Margerum v. City of Buffalo, 24 N.Y.3d 721 (N.Y. Feb. 17, 2015): The New York Court of Appeals held that, where an employer has allegedly engaged in intentional discrimination to avoid or remedy an unintentional disparate impact, liability under the New York State Human Rights Law (NYSHRL) should be assessed under the federal standard developed by the Supreme Court of the United States in Ricci v. DeStefano.

In a long-running case, the plaintiffs—12 white male firefighters—brought suit against the City of Buffalo alleging that the City engaged in reverse, disparate treatment racial discrimination by permitting certain promotion eligibility lists to expire. The plaintiffs claimed that had the lists been extended to their maximum duration of four years they would have received promotions. The City, in response to earlier claims of racial discrimination by a class of African-American firefighters, had allowed the promotion eligibility lists to expire to remedy the unintentionally discriminatory effects of the City’s entrance exams. The trial court granted the plaintiffs’ request for summary judgment, ruling that the City failed to meet the “strong basis in evidence” standard set forth in Ricci. In Ricci, the U.S. Supreme Court held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take race-conscious, discriminatory action.”

On appeal, the New York Court of Appeals ruled that the trial court’s entry of summary judgment in the plaintiffs’ favor was improper because the City’s alleged liability under Ricci “[could not] be determined on motions for summary judgment,” i.e., there was a disputed issue of fact whether the City had a “strong basis in evidence to believe it [would] be subject to disparate-impact liability.” The Court of Appeals remitted the case to the trial court to determine the City’s liability under this heightened standard. Notably, the Court of Appeals decision appeared to depart from Ricci because it placed the burden on the employer to proffer a legitimate, non-discriminatory reason for creating a disparate impact. Therefore, New York employers engaged in efforts to remedy any unintentional disparate impact created by their employment practices should be especially mindful that their actions may create liability under New York and federal law.