlement negotiations, a consent decree was entered and approved by the district court. Among other things, the consent decree provided a hiring goal for black firefighters. The next year, because of budget difficulties, Memphis decided to lay some employees off. Under a contract between the city and the Firefighters' Union, layoffs were to follow a "last hired, first fired" rule. The result of following that rule would have been to lay off a significant proportion of black firefighters, thereby undoing much of what the hiring goal had accomplished. Upon the black firefighters' request, the district court issued an injunction to prevent the black firefighters from being laid off. The Court of Appeals affirmed. In order to comply with this injunction, the city laid off or demoted several white firefighters instead, even though they had more seniority than the black firefighters protected by the injunction.
Of the several arguments made in favor of the Stotts district court's injunction, one in particular is relevant here. The Court of Appeals in Stotts reasoned that (1) if the black firefighters had shown a Title VII violation, the district court could, under
The next significant case is Local 28, Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986). In Local 28, the Government successfully sued a union with a long and egregious history of discriminating against
Id. at 432-33, 106 S.Ct. 3019. After two appeals to our court, which resulted in only two changes to the plan—a minor modification to the white-nonwhite ratio, and an extra year for the union to meet the goal— the union had only reached 10.8% nonwhite membership. Id. at 434, 106 S.Ct. 3019. State and local authorities moved in the district court to hold the union in contempt.
The district court held the union in contempt, not simply because the union had not met the goal, but also because the union had failed to comply with the requirements of the underlying affirmative action plan, and had withheld information from the administrator and the court, thereby making monitoring the union's compliance difficult. Id. at 434-35, 106 S.Ct. 3019. The district court issued another contempt order after another year of noncompliance. Id. at 435-36, 106 S.Ct. 3019. The court at that time established a slightly different minority membership goal, and abolished the apprenticeship examination, which had been a vehicle for noncompliance. (The examination was replaced with selection by a three-member board, which would select white and minority apprentices at a one-to-one ratio.) A divided panel of our court affirmed in all respects relevant here, citing "the union's foot-dragging egregious noncompliance" with the plan. Id. at 438, 106 S.Ct. 3019 (citing EEOC v. Local 638, Local 28 of Sheet Metal Workers' Int'l Ass'n, 753 F.2d 1172, 1183 (2d Cir.1985)).
At the Supreme Court, a four-Justice plurality upheld the affirmative action plan against the union's claim that § 706(g) permits a district court to award preferential relief only to the actual victims of unlawful discrimination. The plurality held that "§ 706(g) does not prohibit a court from ordering, in appropriate circumstances, affirmative race-conscious relief as a remedy for past discrimination.... [S]uch relief may be appropriate where an employer or a labor union has engaged in persistent or egregious discrimination, or where necessary to dissipate the lingering effects of pervasive discrimination." Id. at 445, 106 S.Ct. 3019 (plurality opinion). The plurality distinguished Stotts thus:
Id. at 474, 106 S.Ct. 3019 (citation and footnotes omitted).
The Local 28 distinction between affirmative action and make-whole relief, we think, makes equal sense in the § 703(a) context, for it harmonizes Ricci with Johnson and Weber. In Ricci, a § 703(a) case, the employer action that was challenged was the discarding of the results of a test that had already been administered. This action was individualized, for what it did, in essence, was to give promotion—or at least another chance at promotion—to the individual black firefighters who had taken the test, at the expense of those firefighters who would have been eligible for promotion if the test results had been certified. As the Supreme Court explained:
129 S.Ct. at 2677. In other words, when an employer, acting ex ante, although in the light of past discrimination, establishes hiring or promotion procedures designed to promote equal opportunity and eradicate future discrimination, that may constitute an affirmative action plan. But where an employer, already having established its procedures in a certain way—such as through a seniority system—throws out the results of those procedures ex post because of the racial or gender composition of those results, that constitutes an individualized grant of employment benefits which must be individually justified, and not affirmative action.
The affirmative action plans in Johnson and Weber were quite different from such make-whole relief. The plan in Weber set out to achieve a better future racial balance among skilled craftworkers at Kaiser Steel's Gramercy plant, by requiring that
The plan in Johnson, likewise, did not grant individualized employment benefits to any specific women or racial minorities. The employer in Johnson, noting the underrepresentation of women in certain job classifications, decided to authorize the consideration of sex as one of several factors in deciding which of several qualified applicants to promote. 480 U.S. at 620-21, 107 S.Ct. 1442. Although this plan ultimately resulted in the promotion of a woman over a man who was otherwise slightly better qualified, see id. at 623-24, 107 S.Ct. 1442, the wheels were set in motion ex ante. The employer decided on a plan that benefited the entire class of women, and then it simply applied that plan in a particular instance. By way of contrast, the employer had not previously adopted a different, gender-neutral method of selecting employees for promotion and then opted to throw it out when confronted with the reality that a particular woman would not be promoted under that method.
The Arroyo and Caldero Intervenors contend, however, that the line between "affirmative action" governed by Weber and Johnson on the one hand, and race- or gender-conscious action taken "for the asserted purpose of avoiding or remedying an unintentional disparate impact," Ricci, 129 S.Ct. at 2677, on the other, must be drawn quite differently. We find their attempts to circumscribe Ricci to be without merit.
The Arroyo Intervenors first suggest that Ricci essentially be limited to its facts. They say that Ricci applies only where an employer is motivated by "[f]ear of litigation alone," id. at 2681, and that "Ricci's new legal standard has no application to a case like this one involving an employer's well-informed decision, after years of defending against employment discrimination claims, to enter into a settlement to redress ongoing and pervasive racial exclusion in a particular class of jobs." Arroyo Reply Br. at 5. That argument confuses the Ricci strong-basis-in-evidence standard with the threshold question of whether Ricci applies. In Ricci, the Supreme Court said that an employer motivated by "fear of litigation alone" does not have an adequate strong basis in evidence. The Court did not suggest that the strong-basis-in-evidence standard applies only when an employer is motivated by "fear of litigation alone." Indeed, it would make no sense to require a strong basis in evidence of only those employers who take race- or gender-conscious actions that are not "well-informed."
Second, both the Arroyo and Caldero Intervenors assert that Ricci is limited to situations in which an employer, acting to avoid a disparate-impact Title VII violation
Ricci is not limited to cases where the employer seeks to avoid a current violation. As the Ricci Court itself stated, its core holding applies whenever an employer takes race-conscious action "for the asserted purpose of avoiding or remedying an unintentional disparate impact." 129 S.Ct. at 2677 (emphasis added). And limiting Ricci to the avoidance of current violations would make very little sense. It would be strange to make an employer be subject to Ricci when it promises a set of employment benefits to test-passers but then unilaterally decides not to give the benefits out, while at the same time allowing that employer to avail itself of the more easily satisfied Johnson/Weber standard when it gives out another set of benefits, such as the seniority rights that will lead to the aforementioned benefits. Ricci also is not solely about hiring or promotion. Nothing in the case suggests that when other past established employment benefits are involved employers can take individualized race- or gender-conscious action to remedy an asserted disparate impact without meeting the "strong basis in evidence" test. See id. at 2676 ("[W]e adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII." (emphasis added)). For similar reasons, Ricci does not require that specific individuals be entitled to specific positions. When an employer lacks a strong basis in evidence that it would otherwise be liable for disparate impact, the employer should not "upset[ ] an employee's legitimate expectation not to be judged on the basis of race." Id. at 2677. That expectation is upset by the race-conscious discarding of conditional entitlements to employment or employment benefits, just as much as it is when the entitlement is absolute.
We therefore hold that § 703(a), like § 706(g), draws a distinction between affirmative action plans, which are intended to provide ex ante benefits to all members of a racial or gender class, and make-whole relief, which is intended to provide ex post benefits to specified individuals who have suffered discrimination. And where this latter form of benefits is at issue, the employer may not invoke the "affirmative action" defense of Johnson and Weber.
Having held that the Johnson/Weber framework does not apply to make-whole relief, we now apply this rule to the City Defendants' voluntary implementation of the disputed portions of the settlement agreement. In our view, the City Defendants' voluntary implementation of the settlement agreement falls on the Stotts side of the Local 28 distinction between affirmative action and make-whole relief. The City Defendants' implementation of the disputed portions of the settlement agreement granted competitive seniority to the Offerees. Competitive seniority is one of
And, perhaps even more importantly, the reason why grants of competitive seniority are generally not affirmative action, and therefore are generally limited to make-whole relief, is that retroactive seniority is by its nature individualized. The Offerees were a group of individuals defined by the settlement agreement to include provisional Custodians and CEs who were women or members of certain racial minority groups. Most of them were identified by name in an appendix to the agreement. It cannot be said that the City Defendants "provided [employment benefits] to the class as a whole rather than to individual members." Local 28, 478 U.S. at 474, 106 S.Ct. 3019. Instead, what the City Defendants did was "tantamount to an award of make-whole relief," id., to individual provisional Custodians and CEs, arguably without adequate regard to whether there was any reason to think they might have been actual victims of discrimination, or to whether there was a strong basis in evidence that a disparate impact suit by them would succeed.
