HARDIMAN, Circuit Judge.
This appeal arises under Title VII of the Civil Rights Act of 1964, as amended in 1991. At issue is the legality of a residency requirement for firefighter candidates imposed by North Hudson Regional Fire and Rescue (North Hudson), a fire department comprising five New Jersey municipalities. The United States District Court for the District of New Jersey held the residency requirement invalid because it has a disparate impact on African-American applicants. North Hudson and six Hispanic firefighter applicants appeal the District Court's judgment.
New Jersey state law has regulated the hiring of firefighters for nearly a century. The current governing statute, the New Jersey Civil Service Act (Civil Service Act), was enacted in 1986 and establishes rules and procedures governing public employment that are intended to "advance employees on the basis of their relative knowledge, skills and abilities." N.J. Stat. Ann. 11A:1-2. Among other things, the Civil Service Act requires New Jersey municipalities to fill civil service jobs, including firefighter, pursuant to a process controlled by the New Jersey Department of Personnel (NJDOP).
In some New Jersey municipalities, residency requirements are not only permitted, but judicially mandated. In 1977, the United States Department of Justice sued
Against this historical backdrop, North Hudson was formed in 1998 as a consortium of five municipalities: Guttenberg, North Bergen, Union City, Weehawken, and West New York. At the time North Hudson was formed, each of its member municipalities imposed a residency requirement, so North Hudson continued that practice. The validity of North Hudson's residency requirement is the subject of this appeal.
Like all New Jersey fire departments, North Hudson is subject to the Civil Service Act, which requires it to hire pursuant to statewide NJDOP testing and ranked lists derived therefrom.
As of 2000, the population of North Hudson's member municipalities was
When this litigation began, North Hudson sought to fill thirty-five to forty new firefighter positions. The six Hispanic applicants who intervened in this case (Intervenors) earned passing scores on the 2006 NJDOP firefighter exam and satisfied North Hudson's residency requirement. Based on their scores on the 2006 exam, Intervenors were ranked twenty-first, twenty-fifth, twenty-sixth, forty-fifth, forty-ninth, and seventieth on North Hudson's Residents-Only List. Given their rankings, Intervenors claim they would have been offered a firefighting job.
Like that of many other New Jersey fire departments, the racial composition of North Hudson has been the subject of legal challenge. In 2001, thirteen Hispanic firefighters sued North Hudson for disparate-impact discrimination in promotions. See Rodriguez v. N. Hudson Reg'l Fire & Rescue, No. 01-3153 (D.N.J. filed July 2, 2001). After almost four years of litigation, the parties settled the case. In the settlement agreement (Rodriguez Settlement), North Hudson agreed to promote four of the plaintiffs, waive length-of-service prerequisites for registering for the next chief/officer exam, and advertise in Spanish and English media to "attract additional qualified applicants of Hispanic/Latino origin." The Rodriguez Settlement imposed no other hiring obligations on North Hudson, however. Although the Rodriguez Settlement dealt primarily with promotional practices, the advertising initiatives may have increased Hispanic hiring. Whereas in 2001 the Rodriguez plaintiffs alleged that only 7% of North Hudson firefighters were Hispanic, in 2007, 38% of new hires were Hispanic, and by 2008, the percentage of Hispanic North Hudson firefighters had climbed to 19%. None of the Plaintiffs or the Intervenors in this appeal was a party to the Rodriguez case.
In April 2007, the Newark Branch of the NAACP, the New Jersey Conference of the NAACP, and firefighter candidates Allen Wallace, Lamara Wapples, and Altarik White (collectively, NAACP Plaintiffs) sued North Hudson alleging that its residency requirement causes a disparate impact on African-American applicants. In February 2009, the District Court certified the NAACP Plaintiffs' class and preliminarily enjoined North Hudson from hiring firefighters from its then-current eligibility list, which included only those candidates who were residents of the North Hudson municipalities when they took the statewide exam. NAACP v. N. Hudson Reg'l Fire & Rescue, 255 F.R.D. 374 (D.N.J. 2009). North Hudson filed an interlocutory appeal.
