Legal Update: Spawn of Ricci

The Court will be asked to straighten out the aftermath of Ricci v. Destefano. It has not yet decided whether to grant certification in Briscoe v. New Haven, No. 11-1024, petition for cert 2/15/2012. The case that has revived the fight over tests administered in 2003.

Michael Briscoe, an African American firefighter, brought the suit that the city said it was trying to avoid when it canceled promotion lists that would have benefitted Ricci et al. District court, while somewhat sympathetic to Briscoe‘s suit, said that the Supreme Court had spoken regarding promulgation of the lists and Briscoe should have intervened in Ricci to ensure that his situation were taken into account. Among other things, Briscoe argued that the city could have weighted the written test results differently and had less adverse impact.

On appeal, the Second Circuit took the position that Ricci was one issue, but Briscoe‘s discrimination claim is another and he was entitled to sue. The city would seem to be in a quandary where it had to comply with the Supreme Court (and subsequent orders from the district court implementing the Supreme Court decision) and is being sued arguably for that compliance. The city also noted that other state and local jurisdictions could be whipsawed by litigation regardless of what they did to comply with the law until this matter is resolved.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

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About Richard Tonowski

Rich joined EEOC in 2001 as a Psychologist, worked as the assistant HR director for strategic policy and planning from 2003 to 2006, and then became Chief Psychologist. In that role he reviews test validation documentation, conducts statistical analyses regarding employment practices, and consults with EEOC attorneys and investigators. Prior to his time with EEOC, he had over 20 years of experience involving public sector test development and validation, performance appraisal, employee surveys, diversity management, and labor relations. He also had experience in providing written and oral testimony as an expert witness in court cases, and in federal sector hearings conducted by EEOC and the Merit Systems Protection Board. Rich was awarded his Ph.D. in psychology by Rutgers University, and is certified as a Senior Professional in Human Resources by the credentialing affiliate of the Society for Human Resource Management. He is also an Adjunct Associate Professor of Human Resources Management and Development at University of Maryland University College where he teaches a graduate course.

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