CASE 20.2 Ricci v. DeStefano 557 U.S. 557 (2009) Fighting Fire with Stats FACTS In 2003, 118 firefighters in the city of New Haven, Connecticut, took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (City) were infrequent, so the stakes were high. Exam results determined which fire- fighters would be considered for promotions during the next two years, and their order for consideration. Many firefighters, including Frank Ricci, studied for months, at considerable personal and financial cost. The examination results showed that white candidates had outperformed minority candidates. Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, six blacks, and three Hispanics. Eight lieutenant positions were vacant at the time of the examination, which meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white. Subsequent vacancies would have allowed at least three black candidates to be considered for promotion to lieutenant. Forty-one candidates completed the captain examination—25 whites, eight blacks, and eight His- panics. Of those, 22 candidates passed—16 whites, three blacks, and three Hispanics. Seven captain positions were vacant at the time of the examination. Nine candidates were eligible for an immediate promotion to captain—seven whites and two Hispanics. Following a briefing on the exam results, the mayor and other local politicians opened a public debate on the results that turned rancorous. The firefighters argued that the test results should be discarded because the results were discriminatory. Some firefighters threatened a discrimination lawsuit if the city made the promotions on the basis of the tests. Other fire- fighters said the exams were neutral and fair, and they, in turn, threatened a discrimination lawsuit if the city, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end, the city took the side of those who protested the test results. It threw out the examination results. Mr. Ricci and others filed suit. The federal district court found that there was dis- crimination against the white and Hispanic firefighters, and the city (respondents) appealed. The appellate court reversed the district court’s decision.2 The firefighters (petitioners) appealed to the U.S. Supreme Court. JUDICIAL OPINION KENNEDY, Justice The City’s actions would violate the disparate-treat-ment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough m ...

1. CASE 20.2
Ricci v. DeStefano
557 U.S. 557 (2009)
Fighting Fire with Stats
FACTS
In 2003, 118 firefighters in the city of New Haven, Connecticut,
took examinations to qualify for promotion to the rank of
lieutenant or captain. Promotion examinations in New Haven
(City) were infrequent, so the stakes were high. Exam results
determined which fire- fighters would be considered for
promotions during the next two years, and their order for
consideration. Many firefighters, including Frank Ricci, studied
for months, at considerable personal and financial cost.
The examination results showed that white candidates had
outperformed minority candidates. Seventy-seven candidates
completed the lieutenant examination—43 whites, 19 blacks,
and 15 Hispanics. Of those, 34 candidates passed—25 whites,
six blacks, and three Hispanics. Eight lieutenant positions were
vacant at the time of the examination, which meant that the top
10 candidates were eligible for an immediate promotion to
lieutenant. All 10 were white. Subsequent vacancies would have
allowed at least three black candidates to be considered for
promotion to lieutenant.
Forty-one candidates completed the captain examination—25
whites, eight blacks, and eight His- panics. Of those, 22
candidates passed—16 whites, three blacks, and three
Hispanics. Seven captain positions were vacant at the time of
the examination. Nine candidates were eligible for an immediate
promotion to captain—seven whites and two Hispanics.

2. Following a briefing on the exam results, the mayor and other
local politicians opened a public debate on the results that
turned rancorous. The firefighters argued that the test results
should be discarded because the results were discriminatory.
Some firefighters threatened a discrimination lawsuit if the city
made the promotions on the basis of the tests. Other fire-
fighters said the exams were neutral and fair, and they, in turn,
threatened a discrimination lawsuit if the city, relying on the
statistical racial disparity, ignored the test results and denied
promotions to the candidates who had performed well. In the
end, the city took the side of those who protested the test
results. It threw out the examination results. Mr. Ricci and
others filed suit.
The federal district court found that there was dis- crimination
against the white and Hispanic firefighters, and the city
(respondents) appealed. The appellate court reversed the district
court’s decision.2 The firefighters (petitioners) appealed to the
U.S. Supreme Court.
JUDICIAL OPINION
KENNEDY, Justice
The City’s actions would violate the disparate-treat-ment
prohibition of Title VII absent some valid defense. All the
evidence demonstrates that the City chose not to certify the
examination results because of the statistical disparity based on
race—i.e., how minority candidates had performed when
compared to white candidates. As the District Court put it, the
City rejected the test results because “too many whites and not
enough minorities would be promoted were the lists to be
certified.” With- out some other justification, this express, race-
based decision making violates Title VII’s command that
employers cannot take adverse employment actions because of
an individual’s race.
Whatever the City’s ultimate aim—however well intentioned or
benevolent it might have seemed—the City made its
employment decision because of race. The City rejected the test
results solely because the higher scoring candidates were white.