While that appeal was pending, in June 2009, the Supreme Court decided Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009), and in September 2009, the District Court permitted six Hispanic firefighters eligible for hiring based on North Hudson's then-current list to intervene. Because Ricci involved the interplay between disparate-impact and disparate-treatment claims, we remanded the case sua sponte to the District Court in March 2010.
On April 23, 2010, the District Court found that North Hudson's residency requirement
After the preliminary injunction was vacated, the parties moved for summary judgment. The NAACP Plaintiffs sought judgment on their disparate-impact claim and a permanent injunction against North Hudson's use of the Residents-Only List. North Hudson argued that the NAACP Plaintiffs failed to establish a causal relationship between the residency requirement and the statistical disparity in its African-American employment ratio. Alternatively, North Hudson claimed it had established the business-necessity defense. In addition, North Hudson and Intervenors claimed that Ricci provided a separate defense, and Intervenors sought attorney's fees for their role in causing vacatur of the District Court's February 2009 preliminary injunction.
The District Court granted the NAACP Plaintiffs' motion, permanently enjoined North Hudson's use of its Residents-Only List, and denied Intervenors' request for attorney's fees. NAACP v. N. Hudson Reg'l Fire & Rescue (North Hudson), 742 F.Supp.2d 501 (D.N.J.2010).
In adjudicating the parties' motions for summary judgment, Judge Debevoise conducted an extremely thorough analysis of the facts and expert reports. Because disparate-impact claims depend heavily on statistical proof of discriminatory effects, we review the experts' findings and the District Court's conclusions at length.
The NAACP Plaintiffs presented the expert report of Dr. Richard Wright to establish their prima facie case of disparate-impact discrimination. In his 2008 report, Wright identified disparities between the percentage of qualified African-Americans in the relevant labor market, which he defined in several alternative ways, and the percentage of African-Americans employed by North Hudson.
The District Court first considered Wright's definition of the relevant labor market. The U.S. Census Bureau reported that in 2003 the average daily commute was twenty-four minutes nationally and twenty-nine minutes for North Hudson residents. By performing a geographic information system analysis, Wright concluded that most people living within a ten-mile radius of North Hudson's center would have no more than a twenty-nine-minute commute. Wright also opined that North Hudson could reasonably be expected to draw its employees from across New Jersey because state-regulated workers tend to search for jobs statewide. Wright concluded that "the appropriate labor market from which North Hudson may be expected to draw its protective service personnel is either the whole state or the neighboring three-county area." The District Court accepted this definition because it was "based in sound reasoning, and because [North Hudson] did not dispute" it, present evidence to contradict it, or suggest an alternative definition. North Hudson, 742 F.Supp.2d at 516.
The District Court next considered whether Wright's comparisons demonstrated
Wright's results in this comparison were compelling. In the Tri-County Area, 37.4% of protective service positions are held by African-Americans. Based on this percentage, one would expect 121 North Hudson firefighters to be African-American. Similarly, 20% of protective service workers statewide are African-American, so, based on that percentage, one would expect North Hudson to employ sixty-five African-American firefighters. The differences of 13 and 8.76 standard deviations in these comparisons leave "virtually no probability" that the discrepancies are the result of chance. Wright's calculations indicated that African-Americans are "significantly under-represented" in North Hudson. Given the near impossibility that the disparities are caused merely by chance, Wright concluded: "[T]his likely results from discriminatory hiring practices."
After reviewing Wright's opinion, the District Court examined the report of North Hudson's expert, Dr. Bernard Siskin, to determine whether his findings undermined or contradicted the prima facie statistical evidence presented by Wright.
Siskin calculated the expected number of African-Americans in North Hudson using the scores and rankings of actual applicants in the 1999, 2002, and 2006 NJDOP testing cycles. Siskin created new eligibility lists using final test scores and veteran status to rank the candidates as though the candidate pool had included: (1) Hudson County, (2) the Tri-County Area, (3) a five-mile radius, or (4) a ten-mile radius. As the District Court noted, "[u]sing the actual DOP test results obviously accounts for the requirement that the population being compared is `qualified.'" Id. Although expanding the eligibility list to include Hudson County or a five-mile radius added only one to two African-Americans to the top thirty-five candidates depending on the exam year, when the list was expanded to include the Tri-County Area, which was the relevant labor market according to the District Court, six to twelve African-American applicants placed in the top thirty-five, and six to fifteen placed in the top fifty. Yet, the actual Residents-Only Lists from those years included no African-Americans in that range. Overall gains in the top ninety also were substantial, with expansion to include the Tri-County Area adding eleven to nineteen African-American candidates. Thus, the District Court found that including the Tri-County Area caused "a significant number of African Americans [to be] added to the DOP lists." Id. Siskin's report noted that these gains came primarily at the expense of Hispanics, who moved down, often significantly, in the hypothetical expanded-list rankings. Siskin concluded that Caucasians would benefit most from an expansion of North Hudson's hiring area.
