by Art Gutman Ph.D., Professor, Florida Institute of Technology

We reported on Rounds 1 and 2 of this case on May 17, 2010. To refresh your memory, the NAACP challenged a residency requirement for firefighter candidates that excluded applicants living outside of “member municipalities.” The NAACP argued that the residency requirement adversely impacts black applicants. Prior to the Supreme Court’s ruling in Ricci v. DeStefano (2009), Senior District Court Judge Dickson R. Debevoise for the District of New Jersey issued a preliminary injunction against North Hudson (Round 1), giving the municipality the option of hiring from a tri-county list from within and beyond North Hudson. However, North Hudson responded with a hiring freeze, believing they would be in violation of a settlement reached with Hispanic applicants from North Hudson in 2009. In other words, North Hudson believed it was between a rock and a hard place --- stick with the residency requirement and one minority group sues; abandon it and another minority group sues. As noted in the prior Alert, Judge Debevoise overturned the preliminary injunction in light of Ricci (Round 2), ruling that North Hudson’s fear of losing a challenge by Hispanic applicants was job related, and therefore, was likely to prevail in its defense (see 2010 U.S. Dist. LEXIS 40067, 4/23/10).

That was then. Upon further review, Judge Debevoise changed his mind Round 3 (see 2010 U.S. Dist. LEXIS 98671, 9/21/10). The NAACP presented statistical evidence that only 2 of 323 employees in the regional fire department was black, and that if the residency requirement were expanded to Southern Hudson County and neighboring counties, black applicants who passed the statewide exam would be hired in far greater numbers. Judge Debevoise now ruled that the NAACP data was sufficient to prove adverse impact, and that North Hudson failed to prove that its residency requirement is job related and consistent with business necessity.

So what happened to the “Ricci Defense” that Judge Debevoise had previously credited in Round 2? According to the judge, North Hudson “would not be expanding the list because the residency requirement causes a disparate impact that is not justified by business necessity.” Additionally, the judge ruled that he is “not persuaded that Ricci provides [North Hudson] with a defense to the present suit.”

Bottom line, the NAACP wins a summary judgment in Round 3. It should be interesting what happens in Round 4, which I anticipate is likely to be an appeal to the 3rd Circuit Court. We will keep you informed as events transpire.

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