The Caldero Intervenors urge that the retroactive seniority awards in this case are affirmative action even though "they do not look like the most typical kind." They say the awards are a reasonable, narrower substitute for a general race or gender preference for school transfers. Their view seems to be that if a broad, non-individualized racial preference is permissible provided that there is a manifest imbalance and the plan is narrowly tailored, then race- or gender-conscious relief for only some of the individuals who would have benefited from such a policy, had it been there in the past, must also be permissible. We do not agree. Just as, in the § 706(g) context, courts have the power to order general racial preferences (as in Local 28), but not individualized non-remedial relief (as in Stotts), so, employers also cannot undertake individualized non-remedial relief and validate it by calling it "affirmative action."
The cases cited by the Caldero Intervenors are not to the contrary. In Jana-Rock Constr., Inc. v. N.Y. State Dep't of Econ. Dev., 438 F.3d 195 (2d Cir.2006), an equal protection case, a construction company owned by an individual of Spanish descent claimed that New York's definition of "Hispanic," which was used for purposes of selecting minority-owned businesses to benefit from affirmative action, violated the Equal Protection Clause because it included individuals of Latin American descent while excluding Spaniards. We rejected this challenge, holding that the Equal Protection Clause does not require a state using an affirmative action plan to "expand[ ]" the preferred class "to include other racial and ethnic groups that may have been discriminated against." Id. at 207. Assuming arguendo that this equal protection reasoning applies in the § 703(a) context, Jana-Rock is distinguishable because it deals with the definition of a racial or ethnic beneficiary class. In our case, nobody is saying that the numerous other minority or female individuals who may have applied for Custodian or CE positions—or, for that matter, the minority or female incumbent Custodians and CEs like Miranda plaintiff Ruben Miranda—are not black, Hispanic, Asian, or female. They were excluded from the settlement agreement's benefits, not because they were deemed to be the "wrong" gender or race, but rather because they were not among the individuals selected for individualized
The Caldero Intervenors also rely on Stuart v. Roache, 951 F.2d 446 (1st Cir. 1991) (Breyer, J.), in which the First Circuit upheld under the Equal Protection Clause a race-conscious promotion plan for Boston police officers. The promotion goals for black officers fell short of the projected number of such officers eligible for promotion: they amounted to 15.5% of all sergeants, while the eligible pool contained about 20% black officers. Id. at 454. But, like a differently defined racial or gender class, a smaller promotion goal does not turn affirmative action into individualized relief. A 15.5% goal and a 20% goal are both "provided to the class as a whole rather than to individual members." Local 28, 478 U.S. at 474, 106 S.Ct. 3019. The retroactive seniority awards at issue in our case are, instead, expressly "provided... to individual members."
It is noteworthy, as well, that the Government claims it never intended a Stotts-like result when it entered the settlement agreement. The district court held a hearing to determine the intent of the settlement agreement, and at that hearing Norma Cote, the lawyer who had negotiated the agreement for the City Defendants, testified that she did not recall the Government "ever explain[ing] to [her] why they wanted these individuals to get retroactive seniority." NYC Board V, 556 F.Supp.2d at 205-06. Katherine Baldwin, a DOJ supervisor who was not directly involved in the settlement negotiations but who approved the settlement after it was negotiated, testified that it was DOJ policy to seek only make-whole relief for actual victims, and that she would not have approved the settlement if it had contravened that policy. Id. at 206. The district court found, on the basis of this testimony, that the settlement agreement was intended to be limited to make-whole relief. Although the awards may have gone beyond make-whole relief, we are skeptical as to whether an employer can adopt an affirmative-action plan by accident. When an employer adopts an affirmative-action plan, it generally does so consciously, with the purpose "not to make identified victims whole, but rather to dismantle prior patterns of employment discrimination and to prevent discrimination in the future," Local 28, 478 U.S. at 474, 106 S.Ct. 3019. When applying strict or heightened scrutiny to race- or gender-based classifications in the Equal Protection Clause context, the Supreme Court has cautioned that "[t]he [actor's] justification must be genuine, not hypothesized or invented post hoc in response to litigation." United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (heightened scrutiny); accord Shaw v. Hunt, 517 U.S. 899, 908 n. 4, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (strict scrutiny). The same, we believe, is true when an employer raises the Weber/Johnson "affirmative action" defense to a reverse-discrimination suit under § 703(a).
The Caldero Intervenors, relying on the testimony recited in footnote 43, infra, and the text of the settlement agreement itself, assert that, notwithstanding the district court's finding to the contrary, the parties to the settlement agreement clearly intended to create an affirmative action plan in 1999. According to these Intervenors, it was manifest in 1999 that the settlement agreement would provide retroactive seniority to the specified Offerees without regard to whether there was any evidence that they were actual victims. Therefore, they say, the Government and the City Defendants must have intended to create
The Caldero Intervenors correctly point out that the settlement agreement contained a specific definition of "Offeree," and that this definition was not limited to actual victims. They also correctly point out that the Cote testimony, which the district court credited, indicates that the Government and the City Defendants did not perform any individualized investigation of the Offerees to determine the likelihood that they were victims of discrimination. Once it was determined that an individual satisfied the definition of "Offeree" in the settlement agreement, that individual was offered retroactive seniority.
Finally, the City Defendants' race- and gender-conscious actions are a poor fit for the wrongs they seek to redress. True affirmative action, like that undertaken voluntarily by the employers in Johnson and Weber and ordered by the court in Local 28, has the power to break down old patterns of discrimination and prevent future discrimination against minorities and women. But affirmative action also has its costs. Most significantly, it is race- or gender-conscious, and it puts non-minority and male individuals at a disadvantage. See Ass'n Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 280-81 (2d Cir.1981) ("Balanced against the broad equitable power to remedy Title VII violations is a recognition that `the use of racial goals means, in practice, that certain nonminority persons will be kept out solely on account of their race or ethnic background' and that this impinges on the basic principle `that individuals are to be judged as individuals, not as members of particular racial groups.'" (quoting EEOC v. Local 638, Local 28 of Sheet Metal Workers Int'l Ass'n, 532 F.2d 821, 827 (2d Cir.1976)) (modifications omitted)). Make-whole relief, likewise, is a powerful remedy for past wrongs. By putting the victims of discrimination where they would have been, but for the discrimination, make-whole relief not only undoes much of the harm caused to the victims themselves, but also provides examples so that others know that they, too, can overcome this country's history of discrimination in the
Because of the costs inherent in both affirmative action and make-whole relief, anyone attempting to provide either of these forms of relief—whether it be a court imposing a remedy under § 706(g) after a Title VII violation has been found, or the Government proposing a settlement to an employer, or an employer acting voluntarily—must be exceptionally careful to ensure that the employer's proposed action is properly tailored to achieve whichever of these two types of remedies for discrimination is sought. That is not to say that one cannot use affirmative action and make-whole relief at the same time; of course one can. See, e.g., Local 28, 478 U.S. at 473 n. 44, 106 S.Ct. 3019 (noting that, along with imposing the affirmative action plan, the district court also gave backpay to specified individual victims of discrimination); cf. Ass'n Against Discrimination in Employment, 647 F.2d at 278 (noting that these "two categories [of relief] may overlap to some extent, although their intended functions differ"). But a court or employer planning to give out a race- or gender-conscious employment benefit, or a Title VII remedy, should always ask first: What is the purpose of what I am doing? (1) Am I trying to give make-whole relief to individual people who I think are victims of past discrimination, (2) am I trying to implement a non-individualized, class-wide affirmative action plan to dismantle prior patterns of discrimination and prevent future discrimination, or (3) am I trying to do both? Only after these questions have been answered can an appropriately tailored plan or plans be put in place. The Government and the City Defendants should have considered these questions before taking action. Instead, according to the testimony that the district court credited, the Government never explained why it wanted the Offerees to get retroactive seniority, and the City Defendants never asked.
The necessity of avoiding Stotts-like "remedies,"—that is, non-remedial, individualized, race- or sex-conscious employment benefits—is not merely an abstract, doctrinal matter. It affects real people in tangible ways. In the instant case, Ruben Miranda, the plaintiff in Miranda, may be the clearest example of how the City Defendants' remedy does not fit. He is a Hispanic male. He studied for, took, and passed Exam 5040, which allegedly discriminated against Hispanics. As a reward for overcoming this hurdle, he was hired as a Custodian—only to be told, some years later, that other, newly appointed Custodians, a specified group of women, blacks, Hispanics, and Asians, would be put ahead of him in seniority.
For all these reasons, while some or all of the retroactive seniority awards may be defensible on some other ground, they are not defensible as part of an affirmative action plan. The City Defendants therefore cannot use the Weber/Johnson defense to the Brennan Plaintiffs' § 703(a) prima facie case.
The Brennan Plaintiffs have made out a prima facie case of disparate treatment under § 703(a) of Title VII, and we have rejected the first defense relied on by the City Defendants, that of "affirmative action" under Johnson and Weber. We next consider the City Defendants' second defense: that the retroactive seniority awards to the Offerees were intended as make-whole relief to victims of the City Defendants' previous testing and recruiting practices that had a disparate racial and gender impact.
We hold that this defense—remedying disparate impact—is governed by Ricci. "[B]efore an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action." 129 S.Ct. at 2677. The City Defendants' action was race- and gender-conscious, and it was taken for the asserted purpose of remedying an unintentional disparate impact. It is therefore subject to Ricci.