Siskin acknowledged that his original hypothetical rankings assumed two things: "(i) that [non-resident candidates] would necessarily prefer appointment to [North Hudson] compared to any other jurisdiction they sought; and (ii) that they would be as likely to receive an appointment offer from [North Hudson] as from any other jurisdiction." Because Siskin considered these assumptions unrealistic, he next calculated the hypothetical rankings omitting all non-resident candidates who received appointments elsewhere during that hiring cycle, under the premise that they would have accepted those appointments instead of continuing to compete for a job with North Hudson.
As the District Court noted, "[t]he only tables that do not predict any added African Americans are Tables 7-2006 and 8-2006." Id. at 518. Those 2006 tables showed the most substantial change, but they also excluded a class of candidates included in the 1999 and 2002 lists. Table 7-2006 contains calculations which "exclud[ed] those appointed or having a better rank outside [North Hudson's] local area." This additional exclusion eliminated candidates who ranked "substantially better" on another municipality's eligibility list. By Siskin's definition, a candidate had a "substantially better" rank elsewhere if his rank on the North Hudson expanded list was at least twice his best rank on another municipality's list (where lower numbers mean higher rankings on the eligibility lists). "That is, a candidate ranked 12th on the expanded [North Hudson] list with a `best' rank order number of six (6) or better on some other list would be excluded from the expanded [North Hudson] list." Likewise, a candidate who ranked third on the North Hudson list but first on another municipality's list would be omitted, even though he had an identical chance of being hired by North Hudson under the Rule of Three. The candidates remaining on the hypothetical expanded lists for 2006 were then re-ranked. The result for the Tri-County expanded list was that no African-Americans were added to any of the ranges measured; all of them had a "substantially better" rank in another municipality.
The District Court doubted the value of the 2006 tables:
Id. at 518. Ultimately, the District Court concluded that the "assumption in 8-2006 far over-emphasizes the impact of hiring in other jurisdictions on the number of African American applicants who would be highly ranked on the Tri-[C]ounty lists" and found that the 2002 and 1999 results were "more compelling."
Siskin's overall assessment of the impact on African-Americans was that "with the exception of the larger expanded (i.e., Tri-County) area, there is a trivial increase in African Americans."
In the District Court's view, Wright's statistical evidence sufficed to establish a prima facie case of disparate impact, including both substantial statistical disparities and a causal link to North Hudson's residency requirement. The District
The District Court next considered North Hudson's business-necessity defense and rejected it because living in North Hudson was not a "mandatory minimum requirement" for familiarity with local geography, swift response times, or a bilingual firefighter force and because less discriminatory alternative means of achieving these goals were apparent. Id. at 522-25. It also found the residency requirement was not compelled by the Rodriguez Settlement. Id. at 523-24. Nor did the residency requirement ensure that North Hudson firefighters would live in the North Hudson municipalities after they were hired. Id. at 523. Finally, the District Court determined that the Supreme Court's decision in Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009), did not afford North Hudson an alternative defense because the expansion of its hiring list, to the detriment of Intervenors, would not be "because of race-base[d] statistics alone; ... [but rather] because the residency requirement causes a disparate impact that is not justified by business necessity." North Hudson, 742 F.Supp.2d at 528. North Hudson and Intervenors filed this appeal.
The District Court exercised jurisdiction over the NAACP Plaintiffs' Title VII claims pursuant to 28 U.S.C. § 1331. We have jurisdiction over this appeal under 28 U.S.C. § 1291.
