Court Orders Back Pay Trial for Firefighters as Statistics Showed Promotion Exam Bias

By Jeffrey L. Rhodes Oct 15, 2015
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The city of Akron, Ohio, was properly held liable for age and race discrimination in firefighter promotions based on a 2004 exam, but a new trial on back pay was necessary, the 6th U.S. Circuit Court of Appeals ruled.

In 2004, the city of Akron used a process for promoting firefighters to lieutenant and captain that included an exam and interviews with a department manager and city officials. The results of the promotion process showed statistical disparities in the number of older and black firefighters elevated to lieutenant, and the number of white firefighters elevated to captain. Based on these statistical disparities, a group of 26 firefighters brought suit claiming discrimination in violation of federal and Ohio civil rights laws, including Title VII of the 1964 Civil Rights Act the Age Discrimination in Employment Act.

The case was filed in 2006 and, in 2008, a jury found disparate impact in the promotion process, and awarded compensatory damages and front pay. The district court judge thus ordered the city to promote the plaintiffs to the positions they sought. That decision was appealed by Akron to the 6th Circuit, but upheld by the appeals court. At the same time, the district court judge made various decisions concerning back pay, including when back pay calculations would begin. The judge ordered the city and the firefighters to provide additional discovery to one another, and scheduled a retrial to determine the amount of back pay to be awarded to the firefighters.

At this retrial, the district court declined to grant the firefighters the full amount of back pay sought, in part because it found that the firefighters did not provide discovery requested by the city. The district court denied step increases and prejudgment interest to the firefighters. The plaintiffs then learned that the city intended to make more promotions, and requested an injunction barring the city from using the 2004 process and the appointment of a court monitor to oversee the promotion process. The district court granted these requests.

On appeal of the retrial to the 6th Circuit, the city argued that the district court’s decision concerning bias was flawed. It claimed that the sample sizes of individuals who did not receive promotion to the various posts were too small to draw a valid conclusion as to disparate impact. It asserted that the white officers did not demonstrate that the city was the unusual type of employer that discriminated against the majority, as is often required in reverse discrimination cases. It also sought to overturn the injunction promoting the firefighters and the appointment of a court monitor over the promotion process, and sought a new judge to handle the case on remand. The firefighters also appealed and claimed that they were denied the full back pay that they were entitled to under the law. They also sought the removal of the district court judge from their case as his ruling on discovery issues demonstrated bias against them.

The 6th Circuit held that the city could not challenge the prior rulings of the district court, upheld on appeal, that the promotion process was biased. It had already agreed with those rulings in the first appeal, and thus they were the law of the case that could not be contested. The 6th Circuit also held that the injunction and appointment of a court monitor were appropriate, but that they would only last through the next promotional cycle.

In considering back pay, the 6th Circuit found that the district court had unfairly denied step increases and prejudgment interest to the firefighters, and that a new trial had to be held to determine the correct amount of back pay. The 6th Circuit agreed with both parties that a new judge should determine back pay on remand, as the judge’s rulings demonstrated that he had become unnecessarily adverse to the parties due to the contentiousness of the lawsuit.

Howe v. City of Akron, 6th Cir., No. 13-4172 (Sep. 17, 2015).

Professional Pointer: Employers must carefully determine when and how to use exams and other screening tools for promoting employees. A disparity in the age and race of workers promoted may show a disparate impact in a test otherwise designed to be age- and race-neutral, even if the sample size of affected employees is relatively small.

Jeffrey L. Rhodes is managing partner of the civil division of Albo & Oblon, a business and employment law firm in Arlington, Va.

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