Our reading of Ricci is that a strong basis in evidence that an employer will be subject to disparate-impact liability requires that, at the time it takes the "race-conscious, discriminatory action," the employer be faced with both (1) a prima facie case of disparate impact against itself (or perhaps a strong basis in evidence of a prima facie case), and (2) a strong basis in evidence either (a) that the employment practice having the disparate impact was neither job-related nor consistent with business necessity, or (b) that there was an equally valid, less discriminatory alternative, that the employer had refused to adopt, that would have served the employer's needs. As detailed in Part V.A, infra, we hold that, under Ricci, a "strong basis in evidence" of non-job-relatedness or of a
The case before us also presents an additional problem not at issue in Ricci. Even if an employer has a strong basis in evidence that it faces liability for disparate impact, it may be unclear to whom the employer might face liability, or, if the disparate-impact case were brought by the Government, who might be entitled to court-ordered relief under § 706(g) and to what extent such individuals would receive relief. In the instant case, it was unclear at the time of the City Defendants' actions, and it remains unclear today, exactly who among the Offerees was a victim of any disparate-impact discrimination that might have occurred, and how much retroactive seniority was necessary to make such individuals whole. We hold that the strong-basis-in-evidence standard of Ricci applies to these questions too.
Thus, the employer must have a strong basis in evidence not only that it will actually be found liable for disparate impact, but also that, at the remedial stage following such a finding of liability, a court might well impose (pursuant to § 706(g)) a make-whole remedy equivalent to or broader than what the employer has done voluntarily. Put differently, when an employer, instead of litigating and having a court impose an equitable remedy, undertakes unilaterally the "process of recreating the past," Int'l Broth. of Teamsters v. United States, 431 U.S. 324, 372, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), the employer must have a strong basis in evidence that its race- or gender-conscious action, "as nearly as possible, `recreate[s] the conditions and relationships that would have been had there been no' unlawful discrimination," id. (quoting Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 769, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976)). As with the employer's fear of disparate-impact liability, the employer's reconstruction of the past must, that is, be objectively reasonable.
It is not immediately obvious from Ricci what constitutes a "strong basis in evidence" in the Title VII disparate-impact context. The standard is new in this context, and the Supreme Court has not yet had occasion to describe its operations in detail, for in Ricci the court held that the standard had manifestly not been satisfied. See 129 S.Ct. at 2681 ("[T]here is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City."). Our task, therefore, is to provide, as best we can, some guidance for the district court in applying the Ricci strong-basis-in-evidence test to the facts of this case.
Some of the general contours of the strong-basis-in-evidence standard are evident from Ricci. First, the standard is objective, not subjective, and it therefore focuses on the strength of the evidence of liability, not the strength of the employer's fear of litigation. See id. at 2675 (stating that "[a] mere good-faith fear of disparate-impact liability" is inadequate); id. at 2677 (referring to "an objective, strong basis in evidence"); id. at 2681
Second, the strength of the evidence of disparate-impact liability is measured at the time the employer took the race- or gender-based action. In examining the evidence marshaled by New Haven, the Ricci Court considered only what the city knew at the time it made its decision, and not any further information that arose afterwards. See id. at 2678-81. Similarly, the Court generally referred to the absence of a strong basis in evidence in the past tense. E.g., id. at 2681 ("On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results."). The rationale underlying Ricci, moreover, confirms that the evidence is to be gauged at the time of the race- or sex-conscious employer action. The strong-basis-in-evidence standard is intended to "strike[ ] a ... balance" between the Title VII provisions concerning disparate treatment and disparate impact, so that employers make the right decisions in the first place. Id. at 2675.
Thus, Ricci seeks to avoid both creating a legal framework under which "employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment," and one under which employers would undertake "race- [or gender-]based action at the slightest hint of disparate impact." See id. at 2674-75. If evidence from after the employer's race- or gender-based decision were taken into account, there would be false negatives and false positives. Some employers might take inappropriate race- or gender-based actions in the hope or expectation that a strong basis in evidence would later emerge; other employers who actually do have a strong basis in evidence might refuse to take voluntary action for fear that later evidence would undermine that basis. Moreover, still other employers would be held liable for disparate treatment or for disparate impact even though based on the evidence of disparate impact then before them, they acted correctly at the time they made their decisions. All such results are inimical to Ricci.
Third, either an actual prima facie case of disparate-impact liability is required, or a strong basis in evidence of a prima facie case is required. Ricci does not say which, as the City of New Haven was faced with an undisputed prima facie case of disparate impact. Id. at 2677-78. Nevertheless, because Ricci explicitly rejects the proposition that "an employer in fact must be in violation of the disparate-impact provision before it can use compliance as a defense in a disparate-treatment suit," it seems likely that no more than a strong basis in evidence that a prima facie case exists would suffice.
Fourth, because of the objective nature of the strong-basis-in-evidence test and its focus on the likelihood of actual liability, the test requires that the employer have a strong basis in evidence either (1) that its challenged employment procedures are not job-related, or (2) that there was a less discriminatory alternative procedure which the employer refused to adopt. These are, as the Ricci Court explained, the two conditions under which an employer can be liable for disparate impact after a plaintiff has shown a prima facie case of disparate impact. See Ricci, 129 S.Ct. at 2678.
A somewhat more difficult question is just how strong the evidence of non-job-relatedness or a less discriminatory alternative must be. Two boundaries are clear from the Ricci Court's opinion. The evidence of liability certainly must be stronger than the evidence New Haven presented in Ricci. Summary judgment against the city could not there be avoided with what was described as "no evidence," 129 S.Ct. at 2681, or, at most, "a few stray (and contradictory) statements in the record," id. at 2680. At the other end, a strong basis in evidence that an employer will be liable for disparate impact must be less than what is required to prove a disparate-impact violation (and hence than what is needed to prove non-job-relatedness or the existence of a less discriminatory alternative). The strong-basis-in-evidence standard, Ricci says, "is not so restrictive that it allows employers to act only when there is a provable, actual violation." Id. at 2676. The strong-basis-in-evidence test does not, therefore, require that there be a preponderance of the evidence of an actual disparate impact violation.
We think Ricci suggests that a strong basis in evidence is a balanced standard that falls somewhere in the middle between these upper and lower extremes. In borrowing the strong-basis-in-evidence standard from a line of Equal Protection cases, the Ricci Court stated that those cases "recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other." Id. at 2675. Balancing those two goals requires "evidentiary
Nevertheless, and notably, a "strong basis in evidence" for purposes of Ricci and Title VII is not necessarily the same as it is for Equal Protection Clause purposes. Id. at 2676. While in the equal protection context a strong basis in evidence has been described as "sufficient evidence to justify the conclusion that there has been prior discrimination," Wygant, 476 U.S. at 277, 106 S.Ct. 1842 (plurality opinion), Ricci, instead, explicitly does not require that an employer show that there has been a past disparate-impact violation of Title VII. Additionally, the Equal Protection Clause does not prohibit the government from taking actions which have an unintentional disparate impact, see Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), and the type of evidence that supports a disparate-impact claim is different from that which would support a disparate-treatment claim.
In sum, a strong basis in evidence of disparate-impact liability is an objectively reasonable basis to fear such liability. It is evaluated at the time an employer takes a race-conscious action. It relies on real evidence, not just subjective fear or speculation. Because it focuses on liability rather than mere litigation, it requires both objectively strong evidence of a prima facie case (or perhaps actual proof of a prima facie case) of disparate impact, and objectively strong evidence of non-job-relatedness or a less discriminatory alternative.
Even after an employer has shown a strong basis in evidence that it faces disparate-impact liability, the employer does not have carte blanche to take whatever race- or gender-conscious actions
This necessity issue was not squarely presented in Ricci, for two reasons. First, there was no strong basis in evidence that New Haven would have faced disparate-impact liability, so it was unnecessary to determine what New Haven was permitted to do to remedy the disparate impact. Second, if New Haven had had a strong basis in evidence of disparate-impact liability, then there would have been little question that refusal to certify the test results was precisely what was necessary to avoid liability. There was, therefore, no need in Ricci to undertake the difficult process of determining who might have been a victim of discrimination and what sort of relief might have been required to make such individuals whole. Cf. Teamsters, 431 U.S. at 371-72, 97 S.Ct. 1843. It seems easier to say what would be necessary to avoid a disparate-impact violation that is about to occur but has not yet happened, than it is to say what is necessary to remedy such a violation years after it took place.
We think it makes good sense to require that an employer's strong basis in evidence extend beyond the existence of disparate-impact liability, to the necessity of the employer's chosen race- or sex-conscious remedy for that disparate impact. As with the requirement of a strong basis in evidence of liability, a strong basis in evidence of necessity "gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances." Ricci, 129 S.Ct. at 2676. In doing so, requiring a strong basis in evidence of necessity avoids extreme positions that would undermine the careful Ricci balancing of disparate treatment and disparate impact under Title VII. If a showing of actual necessity— i.e., a showing that the race- or sex-conscious action's beneficiaries were actual victims who received make-whole relief— were mandated, employers would likely refuse to settle disparate-impact cases for fear of disparate-treatment liability. See Part V.B, infra; Ricci, 129 S.Ct. at 2674. But if anything less than a strong basis in evidence of necessity were required—for example, if "an employer's good-faith belief that its actions were necessary to comply with Title VII's disparate-impact provision" were "enough to justify race-conscious conduct," then employers might give out race-conscious benefits "even where there is little if any evidence of disparate-impact discrimination" against the recipients of those benefits. See id. at 2674-75. We therefore hold that the strong-basis-in-evidence standard of Ricci applies not only to the question of disparate-impact liability, but also to the further question of whether the employer's race- or gender-conscious action is necessary to remedy that disparate impact. Here too, the employer's belief that its action is necessary to remedy disparate impact, i.e., that the beneficiaries of the action were victims of disparate impact and the action puts them roughly where they would have been in the absence of discrimination, must be objectively reasonable in the above defined sense.