We exercise plenary review over a district court's summary judgment decision, and we "apply the same test required of the district court." Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). On a motion for summary judgment, the movant must show that there is "no genuine issue as to any material fact," such that he is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). To be material, a fact must have the potential to alter the outcome of the case. See Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir.2006). As the District Court correctly stated, "[d]isputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." North Hudson, 742 F.Supp.2d at 509. Faced with a summary judgment motion, the court must view the facts "in the light most favorable to the nonmoving party." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). After the movant shows that there is no genuine issue for trial, the non-moving party then bears the burden of identifying evidence that creates a genuine dispute regarding material facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Ultimately, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks omitted).
We review a district court's grant of a permanent injunction for abuse of discretion. United States v. Bell, 414 F.3d 474, 478 (3d Cir.2005). An abuse of
Title VII is intended to ensure that "the workplace [is] an environment free of discrimination, where race is not a barrier to opportunity." Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2674, 174 L.Ed.2d 490 (2009). It endeavors "to promote hiring on the basis of job qualifications, rather than on the basis of race or color." Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (quoting 110 Cong. Rec. 7247 (1964)). In furtherance of this objective, Title VII 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... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2). Even "practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as `disparate impact')" are unlawful. Ricci, 129 S.Ct. at 2672. "The touchstone is business necessity." Griggs, 401 U.S. at 431, 91 S.Ct. 849. "If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited." Id.
Title VII's disparate-impact provision prohibits employment practices that have the unintentional effect of discriminating based on race. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988); Newark Branch, NAACP v. City of Bayonne, N.J., 134 F.3d 113, 121 (3d Cir.1998). The statute provides:
42 U.S.C. § 2000e-2(k)(1)(A)(i). "By enacting § 2000e-2(k)(1)(A)(i), Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer's motives and whether or not he has employed the same practice in the past." Lewis v. City of Chicago, Ill., ___ U.S. ___, 130 S.Ct. 2191, 2200, 176 L.Ed.2d 967 (2010).
Disparate-impact litigation proceeds in three steps. First, a plaintiff must establish a prima facie case by "demonstrat[ing] that application of a facially neutral standard has caused a `significantly discriminatory hiring pattern.'" Bayonne, 134 F.3d at 121 (quoting Newark Branch, NAACP v. Town of Harrison, N.J., 940 F.2d 792, 798 (3d Cir.1991)). This prima facie showing requires the plaintiff to prove a significant statistical disparity and to "demonstrate that the disparity [he] complain[s] of is the result of one or more of the employment practices that [he is] attacking." Id. (quoting Wards Cove
The employer may defend against a prima facie showing of disparate impact only by demonstrating that the challenged practice is "job related for the position in question and consistent with business necessity." See 42 U.S.C. § 2000e-2(k)(1)(A)(i). We have interpreted the business-necessity defense to mean that employers may not use criteria which have a discriminatory effect unless those criteria define the minimum qualifications necessary to perform the job.
Finally, a plaintiff can overcome an employer's business-necessity defense by showing that alternative practices would have less discriminatory effects while ensuring that candidates are duly qualified. See 42 U.S.C. § 2000e-2(k)(1)(A)(ii), (C). Proving a less discriminatory, viable alternative requires supporting evidence. One witness's testimony identifying potential alternatives, standing alone, "does not raise a genuine issue of material fact that [the alternative is] available to the [employer] ... and that [it] would have produced less adverse impact." Ricci, 129 S.Ct. at 2680.
Statistical disparities alone can raise an inference of causation, but only when those disparities are substantial and the statistical evidence is reliable. Bayonne, 134 F.3d at 121. In showing statistical disparity, the relevant comparison is "between the racial composition of [the at-issue jobs] and the racial composition of the qualified ... population in the relevant labor market." Id. (alterations in original) (quoting Wards Cove, 490 U.S. at 650, 109 S.Ct. 2115) (internal quotation marks omitted).
In Harrison, we considered a residency requirement's effect on minority firefighter and police officer applicants. We found significant statistical proof of disparate impact, even though the African-American population of Harrison was only 0.2%, because no African-American had ever held a uniformed position while Harrison's private work force was 22% African-American. 940 F.2d at 796. "[W]here black persons represent[ed] 0% of Harrison's workforce, it matter[ed] little whether there [wa]s a disparity of 30%, 20% or even 10% or 15%." Id. at 800 (quoting NAACP, Newark Branch v. Town of Harrison, N.J., 749 F.Supp. 1327, 1340 (D.N.J. 1990)). Potential causes for the disparity, other than the residency requirement, had been eliminated. "There [we]re multiple means to travel quickly between most of Essex County and Harrison," and "qualified black persons would seek positions with Harrison's municipal government" if the residency requirements were removed, so the disparity could not be attributed to a lack of interest or an unwillingness to commute. Id. at 797 (quoting Harrison, 749 F.Supp. at 1341) (internal quotation marks omitted).
