New York Court Hears Firefighters' Title VII Case

On Tuesday the New York Court of Appeals–New York’s highest court–heard argument in Margerum v. City of Buffalo, a case brought by white firefighters who were not promoted because of their race. The City of Buffalo allowed the fire department’s promotional eligibility lists to expire, because the next applicants in line for promotion were all white.  The City initially explained its decision this way:  if no black firefighters were promoted, it would exacerbate the City’s liability in ongoing disparate impact lawsuits; and the City wanted to promote more minorities in order to remedy the racial disparity in the fire department.

PLF filed an amicus brief urging the court to follow the test set out by the United States Supreme Court in Ricci v. DeStefano.  Ricci provides the standard to be applied when an employer intentionally discriminates against white employees in order to avoid creating a disparate impact on minority employees.  An employer must have, at the time the decision is made,  a “strong basis in evidence” that the action was necessary to avoid disparate impact liability.  The desire to limit the City’s financial exposure does not satisfy Ricci.  Nor does the City’s post hoc argument that the promotional lists resulted from invalid testing  processes.