The Government and the Brennan Plaintiffs ask us to go beyond the explicit requirements of Ricci and hold—either in all cases or, alternatively, in those cases where an employer's race- or gender-conscious
The first, and most significant, problem with the arguments of the Government and the Brennan Plaintiffs is that they ask us to do something that Ricci explicitly tells us not to do:
Id. at 2674 (quoting Local No. 93, 478 U.S. at 515, 106 S.Ct. 3063) (citations omitted). The Brennan Plaintiffs are asking us to give them the opportunity to prove, in the course of litigation, that the City Defendants were wrong when they deemed some Offerees likely victims of disparate-impact discrimination, and to hold the City Defendants liable for disparate treatment if any such error was made. But that is just what the Supreme Court has forbidden. The Brennan Plaintiffs are entitled to put those supporting the City Defendants to their proof that the City Defendants had a strong basis in evidence that the challenged testing and recruiting practices were not job-related or that there was a less discriminatory alternative to those practices, and that the City Defendants' actions were necessary to avoid the resulting disparate-impact liability as to particular Offerees—but that is all.
True, the Brennan Plaintiffs and the Government would put the burden of proof on the reverse-discrimination plaintiffs,
The Brennan Plaintiffs and the Government also assert, in the alternative, that their "actual violation" approach applies only in those cases where the employer's voluntary action allegedly violates the contractual rights of those employees who are not the beneficiaries of the race- or gender-conscious action. But there is no basis for limiting Ricci in this way. Indeed, the Ricci Court stated, "we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII." Id. at 2676 (emphasis added). Ricci applies the strong-basis-in-evidence standard to all such conflicts, regardless of whether they involve contractual rights. Significantly, there were contractual rights in Ricci, and the Court never suggested that these would give rise to an exception to its careful balancing of disparate treatment and disparate impact. See id. at 2665 (describing the New Haven firefighters' CBA and its requirements concerning the promotional examinations, including a specific percentage weighting of the written and oral examinations); id. at 2679 (reviewing the job-relatedness of the percentage weighting under the strong-basis-in-evidence standard, not an actual job-relatedness standard).
The Government and the Brennan Plaintiffs cite, in support of their position, several
The Government first relies on United States v. City of Hialeah, 140 F.3d 968 (11th Cir.1998), and Kirkland v. N.Y. State Dep't of Correctional Servs., 711 F.2d 1117 (2d Cir.1983). Both of these cases deal with court-approved employer action, not unilateral employer action. In City of Hialeah, the Eleventh Circuit reviewed a district court's decision not to enter as a consent decree one part of a settlement agreement between the Government and the City of Hialeah. The disputed part of the consent decree purported to abrogate the contractual seniority rights of the city's unionized incumbent police officers and firefighters. The unions had not been invited to participate in the settlement discussions,
Kirkland involved this Court's review of a district court's decision, in a Title VII disparate-impact case brought by private plaintiffs, to enter a class action settlement pursuant to Fed.R.Civ.P. 23(e). See Kirkland, 711 F.2d at 1121. The settlement agreement called for adjustments to the eligibility lists derived from the allegedly discriminatory civil service examination. We affirmed the district court's judgment, and we distinguished the Fifth Circuit's decision in City of Miami on the ground that the non-minority intervenors in Kirkland had no contractual rights that the settlement would alter. Id. at 1126-31. According to the Government, we must permit the Brennan Plaintiffs to show that the disputed tests and recruiting practices in the case before us are not job-related, because here, the Government says, the Brennan Plaintiffs' contractual rights will be impaired.
The problem with this contention and its reliance on City of Hialeah and Kirkland is that, unlike some consent decrees or court-approved class-action settlements, a court's holding of no more than that a private settlement agreement or an employer's unilateral action does not violate § 703(a) does nothing to impair the contractual rights of third parties. Consider a simple example: an employee is fired by her employer. She sues the employer on two theories: (1) the employer violated § 703(a) by firing her because she is female; and (2) the employer breached her employment contract. If a court rejects theory (1), the employee nevertheless remains free to pursue theory (2). Her contractual rights, and any other legal rights she may have against her employer, remain unimpaired. Moreover, it is well settled that no voluntary settlement—whether entered as a consent decree, approved under Rule 23(e), or agreed to in private— can dispose of the claims of a non-consenting third party. See Martin v. Wilks, 490 U.S. 755, 768, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 ("A voluntary settlement in the form of a consent decree between one group of employees and their employer cannot possibly `settle,' voluntarily or otherwise, the conflicting claims of another group of employees who do not join in the agreement."); Local No. 93, 478 U.S. at 529, 106 S.Ct. 3063 ("Of course, parties who choose to resolve litigation through settlement may not dispose of the claims of a third party, and a fortiori may not impose duties or obligations on a third party, without that party's agreement. A court's approval of a consent decree between some of the parties therefore cannot dispose of the valid claims of nonconsenting intervenors; if properly raised, these claims remain and may be litigated by the
The Government compounds its error at the victim-identification stage. In the Government's view, the district court should have applied the burden-shifting framework of International Brotherhood of Teamsters v. United States, 431 U.S. 324, 362-76, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). In Teamsters, the Supreme Court held:
Id. at 362, 97 S.Ct. 1843 (footnote omitted). As for nonapplicants,
Id. at 367-68, 97 S.Ct. 1843 (citation omitted).
Once again, the Government misperceives the procedural posture of the instant case. Teamsters applies when a court is ordering a remedy under § 706(g) of Title VII. But "the question of individual relief [under § 706(g)] does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination." Id. at 361, 97 S.Ct. 1843. In Teamsters and other § 706(g) cases, a § 703(a) violation had been proven and the question was what remedy the court should order. The case before us in its present posture is not about judicially ordered remedies at all. It is about voluntary employer action and its relation to § 703(a). The only question we face is whether the City Defendants have violated § 703(a) by engaging in intentional reverse discrimination against the Brennan Plaintiffs. A § 706(g) case like Teamsters does not speak to that question. That is especially so because the Supreme Court has held that employers acting voluntarily can do more than a court could order them to do under § 706(g). See Johnson, 480 U.S. at 630 n. 8, 107 S.Ct. 1442. But if we were to apply Teamsters here, we would be telling employers precisely that they cannot give individual relief to employees except under the circumstances in which a court could order such relief under § 706(g). Significantly, Ricci itself underscores the crucial distinction between voluntary employer action and court orders under § 706(g). As Ricci states, § 703(a) "is not so restrictive that it allows employers to act only when there is a provable, actual [disparate-impact] violation," 129 S.Ct. at 2676, while an actual violation does have to be proven before a court can impose a remedy under § 706(g). See Teamsters, 431 U.S. at 361, 97 S.Ct. 1843.
The Brennan Plaintiffs, joined by the Government, further assert that, if we do not hold that the contractual seniority rights contained in the Collective Bargaining Agreement trigger an actual-violation-against-actual-victims standard, then "even though a consent decree cannot be entered, those whose contract rights are diminished have no remedy that can either prevent the unapproved settlement contract from being implemented or provide damages to those injured." Brennan Br. at 54. If the Brennan Plaintiffs' assertion were true, it might well give us pause. But the problem with this argument is that "those whose contract rights are diminished" do have another remedy for any breach of contract. That remedy is the CBA's grievance and arbitration process. Instead of using that remedy, the Brennan Plaintiffs seek to bring a contract claim with the wrong plaintiffs in the wrong forum. Claims for the breach of a CBA should be brought by the union before an arbitrator as provided in the CBA, not by individual union members in federal court.
Whatever the outcome of this § 703(a) case, it is clear under long-established Supreme Court precedent that the Brennan Plaintiffs, through Local 891, are not barred from attacking the City Defendants' actions in a contract suit based on the collective bargaining agreement. In W.R. Grace & Co. v. Local Union 759, International Union of United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983), for example, the employer, W.R. Grace, was under investigation by the EEOC for alleged discrimination against blacks and women. W.R. Grace saw its collective bargaining agreement with its employees' union expire in
W.R. Grace, acting under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, sought an injunction against the Union to bar the arbitration of any grievances that looked to relief in conflict with the terms of the conciliation agreement. The Union counterclaimed to compel arbitration, while the EEOC asked, among other things, for a declaratory judgment that the conciliation agreement prevailed over the CBA. While cross-motions for summary judgment were pending, W.R. Grace laid off some male employees in violation of their contractual seniority rights. The district court granted summary judgment to the EEOC and W.R. Grace, holding that the conciliation agreement was paramount. The Union appealed, and while that appeal was pending W.R. Grace laid off some more male employees pursuant to the conciliation agreement. Then the Court of Appeals reversed the district court's decision, and held that W.R. Grace had to arbitrate the grievances. An arbitrator then awarded backpay to some of the male employees, finding that the contract had been breached and that backpay was the appropriate remedy. W.R. Grace again sued under § 301, this time hoping to have the arbitration award set aside.