In Bayonne, we also examined the characteristics and degree of statistical evidence required to make out a prima facie disparate impact claim. In response to a lawsuit filed by the NAACP, Bayonne suspended its residency requirement for four years. Bayonne, 134 F.3d at 115. During the suspension, the number of African-American firefighters in Bayonne did not increase, and the number of African-American police officers actually decreased. Id. When the four-year suspension ended, Bayonne reinstated its residency requirement. In its challenge to the reinstatement, the NAACP presented statistical evidence showing that African-Americans comprised only 2.6% of the non-residents and only 5.5% of the residents hired as firefighters during the suspension of the residency requirement. Id. at 118. Compared with the 3.5% African-American representation in Bayonne's municipal workforce, however, it "would [have been] surpris[ing] if that [difference] was statistically significant." Id. at 118 n. 10 (third alteration in original) (quoting the NAACP's expert). Nevertheless, the NAACP's expert opined that the residency requirement was discriminatory. Id. The district court denied the NAACP's request to enjoin the residency requirement, and we affirmed. Id. at 115. As the district court explained, real statistical data were lacking:
Id. at 119 (emphasis added).
On appeal, we concluded that causation was lacking because four years of data showed no change in the African-American employment ratio while the residency requirement was suspended. Moreover,
Unlike in Bayonne, the NAACP Plaintiffs have provided ample evidence of not only a statistical disparity, but also a causal connection. In more than a decade since North Hudson's inception, it has hired only two African-American firefighters (0.62% of its firefighters), despite an African-American population of 3.4%. For the reasons we explained in Harrison, a minority workforce representation that low suggests discrimination.
That suggestion is borne out by both expert reports in this case. They prove NAACP Plaintiffs' prima facie case, and they do so with non-speculative data that do not suffer from the deficiencies of the expert testimony in Bayonne. Wright's comparison of the proportion of African-Americans employed in Tri-County Area protective service positions (37.4%) with the proportion of African-Americans employed as firefighters by North Hudson (0.62%) shows a disparity that raises an inference of causation. It suggests that North Hudson should employ sixty-five African-American firefighters, and it employs only two.
Although North Hudson now contests Wright's definition of the relevant labor market to include the Tri-County Area and even the entire state of New Jersey, it offers no alternative analysis to explain why the market should be defined more narrowly. On the other hand, as the District Court acknowledged, Wright bolstered his definition of the labor market by pointing to commute times that do not exceed the average for North Hudson residents and the tendencies of those in this type of employment to seek positions statewide.
North Hudson also objects to Wright's definition of the "qualified" population. North Hudson points out an obvious flaw: neither the entire African-American population nor the whole pool of African-American state and local government employees can be considered qualified for a firefighter position. In Siskin's words, Wright "never attempts to control for differences in the likelihood of being qualified for the position, as determined by the results of the [NJDOP] process for firefighter eligibility." See Bayonne, 134 F.3d at 123 n. 21 ("[L]ooking to the general population is not necessarily sufficient in situations ... where the claim involves jobs with `special qualifications.'" (citing Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 309, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977))). But this argument is unavailing to North Hudson on appeal because the District Court agreed with Siskin on this point and instead based its summary judgment on the protective services comparison.
