Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008)

In Ricci v. DeStefano, 118 firefighters took a promotional exam for Captain and Lieutenant positions within the New Haven Fire Department. Although 41 applicants took the Captain examination, 16 of which were minority, only two minority applicants scored well enough to be eligible for promotion to Captain. For the Lieutenant examination, 77 applicants took the exam but none of the 34 minority applicants scored well enough to be eligible for promotion to Lieutenant. Subsequently, the New Haven Civil Service Board decided not to certify the results to avoid a potential employment discrimination lawsuit by non-white applicants who were not promoted. Eighteen applicants (17 white and one Hispanic) filed suit in U.S. District Court for the District of Connecticut to challenge the city’s decision not to certify the results and promote them. This was an unusual case since the plaintiffs attack not the use of an allegedly racially discriminatory exam but the refusal to use the results. Plaintiffs argued that the city used race-based considerations to non-certify the test results in violation of the law.

Holcomb v. Iona College, 2008 U.S. App. LEXIS 6897 (2d Cir. April 1, 2008).

In this appeal, the United States Court of Appeals for the Second Circuit held that a white employee claiming that he suffered an adverse employment action because of his interracial marriage is permitted to have his case heard in front of a jury, as he did indeed allege discrimination under Title VII. This was the first time that the Second Circuit has rejected a more restrictive reading of Title VII and departed from other courts’ holdings that discrimination based on association with persons of another race is not cognizable. The Second Circuit reasoned that an employee, suffering from an adverse employment action because of employer disproval of an interracial association (in this case, marriage), has indeed suffered from discrimination due to the employee’s own race.

Holcomb v. Iona College, 2008 U.S. App. LEXIS 6897 (2d Cir. April 1, 2008).

In this appeal, the United States Court of Appeals for the Second Circuit held that a white employee claiming that he suffered an adverse employment action because of his interracial marriage is permitted to have his case heard in front of a jury, as he did indeed allege discrimination under Title VII. This was the first time that the Second Circuit has rejected a more restrictive reading of Title VII and departed from other courts’ holdings that discrimination based on association with persons of another race is not cognizable. The Second Circuit reasoned that an employee, suffering from an adverse employment action because of employer disproval of an interracial association (in this case, marriage), has indeed suffered from discrimination due to the employee’s own race.

Klawitter v. City of Trenton, 395 N.J. Super. 302 (App. Div., July 31, 2007).

In the absence of an articulated, overall affirmative action plan to rectify racial imbalances, the use of race as a “plus factor” in employment decisions violates New Jersey’s Law Against Discrimination (LAD).  In Klawitter, the Appellate Division reexamined the interplay between employment decisions aimed at rectifying racial imbalances on the one hand, and the prohibition, under New Jersey’s Law Against Discrimination, against making an employment decision “because” of race. 

Iyer v. Everson, et al., 2007 U.S. App. LEXIS 18512 (3d Cir., August 3, 2007).

Where employment discrimination plaintiffs are unable to provide direct evidence of discrimination, the employer has the burden of overcoming the accusations of discrimination it would not otherwise have.  In Iyer the United States Court of Appeals for the Third Circuit employed the well-established burden-shifting analysis under McDonnell Douglas v. Green (“McDonnell Douglas”), where the plaintiff could present nothing more than circumstantial evidence of illegal discrimination.