When this § 301 suit reached the Supreme Court, W.R. Grace and the United States argued that the arbitration award, and the collective bargaining agreement, could not be enforced because they were contrary to public policy. The Court disagreed:
W.R. Grace also argued that enforcing the arbitration award was contrary to the policy of voluntary compliance with Title VII. Id. at 770-71, 103 S.Ct. 2177 (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974)). The Supreme Court expressly rejected that argument too:
Id. at 771, 103 S.Ct. 2177 (citations omitted; emphasis added).
The City Defendants' voluntary implementation of the settlement agreement in our case, like the conciliation agreement in W.R. Grace, cannot preclude enforcement of existing contractual rights contained in a collective bargaining agreement. If any of the Brennan Plaintiffs were to file a grievance with Local 891, and if Local 891 were to pursue that claim to arbitration, a court could not disturb any arbitration award on public policy grounds or because of any conflict with the settlement agreement.
Grievance and arbitration is not simply an alternate remedy for any breach of the collective bargaining agreement; it is the proper remedy. The Supreme Court has rejected constructions of Title VII provisions that "would run counter to the national labor policy." Am. Tobacco Co. v. Patterson, 456 U.S. 63, 77, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). The Brennan Plaintiffs' position entails precisely such a construction. If the Brennan Plaintiffs wish to defend their contractual rights, the appropriate way to do so is not through a § 703(a) reverse-discrimination suit, but instead through the union grievance and arbitration process.
It is, we emphasize, well established that collective-bargaining remedies are separate
The Brennan Plaintiffs are, of course, public employees, and the NLRA therefore does not apply to them. See Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir.2009) (per curiam). But the New York law governing the relationships between public employees and their unions follows the same principles as the NLRA. See, e.g., Bd. of Educ., Commack Union Free Sch. Dist. v. Ambach, 70 N.Y.2d 501, 522 N.Y.S.2d 831, 517 N.E.2d 509, 512-13 (1987) (quoting heavily from the U.S. Supreme Court's decision in Maddox, and holding that "[o]nly when a union has failed to represent an employee fairly—effectively depriving the employee of full use of the agreed procedures—does concern for employees' rights require that they be allowed to pursue grievances beyond the contractual mechanism"). Unless there is a breach of the duty of fair representation, "an individual union member normally lacks standing to enforce the terms of a collective bargaining agreement between the union and the employer." Spano v. Kings Park Cent. Sch. Dist., 61 A.D.3d 666, 877 N.Y.S.2d 163, 167 (2009). It would be inappropriate for us to permit "individual employees," contrary to these state-law policies borrowed from federal law, "to circumvent the grievance procedure in favor of other remedies." Ambach, 522 N.Y.S.2d 831, 517 N.E.2d at 512.
Under the strong-basis-in-evidence standard, the City Defendants need to show three things in order to avail themselves of the defense the Supreme Court recognized in Ricci: (1) that they were faced with a prima facie (or, potentially, a strong basis in evidence of a prima facie case) of disparate impact;
The district court—understandably, as it decided this case before Ricci—erred in its Title VII analysis in several respects. First, the district court applied the "affirmative action" framework of Johnson and Weber, and therefore required for Title VII purposes only a "manifest imbalance" instead of a prima facie case of disparate impact. Second, the district court failed to require of the City Defendants a strong basis in evidence—or, for that matter, any evidence at all—either of non-job-relatedness or a less discriminatory alternative. Third, the district court held that no showing concerning victimhood was required to justify the awards of transfer and TCA seniority, but that a showing of actual victimhood was required for layoff seniority. For all of these aspects of competitive seniority, the court should, instead, have required a strong basis in evidence of victimhood.
Accordingly, and as further described in the discussion below, we remand for the district court to apply this correct standard in the first instance.
Before the district court, it was undisputed that the City Defendants were faced with a prima facie case of disparate-impact testing discrimination for all three of the challenged exams, except that the Brennan Plaintiffs questioned whether there was a prima facie case that Exam 8206 had a disparate impact on Hispanics. See NYC Board III, 448 F.Supp.2d at 425-27. After an "evidentiary hearing," the district court found that such a prima facie case had been made out. See NYC Board IV, 487 F.Supp.2d at 224-32. The Brennan Plaintiffs have not appealed that determination. Accordingly, there is no reason for the district court to revisit it on remand.
The district court held that the City Defendants were not faced with a prima facie case of disparate-impact recruiting discrimination, reasoning that although the Government had shown a disparity between the expected and actual numbers of female and minority test-takers, there was no "evidence connecting the ... disparity to the Board's recruiting practices, a causal link not established by the statistical evidence presented in support of the recruiting claim." NYC Board IV, 487 F.Supp.2d at 234; see also NYC Board III, 448 F.Supp.2d at 446 n. 57. The question of whether the district court erred in this respect is complicated. The Government, for example, wishes to argue to that court that it did. Because the court below reached its decision on this issue before Ricci, and because Ricci raises a question regarding the proper standard to apply, we think it appropriate to remand this issue for further consideration in the light of the still-to-be-determined Ricci standard. We note in particular that even if there was not an actual prima facie case of disparate impact recruiting liability, Ricci
At the same time, we reject the Brennan Plaintiffs' contention that the City Defendants' allegedly discriminatory recruiting practices—word-of-mouth recruiting, and limited advertising—are not prohibited by Title VII even if they cause a disparate impact. Like the other courts that have addressed similar arguments, we are unpersuaded. As the Sixth Circuit has stated, the "assertion that disparate impact analysis is inapplicable to ... recruiting practices is plainly incorrect. The very purpose of Title VII's disparate impact theory is to eradicate barriers which discriminate on the basis of race, gender, religion, and other protected classifications." United States v. City of Warren, 138 F.3d 1083, 1094 (6th Cir.1998) (quotations, modifications, and footnote omitted); see also Thomas v. Wash. Cnty. Sch. Bd., 915 F.2d 922, 924-26 (4th Cir.1990) (a school board violated Title VII through a combination of nepotism, word-of-mouth recruiting, and "the general practice of posting notice of vacancies only in the schools," where minorities were unlikely to see them); United States v. Ga. Power Co., 474 F.2d 906, 925 (5th Cir.1973) ("Word-of-mouth hiring and interviewing for recruitment only at particular scholastic institutions are practices that are neutral on their face. However, under the facts of the instant case, each operates as a `built-in-headwind' to blacks...."). In addition, this court, many years ago, concluded that a prima facie case of disparate impact existed based on "subjective word-of-mouth hiring methods." See Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1016 (2d Cir.1980).
The Brennan Plaintiffs do not deny that recruitment practices qualify as employment practices. Their argument is, essentially, that § 703(a)(2), which makes it illegal for an employer "to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities," does not refer to recruiting, because people who don't even apply for a job because of recruiting discrimination are not "applicants for employment." But, as the Government says, the Supreme Court has all but held that "applicants" includes potential applicants in the § 703(a)(2) disparate-impact context. See Wards Cove, 490 U.S. at 651 & n. 7, 109 S.Ct. 2115 (suggesting that a prima facie case of disparate impact would be made out "if it were found that [a] dearth of qualified nonwhite applicants was due to practices on [an employer's] part which— expressly or implicitly—deterred minority group members from applying for ... positions."); see also Dothard v. Rawlinson, 433 U.S. 321, 330, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977).
The next component of the Ricci strong-basis-in-evidence standard requires that the employer show, for each disputed employment practice, a strong basis in evidence either that the practice was not job-related or that there was a less discriminatory alternative to that practice. See Ricci, 129 S.Ct. at 2678. The district court considered evidence concerning job-relatedness and less discriminatory alternatives neither for the challenged exams, nor for the recruiting practices. See NYC Board III, 448 F.Supp.2d at 426 n. 37. On remand, the district court should determine whether the City Defendants had a strong basis in evidence that each of the three challenged exams was not job-related or had a less discriminatory alternative.
Next, the district court must determine whether the City Defendants had a strong basis in evidence that their race- and gender-conscious actions were necessary to avoid disparate impact liability. See Ricci, 129 S.Ct. at 2677; supra Part V.A.2. As we have explained, that means the City Defendants must have had, at the time they took their race- and gender-conscious actions, a strong basis in evidence that each Offeree was an actual victim of discrimination who received no more than make-whole relief, i.e., a strong basis in evidence that, in such a disparate impact suit, he or she would have been entitled to receive, by a court order pursuant to § 706(g) of Title VII, the race- or sex-conscious relief that he or she received from the City Defendants through the voluntary settlement agreement.
The district court's decision as to job-relatedness and less discriminatory alternatives will affect this step in several important ways. First, if there was no strong basis in evidence that any of the challenged testing and recruiting practices were either not job-related or that there was a less discriminatory alternative to them, then the district court need not make any determinations as to particular Offerees.
Second, and for the same reason, if the City Defendants can show a strong basis in evidence of non-job-relatedness or of a less discriminatory alternative as to one or more of the challenged employment practices, but not as to others, then the City Defendants have violated § 703(a) to the extent they have given relief to Offerees for whom there was no strong basis in evidence that such Offerees were victims of the practice or practices for which there was a strong basis in evidence of non-job-relatedness or of a less discriminatory alternative. For example, if the City Defendants had a strong basis in evidence that their tests were not job-related, but they lacked a strong basis in evidence that their recruiting practices were neither job-related nor that there existed a less discriminatory alternative to these recruiting practices (or could not make out a prima facie/ strong-basis-in-evidence of a prima facie showing of recruiting discrimination), then the City Defendants would, for each Offeree, have to show a strong basis in evidence that that Offeree was a victim of testing discrimination. Essentially, the City Defendants would be required to show a strong basis in evidence that the Offeree took the test, or that the Offeree could successfully have "undertake[n] [his or her] difficult task of proving that [he or she] should be treated as [an] applicant[ ] and therefore [is] presumptively entitled to relief accordingly" under § 706(g). See Teamsters, 431 U.S. at 364, 97 S.Ct. 1843.