Wright's analysis of full-time protective service employees—though imperfect because it includes several non-analogous positions—fairly, and as nearly as possible,
The full-time protective service positions are a sufficient proxy even though firefighting is a specialized job. Many of the full-time protective service positions require emergency medical training, physical fitness, calmness under pressure, and strategic decisionmaking in emergencies. Though none of the included positions— other than firefighter, of course—encompasses the full breadth of special skills required for firefighting, the law does not demand a perfect analog. Cf., e.g., Dothard v. Rawlinson, 433 U.S. 321, 330-31, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) (finding disparate impact based on a comparison of height and weight requirements for prison guards with height and weight statistics based on national data and explaining that "reliance on general population demographic data was not misplaced where there was no reason to suppose that physical height and weight characteristics of Alabama men and women differ markedly from those of the national population"); Harrison, 940 F.2d at 799-800 (finding disparate impact based on a comparison of the percentage of African-Americans in Harrison's public uniformed positions with that in its private workforce). We agree with the District Court that the statistics yielded by Wright's comparisons still show a sufficient statistical disparity to establish a prima facie case of disparate impact.
As the District Court concluded, North Hudson's own expert not only failed to create a real dispute regarding Wright's findings, but himself bolstered the causal link between the residency requirement and the disparity demonstrated in Wright's calculations. For each of the three years studied, Siskin's tables indicate that if North Hudson had hired from a Tri-County List rather than its Residents-Only List, it would almost certainly have hired many more African-Americans. If North Hudson's recent hiring needs are any indication, it might seek to hire thirty-five to forty firefighters in a given exam cycle. Siskin's hypothetical lists for the Tri-County Area predicted that between eight and sixteen of those hires would have been African-American in 1999, 2002, and 2006. Even assuming that African-Americans were more likely to receive and accept firefighter positions in their hometowns during those years, six to twelve African-American candidates still would have placed within the top thirty-five candidates available to North Hudson.
In light of the ample evidence of record, including Siskin's other expanded lists, the District Court did not err in concluding that no genuine dispute of material fact exists as to whether North Hudson's residency requirement creates a disparate impact on African-American firefighter applicants.
Having found no error in the District Court's conclusion that the NAACP Plaintiffs proved a prima facie case of disparate impact, we turn to its rejection of North Hudson's defense that business necessity justifies the residency requirement. As outlined above, we have interpreted the business-necessity defense to apply only when an employer can show that its challenged hiring criteria define minimum qualifications for the position. See Lanning, 181 F.3d at 481, 489 (holding that strong aerobic ability was not a necessary qualification for transit officers when many incumbent officers who never passed the challenged test later received commendations and promotions). Even if business necessity is shown, the plaintiff will prevail if there are less discriminatory alternative means of selecting for the crucial qualification. See, e.g., id. at 485.
In Harrison, we rejected the town's purported justifications for hiring firefighters from a residents-only eligibility list. We held that although emergency preparedness, i.e., the speed with which an employee firefighter could respond to an emergency call, was potentially crucial to the position, there were alternative ways to ensure short response times, such as establishing an acceptable response distance. Harrison, 940 F.2d at 804-05. We also held that ensuring loyalty to the Harrison community was not an essential qualification. See id. at 805. Similarly, we rejected Harrison's plea to avoid an expensive and time-consuming increase in applications because that inconvenience was not
In the District Court, North Hudson reprised several of the arguments we found wanting in Harrison. North Hudson claimed that residency is essential to its fire department operations because it: (1) increases the likelihood that its firefighters will be able to respond to emergencies more quickly because they will be more familiar with the buildings and streets in the served community; (2) comports with the terms of the Rodriguez Settlement; (3) increases the number of Spanish-speaking firefighters in a department that serves a 69% Hispanic population; and (4) fosters community pride.
We have no quarrel with the notion that a critical aspect of firefighting is the ability to respond quickly and that familiarity with the streets and buildings of a locale is important to achieving that goal. But this valid point cannot be reconciled with the fact that North Hudson does not require its firefighters to reside in the North Hudson municipalities after they are hired. In fact, in 2008, only 34% to 36% of North Hudson firefighters were residents. See North Hudson, 742 F.Supp.2d at 523 & n. 18.
Nor does the Rodriguez Settlement provide a valid business justification for the residency requirement. Although that settlement encourages minority hiring and promotion, it does not compel the use of a residency requirement; it merely requires targeted advertising of exams. The other provisions of the Rodriguez Settlement were satisfied years ago when certain remedies were provided to the particular plaintiffs in that case. Furthermore, North Hudson cannot claim that the residency requirement is part of its attempt to comply with the broad purpose of the Rodriguez Settlement because the residency requirement was in place before that lawsuit was filed.
