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