Third, if the district court does find a strong basis in evidence of disparate-impact liability, the appropriate extent of relief the City Defendants could have given each Offeree without violating § 703(a) turns on which theory—non-job-relatedness or a less discriminatory alternative— supports the district court's determination. If the Government successfully shows on remand, as it hopes to, that there was a strong basis in evidence that the provisional hiring process was a less discriminatory alternative to a particular hiring practice, then it follows that any Offeree, as to whom there is a strong basis in evidence that the Offeree was a victim of that particular discriminatory practice, properly received retroactive seniority to his or her provisional hiring date. For if an Offeree was hired under the provisional hiring process and that process was a less discriminatory
Alternatively, if there was a strong basis in evidence that an employment practice that had a disparate impact discriminated only because it was not job-related, it becomes much more difficult for the district court to determine how much retroactive seniority the City Defendants could properly give each Offeree without violating § 703(a). Suppose, for example, that the challenged tests were discriminatory; it is nigh-impossible to tell exactly when (if at all) an Offeree would have been hired if the test had not been discriminatory. In that hypothetical world, some Offerees might have passed with flying colors and would then have been the first to be hired from the eligibility lists; others might have found themselves in the middle of the eligibility lists; and still others might still have failed, or might have passed with such a low score that they would have been placed near the bottom of the eligibility lists, where they probably would never have been hired. And, those who passed a test might have been rejected at the interview stage (which is not here being challenged as discriminatory), once or twice, thus having their employment delayed; or three times, resulting in removal from the eligibility list. Finally, they might have failed the "experience papers" stage, and then they might or might not have succeeded in having that decision overturned on administrative appeal. To say the least, "[t]he task remaining for the District Court on remand will not be a simple one." Teamsters, 431 U.S. at 371, 97 S.Ct. 1843. "Th[e] process of recreating the past will necessarily involve a degree of approximation and imprecision." Id. at 372, 97 S.Ct. 1843.
Recreating the past is difficult in the § 706(g) context addressed in Teamsters. It is even more difficult when an employer undertakes voluntary remedial action that is challenged under Ricci and § 703(a). In the § 706(g) context, a court necessarily has already found an actual violation of Title VII. See id. at 361-62, 97 S.Ct. 1843. All the court has then to do is to determine who is an actual victim of that discrimination, and "`recreate the conditions and relationships that would have been had there been no' unlawful discrimination," id. at 372, 97 S.Ct. 1843 (quoting Franks, 424 U.S. at 769, 96 S.Ct. 1251). That process is not easy, because there may be more victims of discrimination than there are vacancies that were discriminatorily refused to them, and their interests must be balanced against "the legitimate expectations of other employees innocent of any wrongdoing." Id. But when an employer undertakes voluntary action to remedy an unintentional disparate impact, the employer has not proven, and does not need to prove, that it has actually violated Title VII. Ricci, 129 S.Ct. at 2674. Instead, the employer must have a strong basis in evidence that it would be liable in a disparate-impact suit unless it took the race- or gender-conscious action. See id. at 2675-76. Once an employer has a strong basis in evidence that it faces disparate-impact liability, the employer must also undertake a recreation of the past that is supported by a strong basis in evidence. Where, as here, incumbent employees subsequently bring a § 703(a) challenge to the employer's race- or gender-conscious action, the court must determine whether there really was a strong basis in evidence to support the employer's recreation of the past.
The district court, deciding this case before Ricci, asked whether each Offeree was an actual victim, instead of whether the City Defendants had a strong basis in evidence that each Offeree was an actual victim. As a result, we must vacate the judgment and remand so that the district court can apply the correct standard. In addition, several of the district court's findings require comment.
First, as discussed above, the district court did not make any individualized determinations as to alleged victims of recruiting discrimination, because it concluded that there was no prima facie case of recruiting discrimination. Because we have remanded on the question of whether, under Ricci, there was a prima facie case/strong-basis-in-evidence of a prima facie case of recruiting discrimination, individualized determinations pertaining to recruiting-discrimination victimhood will be required to the extent that the district court finds (a) that the recruiting defense survives Ricci's prima facie case/strong-basis-in-evidence of prima facie case requirement; and (b) that there was a strong basis in evidence that the challenged recruiting practices either were not job-related or had a less discriminatory alternative.
Second, the district court twice said that the Brennan Plaintiffs "acknowledge that seven of the [Offerees] were victims of discrimination under the testing claims and received appropriate make-whole relief: Lloyd Bailey, Joseph Christie, Belfield Lashley, Gilbert Rivera, Peter Robertin, Felix Torres and Mayra Zephrini (Cintron)." NYC Board III, 448 F.Supp.2d at 419; see also NYC Board V, 556 F.Supp.2d at 208. The Brennan Plaintiffs state, and the Government agrees, that no such concession was made. The district court did not provide a citation to the record to support its assertion, either in 2006 or in 2008. On remand, the district court should either explain the basis for its assertion, deem the matter forfeited, or make individualized strong-basis determinations for each of these individuals.
Fourth, the district court did make actual-victim status determinations for the remaining eight Offerees: Ricardo Cordero, Thomas Fields, Carla Lambert, Vernon Marshall, Angel Pagan, Anthony Pantelides, Sean Rivera, and Luis Torres. The district court found that (1) Cordero and Marshall, each of whom failed an exam, were actual victims and the retroactive seniority they received was lawful, NYC Board V, 556 F.Supp.2d at 209-10; (2) Sean Rivera, who was, against the odds, hired after years of delay because his barely passing score put him at the very bottom of the eligibility list where it was unlikely he would ever be hired, was not an actual victim because his "hypothetical performance [on a nondiscriminatory exam] is purely speculative," as is "what such a score would have yielded in terms of his hire date," id. at 210; and (3) the other five Offerees would not have been hired even under a nondiscriminatory exam because they were not qualified, id. at 210-11. We vacate this portion of the judgment because the district court should have asked whether the City Defendants had a strong basis in evidence that these individuals were victims, not whether the
We note, moreover, that some of the district court's findings in this portion of its judgment are problematic in two other ways. There is a tension between the finding that Rivera's hypothetical performance on a nondiscriminatory exam was speculative, while Cordero's and Marshall's were not. Anyone who received a lower score than he or she would have received on a nondiscriminatory test is a likely victim of discrimination, whether the lower score resulted in outright failure or, instead, delay in being hired. See, e.g., Guardians Ass'n v. Civil Serv. Comm'n, 633 F.2d 232, 248 n. 30 (2d Cir.1980) ("There is no reason why the acceptance of a belated offer of employment should be deemed a waiver of the right to seek redress for a discriminatory delay.").
In addition, the district court erred in a somewhat more subtle way in allocating the burden of proof. The district court cited Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005), an Equal Protection case, for the proposition that "the parties to the [Settlement] Agreement—i.e., the United States and the Board—bear the burden of proof" as to the actual-victim status of each Offeree. NYC Board V, 556 F.Supp.2d at 209. Although under Ricci the § 703(a) reverse-discrimination defendant bears the burden at trial of showing a strong basis in evidence that its race- or gender-conscious actions were necessary to avoid disparate-impact liability, see 129 S.Ct. at 2664 ("[R]ace-based action like the City'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."), it is also true, as the Government points out, that if the Government had pursued its disparate-impact claims to judgment and the district court had imposed a remedy under § 706(g), then the case governing the burden of proof would have been Teamsters, not Johnson v. California. Under Teamsters, as this Court has interpreted it,
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 161-62 (2d Cir.2001).
Fifth, the district court's 2006 opinion addressed the Brennan Plaintiffs' claim that five Offerees "are not members of a protected class because each lacks the requisite cultural or linguistic ties to qualify as Hispanic." NYC Board III, 448 F.Supp.2d at 422. The district court, relying on the EEOC's definition of national-origin discrimination, see 29 C.F.R. § 1606.1,
With these considerations in mind, we remand for the district court to take up the difficult task of determining whether the "hypothetical nondiscriminatory past" that the City Defendants attempted to recreate, when they implemented the settlement agreement, was supported by a strong basis in evidence.
The parties also ask us to review the district court's decisions under the Equal
The Supreme Court has cautioned that, although "[a] fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them," in some cases it is "inadvisable to vacate and remand" for the court below to address a statutory issue where "considerations of judicial economy" strongly favor addressing the constitutional issue on the merits. Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445-47, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). The principle of judicial restraint would not be "vindicated by sending [a] case on what would almost certainly be a brief round trip to the court[ ] below." Id. at 447, 108 S.Ct. 1319. Here, however, the trip to the district court will likely be— perhaps to the able district judge's chagrin—anything but brief. Because the district court did not permit the Brennan Plaintiffs to make any showing as to job-relatedness of, or a less discriminatory alternative to, the challenged employment practices, a factual record will have to be developed. Then the district court will have to decide whether that factual record shows that the City Defendants had a strong basis in evidence. To the extent that the district court finds a strong basis in evidence that the City Defendants faced disparate-impact liability, the court will have to determine whether the City Defendants also had a strong basis in evidence that giving each Offeree retroactive seniority was necessary to remedy any disparate-impact Title VII violation. And then, the district court will have to impose a remedy for whatever reverse-discrimination § 703(a) violations it finds. See Part IX, infra.