As for employing a certain number of Spanish-speaking firefighters in a region that is 69% Hispanic, this is a plausible justification in the abstract. But North Hudson failed to establish that the residency requirement leads to a greater number of Spanish-speaking firefighters. Rather, this purported justification is a "conceivable" basis, which is insufficient to invoke the business-necessity defense. See Harrison, 940 F.2d at 804. Moreover, as the District Court noted, there are non-discriminatory ways to ensure the hiring of Spanish-speaking firefighters. Rather than seek out Spanish-speakers by making the imprecise assumption that North Hudson residents are more likely to speak Spanish, North Hudson could, and actually does, seek out bilingual candidates.
Finally, as Harrison and the business-necessity standard itself make clear, community pride is not a sufficient justification for a discriminatory hiring practice.
In sum, the District Court properly concluded that North Hudson's purported business-necessity arguments fail. They are not tied to minimum firefighter qualifications in North Hudson and, in some cases, less discriminatory alternatives are available.
North Hudson argues that, even if it cannot show business necessity, the Supreme Court's decision in Ricci offers it safe harbor. Ricci established a defense for defendants in disparate-treatment suits who can show a "strong basis in evidence" to believe that failing to engage in the discriminatory action being challenged would lead to disparate-impact liability.
In Ricci, 118 firefighters in New Haven, Connecticut, took lieutenant and captain examinations to qualify for promotions. 129 S.Ct. at 2664. When the exam results showed that no African-American candidate was eligible for promotion for failure to place in the top ten of either exam, the city faced competing threats of suit. Id. at 2664-66. Several minority firefighters claimed the exam results evidenced a discriminatory test. Id. at 2664. Others threatened litigation if the city discarded the results or denied promotion to the top performers on the exam. Id. After New Haven Civil Service Board hearings and discussions with city attorneys, New Haven decided to nullify the exam scores. Id.
The white firefighters who were denied promotions following the nullification of the test results sued, alleging disparate treatment. The district court granted and the Second Circuit upheld summary judgment for New Haven. Id. at 2671-72. The Supreme Court reversed because New Haven's nullification of the test results was a decision based on race, namely "too many whites and not enough minorities would [have been] promoted were the lists to be certified." Id. at 2672-73 (quoting Ricci v. DeStefano, 554 F.Supp.2d 142, 152 (D.Conn.2006)).
The Court considered "whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination." Id. at 2674. The Court rejected the argument that an employer's mere good-faith belief that it must discriminate against individuals to avoid disparately impacting a protected group should be sufficient to shield the employer from disparate-treatment liability. Id. at 2675 ("[W]hen Congress codified the disparate-impact provision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-faith effort to comply with the new, disparate-impact provision in subsection (k)."). Instead, the Court adopted the "strong basis in evidence" standard, which excuses an employer from disparate-treatment liability only if the employer shows a credible possibility of disparate-impact liability if it were not to engage in the intentional discrimination being challenged. Id. at 2676. The Court's holding was specific:
Id. at 2677; see also id. at 2664 ("We conclude that race-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.").
Complying with the Supreme Court's mandate, New Haven certified the exam results and promoted white firefighters consistent with the ranked list of eligible candidates. Id. As expected, an adversely affected African-American firefighter sued, alleging that the test had a discriminatory effect, primarily because its 60/40 weighting of the written and oral portions of the test conflicted with the industry norm of 30/70. See Briscoe v. New Haven, 654 F.3d 200, 201 (2d Cir.2011). New Haven claimed that it could not be held liable because (1) the Supreme Court's resolution of the viability of the prospective African-American firefighters' disparate-impact claim as part of its Ricci decision precluded the suit, and (2) there was a "strong basis in evidence" that failing to certify the test results would lead to disparate-treatment liability. Id. at 202-03. The Second Circuit refused to extend Ricci's "strong basis in evidence" defense to the disparate-impact suit against New Haven. Id. at 205-09. We likewise see no reason to extend Ricci's "strong basis in evidence" defense to the NAACP Plaintiffs' disparate-impact suit against North Hudson.
