Friday, October 16, 2009
Professor Howard Wasserman (Florida International) has a very interesting post over at PrawfsBlawg on a potential relationship between the Supreme Court's decisions in Ricci and Iqbal last Term.
The Ricci case is back in the news because an African-American New Haven firefighter has filed a lawsuit under Title VII challenging the same exam that was at issue in Ricci. Readers will recall that the Supreme Court's Ricci decision was based in part on the majority's skepticism that New Haven would have been liable in a Title VII disparate impact lawsuit if it had used the results of the exam to make promotion decisions. Prof. Wasserman observes that the Court's logic in Ricci might be relevant to whether the claim filed last week will survive the "plausibility" prong of Iqbal:
There is a good chance that, in doing the second-step plausibility analysis, the court's (discretionary) view of the plausibility of the plaintiff's allegations will be at least influenced by SCOTUS's insistence that recovery on disparate impact was so unlikely, and the city's fear of liability so misplaced, that its response to those concerns violated Title VII in the other direction. Iqbal suggests courts can decide whether a lawful explanation for the conduct alleged is as plausible as the unlawful explanation alleged and dismiss on its view of this "more plausible" lawful reason.
See the entire post here.
The complaint in the newly filed case is available here.