Even more important, there is at least some possibility that the constitutional issues will not come back to us.
Moreover, the prudential principle of avoiding unnecessary constitutional adjudication "has been strictly followed where, as in the present case, difficult or far-reaching constitutional issues are raised." Fed. Election Comm'n v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d 45, 52 (2d Cir.1980) (en banc) (per curiam). There are at least two such issues in the case before us. First, the parties call upon us to decide a question the Supreme Court explicitly left open in Ricci: whether "meeting the [Title VII] strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case." 129 S.Ct. at 2676. Second, the Brennan Plaintiffs argue here, as they did below, that no showing of previous unintentional disparate impact can ever satisfy the Equal Protection Clause. Rather, they say, only remedying pervasive and egregious intentional disparate treatment is a "compelling interest" for purposes of strict scrutiny
We, therefore, decline at this time to address the parties' contentions under the Equal Protection Clause.
The Caldero Intervenors argue that the district court should not have certified the Brennan class. They contend that the district court abused its discretion in certifying, and violated due process, by failing to give any party other than the Brennan Plaintiffs an opportunity to brief the issue of class certification. We are not persuaded.
We review class-certification decisions for abuse of discretion. E.g., Robinson, 267 F.3d at 162. Here, when the district court originally certified the class, it acknowledged that the Brennan Plaintiffs were the only party who had had a chance to submit a brief on the issue of class certification. NYC Board III, 448 F.Supp.2d at 444. We agree that it might have been better had the district court waited for full briefing of the issue instead of deciding it in 2006. But the Caldero Intervenors failed to make any Rule 23 argument in their opening brief to us. Their reply brief suggests some Rule 23 issues they would have raised below if they
The Caldero Intervenors' due process claim is also unavailing, for it is too conclusory to avoid forfeiture on appeal. Their opening brief states only that there was a due process violation and cites Nelson v. Adams USA, Inc., 529 U.S. 460, 465, 120 S.Ct. 1579, 146 L.Ed.2d 530 (2000). That is not sufficient to raise the issue on appeal. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998) ("[W]e have concluded that merely ... stating an issue without advancing an argument ... [does] not suffice.").
If a violation of § 703(a) or the Equal Protection Clause is found, the district court will have to decide upon a remedy. Here, the Brennan Plaintiffs attack the remedy imposed by the court below as too narrow, while the Government and the Caldero Intervenors attack it as too broad.
The district court, having found violations of both Title VII and the Equal Protection Clause, did not award any damages to the Brennan Plaintiffs, nor did it issue an injunction. Instead, the court issued the following declaratory judgment:
Attached to the judgment were two schedules listing the "proper" competitive seniority dates for the Offerees.
We do not decide the proper scope of the remedy here. We review a Title VII remedial order issued under § 706(g) for abuse of discretion. "Our function is not to exercise our own discretion, but to determine, in light of the purposes of the Act, whether the district court judge has abused his." Ass'n Against Discrimination in Employment, Inc. v. City of Bridgeport, 647 F.2d 256, 279 (2d Cir. 1981). Similarly, "federal courts have leeway to fashion appropriate relief, and appellate tribunals have accorded district courts broad discretion to frame equitable remedies for constitutional violations so long as the relief granted is commensurate with the constitutional infraction." Cooper v. U.S. Postal Serv., 577 F.3d 479, 496 (2d Cir.2009) (quotation marks and brackets omitted). And, since the scope of the City Defendants' liability is yet to be determined, it would be premature for us to say exactly what the scope of the district court's equitable discretion might be.
It will, of course, be impossible for the district court to fashion a remedy that makes everyone happy, much less whole. To the extent that the City Defendants' employment practices were discriminatory, there were too many victims to count. A few, the Offerees, got permanent appointments and retroactive seniority. Others, like Ruben Miranda, did not. And there
There can be no doubt that the Brennan Plaintiffs, and many of the members of the certified Brennan class, were harmed by the permanent appointments of the Offerees and by the seniority stemming from those appointments. And to the extent the settlement benefited some Offerees unlawfully, redress, in the form of adjustments in seniority, appears justified. But, once the district court has reduced each "unlawful" Offeree's seniority to his or her permanent-appointment date, the value of further modifications to seniority dates begins to dissipate quickly. Such additional modifications place a heavy cost upon innocent Offerees, while conferring possibly speculative benefits upon diffuse victims of reverse discrimination.
In any event, we need not and do not decide exactly what remedy the district court should impose (or to what extent the district court should find the liability on which any remedy would necessarily be premised). It is for the district court to decide what, if any, is the scope of the City Defendants' liability, and then to exercise appropriate equitable discretion in imposing a remedy. In doing so, the district court should explain why it exercised its discretion in the way that it did, so that a
Because the district court in its Title VII analysis reached results inconsistent with the Supreme Court's subsequent decision in Ricci, its judgment must be vacated and remanded—with two exceptions. First, we affirm the district court's grant of class certification. Second, paragraph 4 of the district court's declaratory judgment, which states, "Ciro Dellaporte is not a member of a protected class and, therefore, not entitled to any relief," has not been appealed and therefore must stand.
REENA RAGGI, Circuit Judge, concurring in the judgment:
I join the majority in concluding (1) that the district court judgment can be affirmed insofar as it (a) granted class certification to the Brennan Intervenors, and (b) declared Ciro Dellaporte not a member of a protected class entitled to relief under the challenged settlement, but (2) that the judgment must be vacated in all other respects and remanded for further consideration in light of Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). In reaching this conclusion, I agree with the majority that Ricci is not limited, as the Caldero and Arroyo Intervenors urge, to its particular facts. I also agree that the challenged settlement cannot be characterized as an affirmative action plan, so that we need not consider these intervenors' argument that Ricci does not apply to such plans. With due respect, however, I cannot join in the majority opinion because I think its extended discussion of Title VII jurisprudence generally, and the scope of the Ricci rule in particular, is not required to our decision to remand and yields an abundance of dicta that could confuse future consideration of judgments actually based on Ricci. As the Supreme Court has cautioned, "however helpful it might be for us to adjudge every pertinent statutory and constitutional issue" that could arise in the application of a law or decision, "we cannot properly reach out and decide matters not before us." Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 64 n. 19, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989); see United States v. Tomasi, 313 F.3d 653, 660 (2d Cir.2002) (Sotomayor, J., concurring in the judgment) ("While clarity in the law is always to be desired, judges should not indulge themselves by reaching out to decide issues not squarely before them in order to accomplish this result."); see also PDK Labs., Inc. v. United States D.E.A., 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in the judgment) (identifying as "cardinal principle of judicial restraint" that "if it is not
In Ricci, a case originating in this circuit, the Supreme Court addressed the same question raised here: "whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination." Ricci v. DeStefano, 129 S.Ct. at 2674. Acknowledging that "statutes and principles" seemed to "point in different directions," the Court set itself the "task ... to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them." Id. Toward that end, the Court pronounced the following rule:
Id. at 2677. The Court explained that the requisite strong basis had to be "objective," id., and could not be satisfied by "a few stray (and contradictory) statements in the record," id. at 2680. Further, it applied the strong-basis-in-evidence requirement to all three prongs of disparate-treatment analysis set forth in 42 U.S.C. § 2000e-2(k)(1)(A), see id. at 2677-79 (concluding that (1) "City was faced with a prima facie case of disparate-impact liability," but (2) the evidence raised "no genuine dispute that the [discarded] examinations were job-related," and (3) respondents "lacked a strong basis in evidence of an equally valid, less discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt"). The Supreme Court apparently did not think that district courts required any further guidance to begin applying the stated rule: "Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions." Id. at 2681. Thus, I would simply remand this case for further consideration in light of Ricci without attempting to anticipate or resolve questions that are not now before us and that may never arise in this case. Case-by-case review of judgments actually based on Ricci will afford sufficient opportunity to discuss application of the strong-basis-in-evidence rule in particular circumstances.
The majority's efforts to define the parameters of the Ricci rule in advance of application by the district court raise a number of concerns in my mind. The following are merely illustrative.
First, in order to engage in a detailed discussion of Title VII law generally and Ricci in particular in light of the evidence in this case, the majority finds itself obliged at the outset to decide the standard applicable to review of the factual record. While on an appeal from an award of summary judgment, we usually review the facts in the light most favorable to the non-moving party, see, e.g., Wilson v. C.I.A., 586 F.3d 171, 183 (2d Cir.2009), the majority elects to employ the "clear error" standard applicable after trial, see, e.g., Skoros v. City of New York, 437 F.3d 1, 12 (2d Cir.2006). This choice is grounded more in record confusion, however, than in law. As the majority explains, while the district court disposed of "the vast majority of the relevant issues ... upon cross-motions
Second, the majority concludes that the Brennan Intervenors' claim of disparate-treatment discrimination is properly reviewed according to the three-step analytical framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The extensive discussion of McDonnell Douglas that accompanies this determination is not only unnecessary to our decision to vacate and remand, but it also risks confusing the question of discriminatory intent with the question of whether even actions taken with such intent can be excused by a purpose to avoid disparate-impact liability. McDonnell Douglas analysis was devised to answer the first question but, as a number of the judges of this court have recognized, it is not well-suited to answer the second. See Ricci v. DeStefano, 530 F.3d 88, 99-100 (2d Cir.2008) (Cabranes, J., with Jacobs, C.J., Raggi, Wesley, Hall, and Livingston, JJ.) (dissenting from denial of rehearing en banc) (suggesting that issue should be resolved by mixed-motive analysis); accord id. at 89 (Calabresi, J.) (concurring in denial of rehearing en banc) (agreeing that mixed-motive analysis should have been used but for parties' failure to present argument to district court or original appellate panel).