Here, there can be no doubt that removing the residency requirement will adversely affect Intervenors. They will lose their high rankings on North Hudson's candidate hiring list and find it significantly more difficult to secure a firefighter position with North Hudson. For example, if, as the NAACP Plaintiffs advocate, North Hudson hires from a list incorporating candidates from nearby Essex and Union counties, Intervenors likely would not even rank within the top 180 candidates. The Intervenors currently ranked twenty-first, twenty-fifth, and twenty-sixth would drop to 189th, 261st, and 292nd respectively, and those ranked forty-fifth, forty-ninth, and seventieth would not rank within the top 400 candidates.
Nevertheless, the facts and claims in this case are dissimilar to those in Ricci. In Ricci, New Haven had already administered the purportedly illegal exam (the basis for the disparate-impact claim) and attempted to remedy the exam results by denying ten white firefighters the right to promotions (the basis for the disparate-treatment claim). New Haven had to choose between irreconcilable alleged errors before it secured judicial guidance regarding the merits of the competing discrimination claims. Here, North Hudson faces no such quandary. At this juncture, North Hudson's only action is the use of its Residents-Only List, which has been demonstrated to cause a disparate impact in violation of Title VII. It has taken no steps to eliminate the residency requirement or otherwise adjust its policies to reduce the adverse effect. Thus, North Hudson faces a classic disparate-impact claim, one that we have resolved based on the three-step inquiry dictated by the statute.
Moreover, North Hudson has no basis for believing it will be liable to Intervenors or other North Hudson resident applicants under a disparate-treatment theory. First, this Court, rather than North Hudson, is responsible for eliminating the residency requirement. A government
Finally, North Hudson's repeated reliance on the possibility that it will face a lawsuit by its Hispanic resident candidates is unavailing. "Fear of litigation alone" does not suffice; a demonstrated potential for liability is required. Ricci, 129 S.Ct. at 2681.
In sum, we conclude that the District Court properly granted summary judgment to the NAACP Plaintiffs on their disparate-impact claim. The NAACP Plaintiffs presented sufficient evidence to establish that North Hudson's residency requirement causes a disparate impact by excluding well-qualified African-Americans who would otherwise be eligible for available firefighter positions. North Hudson failed to present evidence to create any genuine dispute regarding this disparate impact or adduce a valid business necessity for the residency requirement. And Ricci is unavailing to North Hudson.
North Hudson and Intervenors claim that the inequities Hispanics will face if the residency requirement is removed counsel against imposing a permanent injunction against the use of the Residents-Only List. In particular, North Hudson and Intervenors point to residency requirements compelled by the Consent Decree in many of the municipalities surrounding North Hudson. Because of those residency requirements, North Hudson residents will be eligible for employment only in North Hudson while residents of other jurisdictions will be eligible in their hometowns and in North Hudson. In other words, North Hudson will be forced to open its hiring to non-residents while other municipalities exclude those, like Intervenors, who reside within North Hudson. North Hudson and Intervenors certainly have a point in this regard. But we have no authority to endorse discrimination against firefighter candidates who do not live in North Hudson in order to protect those who do. Once a court identifies racial discrimination, it must order relief that will remedy past discrimination and curb the potential for future discrimination. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 418, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965)).
Although district courts are afforded substantial discretion in fashioning injunctive relief, it should not be broader than required to provide a full remedy to the injured party. See Meyer v. CUNA
Title VII cases demonstrate that inequities to one group accruing from remedies for discrimination against another group cannot forestall those remedies. As we have explained, "Title VII itself clearly makes each employer responsible for its own employment practices, and does not support the proposition that one employer is free to discriminate against a class of employees as long as other employers are willing to hire them." Harrison, 940 F.2d at 800 (internal citation omitted); see also id. at 801 ("[R]esidency requirements imposed by other municipalities... were appropriately excluded from the district court's definition of the relevant labor market."). The unavailability of firefighter positions outside North Hudson to North Hudson residents does not negate the discrimination perpetrated by the exclusion of non-residents from North Hudson positions. Moreover, the municipalities around North Hudson that impose their own residency requirements are not parties in this case, so we cannot adjudicate the legality of their policies. If Intervenors or any other North Hudson residents believe the residency requirements of neighboring communities unlawfully discriminate against them, they remain free to challenge those employment practices. Accordingly, we will affirm the District Court's injunction.
For the reasons stated, we will affirm the District Court's judgment in all respects.
