Thomas MacMillan Photo
As lawmakers considered requiring government workers to live in New Haven, a city lawyer voiced a warning: Remember Ricci? You just got out of eight years of costly litigation over discrimination; do you really want to head back for more?
That lawyer was Steve Ecker (at left in photo), a consulting attorney hired by the city to look into the possible legal pitfalls of creating a requirement that city workers also be city residents. He delivered his findings Tuesday evening to members the Board of Aldermen’s City Services and Environmental Policy Committee.
Such a requirement could leave the city vulnerable to federal Title VII complaints, Ecker told the lawmakers, who were gathered around a conference table in City Hall’s Aldermanic Chamber. Depending on a residency requirement’s impact on the racial demographics of city workers, suburban applicants could claim that it has a disparate impact on one race over another, Ecker said.
That is, if a residency requirement meant the city was suddenly hiring more black people than it would otherwise, white suburbanites might sue.
Title VII is the section of the federal Civil Rights Act of 1964 that deals with employment discrimination. It’s the same section the U.S. Supreme Court ruled the city had violated in the Ricci case, by throwing out the results of a 2003 firefighter promotional exam after black candidates scored poorly. That ruling cost the city eight years and millions of dollars; related lawsuits are still ongoing.
On Tuesday, after nearly three hours of discussion, aldermen said they’d like to study the residency requirement matter further and look into conducting their own statistical analysis of its possible demographic impact.
It was the second night this week that aldermen have taken up the question of how to deliver more jobs to New Haveners. During the recent mayoral campaign, Jeffrey Kerekes offered a different suggestion: a “Come Back Home” plan giving suburban-based workers incentives to buy homes in the city.
Tuesday’s discussion stemmed from an Oct. 20 aldermanic briefing, at which Chief Administrative Officer Rob Smuts pitched the idea of capping firefighter applications at 800, with a 50/50 split of 400 New Haveners and 400 out-of-towners. That would give locals a better shot at landing a spot, Smuts argued. Asst. Fire Chief Pat Egan said New Haveners comprise about a third of the force.
Alderman Perez.
At the October briefing, aldermen discovered that Hartford has a requirement that all its firefighters be city residents at the time of application. Four aldermen — Jorge Perez, Jacqueline James, Al Paolillo, and Claudette Robinson-Thorpe — then requested a hearing on the possibility of creating a similar requirement in New Haven, leading to Tuesday’s meeting. They called for a discussion of the impact of a residency requirement on public safety workers, but also more broadly on other departments as well.
In the meantime, Bolden enlisted the services of Ecker, an attorney he said the city consulted on the Ricci case, to consider such a requirement’s legal ramifications. Ecker presented the resulting seven-page memo to aldermen Tuesday. Click here to read it.
Lessons From Jersey
Ecker and Bolden.
Ecker brought up two recent cases to illustrate the city’s potential vulnerability to lawsuit. In September 2010, a district court ruled in favor of the NAACP when it sued the town of North Hudson, New Jersey. The NAACP argued that the town’s residency requirement had “a significant statistical impact on the number of African-Americans eligible for employment.”
The NAACP hired an expert to show that if the North Hudson accepted applicants from within a 29-minute commuting distance, it would have a lot more black people applying, Ecker said.
In September of this year, the Third Circuit ruled on an appeal in Newark on behalf of a man who claimed white people were being adversely affected by the city’s residency requirement. In that case, it came down to how the “relevant labor pool” is defined. A judge had initially said Newark alone is a large enough labor pool, but the Third Circuit saw it differently. The definition of a labor pool should take into consideration things like commuting distance and where others workers come to Newark from, the higher court ruled, according to Ecker.
Title VII allows for employment requirements that arise from a “business necessity,” said Ecker. “You have to know how to fly a plane to be a pilot,” he said for example.
The argument that giving jobs to people in the city is good for the city’s economy and reduces unemployment and maybe therefore crime will not pass muster, Ecker said. Those factor are not business necessities because they have nothing to do with the actual job of being, say, a fireman, he said.
A city might also argue that local firefighter applicants will know the streets and the neighborhood better, Ecker said. That argument won’t fly either, he said. “That kind of logic was rejected in the North Hudson case.”
The key to these residency requirement Title VII cases is statistical analysis, Ecker said. Someone has to show that members of a certain race have a significantly decreased chance of being hired due to a limitation on the pool of applicants by where they live. That proof is all a matter of crunching geographic and demographic numbers, including commuting patterns and distances and where other workers in the city are coming from. It’s a “battle of experts,” Ecker said.
What About Hartford?
Alderman Smith inquires.
Ecker said Smuts’ 50/50 plan is a safer option, from a legal perspective, than a 100 percent requirement. “No one can say, ‘I was excluded.’”
Hill Alderwoman James was not having it. “Why are we only saying 50/50? Why not 90/10?” she said. “Affording someone in West Haven an opportunity is truly beside the point.”
Halfsies is safer because “because it’s balanced,” Ecker said. “Everybody has the same chance.”
But the city might get sued anyway, right? asked West Rock Alderman Darnell Goldson.
On the spectrum of risk, the 50 – 50 plan is closer to the safe side, Bolden said.
But what about Hartford? That city has a residency requirement and it hasn’t been sued, Goldson said. It even won a federal lawsuit against its requirement.
That wasn’t a Title VII claim, said Bolden and Ecker. And Hartford isn’t New Haven.
“Look, if I was advising Hartford, I’d be telling them the same thing,” Ecker said. Hartford was able to fend off a constitutional claim based on an alleged violation of something called the right to intrastate travel, but it hasn’t faced a Title VII challenge, yet.
“New Haven has a big target on its back,” Ecker said.
“We are still in 2011 dealing with the aftermath” of the 2003 promotions exam, Bolden said. “How do we not end up in the litigation vortex?”
Hartford has had its residency requirement since 1997 and been only sued once, unsuccessfully, Dwight Alderman Greg Smith said later. “So the numbers look good.”
But New Haven has had several lawsuits in that same time, Bolden said. And lost millions of dollars.
Digestion
Rawlings takes in Ecker’s testimony.
James Rawlings, head of the local NAACP chapter, later told aldermen that what is legally right is not always morally right. Rosa Parks, for instance, was breaking the law, he said.
“The future of our young people is at stake,” he said. “This is not something we will walk away from.”
Rawlings later said that he’ll be contacting local and national NAACP lawyers to get another legal opinion on the ramifications of a residency requirement.
“I’d like to know their spiel on it,” Hill Alderman Perez said after the meeting. He said he needs to “digest” all the information he was given, and plans to seek further input from a variety of sources. He said aldermen will be having more discussion about the matter in the future.
Only $200 Per Hour
“Why did we hire outside counsel?” Goldson asked Bolden during the meeting, referring to Ecker.
Bolden said he decided it would be good to have an “extra set of eyes” on the residency question. He hired Ecker because he was “helpful with the Ricci case.”
How much is it costing us? Goldson asked.
“My usual rate is $420 an hour,” Ecker said. He agreed to work for $200 an hour for the city, he said.
“It costs more to ignore legal advice.”