Significantly, in Ricci, the Supreme Court neither mentioned nor used McDonnell Douglas analysis in holding that plaintiffs were entitled to summary judgment on their claim of discriminatory treatment. See Ricci v. DeStefano, 129 S.Ct. at 2681. Rather, after observing that the City defended against the treatment claim by professing a purpose to avoid disparate-impact liability, see id. at 2673, the Court proceeded to consider the three factors relevant to a disparate-impact claim, see 42 U.S.C. § 2000e-2(k)(1)(A), and concluded that defendants lacked a strong basis in evidence to think that they would have been subjected to such liability had they failed to take the challenged race-conscious, discriminatory actions. See Ricci v. DeStefano, 129 S.Ct. at 2677-81.
No different approach is needed in this case, where defendants do not dispute that their challenged settlement actions were animated by intentional considerations of race, ethnicity, and gender. Their defense, as in Ricci, is that "the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination." Id. at 2674. A decision to remand for reconsideration in light of Ricci does not require us to shoehorn this defense into the second
Nor does our decision to remand require us now to decide whether, despite a strong basis in evidence, a defendant's claimed purpose to avoid disparate-impact liability might be attacked as pretextual. See Ricci v. DeStefano, 129 S.Ct. at 2683 (Alito, J., concurring). Much less need we decide that such a pretext attack occurs at step two of McDonnell Douglas analysis, as the majority indicates.
Because defendants' challenged settlement conduct was plainly animated by race, ethnicity, and gender considerations, here, as in Ricci, any "analysis begins," not with McDonnell Douglas, but "with this premise: [defendants'] actions would violate the disparate-treatment prohibition of Title VII absent some valid defense." Id. at 2673 (emphasis added). Thus, in ordering remand, we can leave it to the able district judge to decide in the first instance whether defendants have the strong basis in evidence necessary to pursue a defense of disparate-impact liability. See id. at 2677.
Third, the majority engages in an extensive discussion of affirmative-action precedent and strongly suggests that such plans would continue to be judged by reference to standards derived from Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), and United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), rather than Ricci. The matter is by no means clear. As the majority recognizes, the Supreme Court in Ricci did not so condition its ruling, signaling that "its core holding applies whenever an employer takes race conscious action `for the asserted purpose of avoiding or remedying an unintentional disparate impact.'" Ante at [104] (quoting Ricci v. DeStefano, 129 S.Ct. at 2677 (emphasis added by majority)). Because this
Fourth, the majority attempts to provide the district court with detailed guidance as to how to apply the Ricci strong-basis-in-evidence test to the record facts. This too is unnecessary to our decision to remand and puts the cart before the horse. However appropriate it may be for an appellate panel to provide instruction when a district court has misapplied Supreme Court precedent, such instruction is premature when a remand is ordered for application of a new Supreme Court decision. That is particularly so here, where, as I noted earlier, the Supreme Court signaled in Ricci that its own opinion was intended to provide the necessary "guidance" by "clarif[ying] how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions" of Title VII. Ricci v. DeStefano, 129 S.Ct. at 2674, 2681. In these circumstances, we should let Ricci speak for itself on remand without added gloss from this panel.
In particular, I question the majority's attempt to "hold" in the absence of any judgment applying Ricci, what is and is not sufficient to satisfy the strong-basis-in-evidence requirement. Ante at [109-10]. Holdings consist of determinations necessary or pivotal to a decision; judicial statements that are unnecessary to the decision in the case are mere dicta. See United States v. Rubin, 609 F.2d 51, 69 n. 2 (2d Cir.1979) (Friendly, J., concurring) ("A judge's power to bind is limited to the issue that is before him; he cannot transmute dictum into decision by waving a wand and uttering the word `hold.'"); see also Black's Law Dictionary 800 (defining "holding"), 1177 (defining "obiter dictum") (9th ed.2009). Our decision to remand this case for application of Ricci's strong-basis-in-evidence standard does not require us now to pronounce principles of sufficiency for identifying when that standard is met.
I am, moreover, dubious of the majority's pronouncement that, "under Ricci, a `strong basis in evidence'" requires "less than the preponderance of the evidence that would be necessary for actual liability." Ante at [110]. To be sure, in Ricci, the Supreme Court stated that the strong-basis-in-evidence requirement is "not so restrictive that it allows employers to act only when there is a provable, actual violation." Ricci v. DeStefano, 129 S.Ct. at 2674. But there is a difference between the preponderance finding of a violation made by a jury after trial and a court's identification of sufficient evidence to permit a preponderance finding at trial, a difference that I fear may be lost in the majority's broad "holding." A party who cannot produce sufficient record evidence to support a possible preponderance finding by a jury on an issue on which the party bears the burden is going to wind up with summary judgment awarded against him. At some point, this court may have to consider whether a "strong basis in
Fifth, the majority also discusses in some detail various challenges that the Brennan Intervenors might raise to defendants' disparate-impact-liability defense. Again, this discussion is unnecessary to our decision to remand. Further, it is premature now to rule that certain challenges could not defeat the defense in this case, or to imply that certain evidence is inadmissible. These matters are best decided in the first instance by the district court. Certain challenges may be resolved on remand, whether as a matter of law or fact, in ways that will narrow or even eliminate the need for further appellate review.
As indicated at the outset, these concerns are illustrative and not exhaustive. Nevertheless, they suffice to explain why I join in the Court's decision to affirm in part and to vacate and remand in part without also joining in the majority opinion. Rather, I would simply conclude (1) that the district court judgment can be affirmed insofar as it (a) granted class certification to the Brennan Intervenors, and (b) declared Ciro Dellaporte not a member of a protected class entitled to relief under the challenged settlement, but (2) that the judgment must be vacated in all other respects and remanded for further consideration in light of Ricci.
Mathirampuzha, 548 F.3d at 78-79 (citation and quotation marks omitted). Under this standard, genuine issues of material fact, to be addressed by the district court, remain as to the TCAs as well: did the Brennan Plaintiffs suffer significant delays in obtaining TCAs as a result of the City Defendants' actions, and if so, were they sufficiently significant as to constitute an adverse employment action?
Q: Did you undertake any individualized inquiry to determine whether they'd been victims of recruiting discrimination or testing discrimination?
A: No.
. . .
The Court: You never discussed with anybody who was an actual victim at that time.
The Witness: No, we never discussed it with each other.
The Court: You never discussed it with each other. Okay.
The Witness: And I never discussed it with any potential offeree.
The Court: Okay.
Q: Did the ... United States ... in this process ever jointly pursue any individualized inquiry to determine whether each offeree was, in fact, a victim?
A: No.
And there is every reason for the union to participate on behalf of its members. Not the least of these is that, if the case goes to litigation, the union runs the risk that the Government will prove a Title VII violation and then the court, acting pursuant to Teamsters and Franks, could issue a § 706(g) remedial order which infringes on the CBA more, and compensates incumbent employees less, than what the union could have achieved in a negotiated settlement. Moreover, this is so regardless of whether there is any allegation that the union itself has violated Title VII, for "an award of retroactive seniority is appropriate even if there is no finding that the union has also illegally discriminated." Zipes v. Trans World Airlines, 455 U.S. 385, 400, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982).
The Brennan Plaintiffs additionally contend that employers cannot be held liable for failure to do something, as against doing something. This is another distinction without a difference. Although better advertising, or additional word-of-mouth recruiting targeted at minorities and women, might cure a racial and gender disparity among job applicants, the problematic employment practice is really the combination of what the employer is doing (telling white males about the job opportunity) and what the employer is not doing (not telling others). Besides, any employment practice can be described in a positive or negative way. For example, the high-school diploma requirement in Griggs could be described as "hiring only individuals with high-school diplomas" or as "failing to consider applicants without high-school diplomas."
Moreover, under Ricci, the district court might be required to consider the effect of any legal, rather than factual, uncertainty with respect to the retroactive application of the 1991 amendments. If, that is, an employer takes a race- or sex-conscious action because of a strong basis in evidence that it will be liable for disparate impact under an interpretation of the disparate-impact provisions of Title VII that later is held to be erroneous, must the employer then be liable for disparate treatment? If not, then how strongly supported must the erroneous legal conclusion have been at the time of the employer's race- or sex-conscious action, in order for the employer to avoid liability? Cf. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, ___ U.S. ___, 130 S.Ct. 1605, 1612, 176 L.Ed.2d 519 (2010) ("[W]hen Congress has intended to provide a mistake-of-law defense to civil liability, it has often done so more explicitly than here."). Because the district court may well find that a strong basis in evidence of job-relatedness or of a less discriminatory alternative exists (or does not exist) for the relevant practices regardless of whether the court uses the pre-1991 or post-1991 standard, we deem it inappropriate at this time to address further these difficult retroactivity questions.