3. The question is not whether that conduct was discriminatory but
whether the City had a lawful justification for its race-based
action.
Allowing employers to violate the disparate-treat- ment
prohibition based on a mere good-faith fear of disparate-impact
liability would encourage race-based action at the slightest hint
of disparate impact. A minimal standard could cause employers
to discard the results of lawful and beneficial promotional
examinations even where there is little if any evidence of
disparate-impact discrimination. That would amount
to a de facto quota system, in which a “focus on statistics . . .
could put undue pressure on employers to adopt inappropriate
prophylactic measures.”
Congress has imposed liability on employers for unintentional
discrimination in order to rid the work- place of “practices that
are fair in form, but discriminatory in operation.” But it has
also prohibited employers from taking adverse employment
actions “because of” race. Applying the strong-basis-in-
evidence standard to Title VII gives effect to both the disparate-
treatment and disparate-impact provisions, allowing violations
of one in the name of compliance with the other only in certain,
narrow circumstances. The standard leaves ample room for
employers’ voluntary compliance efforts, which are essential to
the statutory scheme and to Congress’s efforts to eradicate
workplace discrimination. And the standard appropriately
constrains employers’ discretion in making race-based
decisions: It limits that discretion to cases in which there is a
strong basis in evidence of disparate-impact liability, but it is
not so restrictive that it allows employers to act only when there
is a provable, actual violation.
Examinations like those administered by the City create
legitimate expectations on the part of those who took the tests.
As is the case with any promotion exam, some of the
firefighters here invested substantial time, money, and personal
commitment in preparing for the tests. Employment tests can be
an important part of a neutral selection system that safeguards

4. against the very racial animosities Title VII was intended to
prevent. Here, however, the firefighters saw their efforts
invalidated by the City in sole reliance upon race-based
statistics.
If an employer cannot rescore a test based on the candidates’
race, then it follows a fortiori that it may not take the greater
step of discarding the test altogether to achieve a more desirable
racial distribution of promotion-eligible candidates—absent a
strong basis in evidence that the test was deficient and that
discarding the results is necessary to avoid violating the
disparate-impact provision. Restricting an employer’s ability to
discard test results (and thereby discriminate against qualified
candidates on the basis of their race) also is in keeping with
Title VII’s express protection of bona fide promotional
examinations.
For the foregoing reasons, we adopt the strong- basis-in-
evidence standard as a matter of statutory construction to
resolve any conflict between the disparate-treatment and
disparate-impact provisions of Title VII.
The City argues that, even under the strong-basis- in-evidence
standard, its decision to discard the examination results was
permissible under Title VII. That is incorrect. Even if
respondents were motivated as a subjective matter by a desire to
avoid committing disparate-impact discrimination, the record
makes clear there is no support for the conclusion that
respondents had an objective, strong basis in evidence to find
the tests inadequate, with some consequent disparate- impact
liability in violation of Title VII.
On the record before us, there is no genuine dispute that the
City lacked a strong basis in evidence to believe it would face
disparate-impact liability if it certified the examination results.
In other words, there is no evidence—let alone the required
strong basis in evidence—that the tests were flawed because
they were not job-related or because other, equally valid and
less discriminatory tests were available to the City. Fear of

5. litigation alone cannot justify an employer’s reliance on race to
the detriment of individuals who passed the examinations and
qualified for promotions. The City’s discarding the test results
was impermissible under Title VII, and summary judgment is
appropriate for petitioners on their disparate-treatment claim.
Our statutory holding does not address the constitutionality of
the measures taken here in purported compliance with Title VII.
We also do not hold that meeting the strong-basis-in-evidence
standard would satisfy the Equal Protection Clause in a future
case.
Reversed.
CASE QUESTIONS
1. Explain what happened on the exam and why the city decided
to toss the exam results.
2. What does the court establish as the law applicable to
“tossing” exam results?
3. What is the court trying to balance in interpreting the law?
Case 19.1
Chao v. Hotel Oasis, Inc.
493 F.3d 26 (1st Cir. 2007)
Two Sets of Books, One Big Penalty
Facts
Hotel Oasis, Inc., operates a hotel and restaurant in
southwestern Puerto Rico. Dr. Lionel Lugo-Rodríguez
(defendant-appellant) (Lugo) is the president of the corporation,
runs the hotel, and manages its employees. Oasis’s records show

6. that between October 3, 1990, and June 30, 1993, employees
were paid less than minimum wage, were not paid for training
time or meetings held during nonworking hours, were paid in
cash “off the books,” and were not paid correctly for overtime.
Oasis also maintained two sets of payroll records for the same
employees, covering the same time periods, one showing fewer
hours at a higher rate and the other showing more hours at a
subminimum wage rate. Lugo maintains that the two sets of
books were necessary, one for temporary employees and one for
permanent employees.
On April 5, 1994, the Secretary of Labor (the “Secretary”) filed
a complaint in the United States District Court for the District
of Puerto Rico against Oasis and Lugo (“Defendants”), alleging
violations of the mini- mum wage, overtime, and record-keeping
provisions of the Fair Labor Standards Act (“FLSA”). The
Secretary also sought liquidated damages.
After years of litigation, the district court ordered Oasis to pay
$141,270.64 in back wages and an equal amount in liquidated
damages to 282 current and former employees. The court also
found Lugo personally liable for the back wages and penalties.
Lugo and Oasis appealed.
JUDICIAL OPINION
TORRUELLA, Circuit Judge “[T]he overwhelming weight of
authority is that a corporate officer with operational control of a
corporation’s covered enterprise is an employer along with the
corporation, jointly and severally liable under the FLSA for
unpaid wages.” Although we found it “difficult to accept . . .
that Congress intended that any corporate officer or other
employee with ultimate operational control over payroll matters
be personally liable,” we narrowly determined that the FLSA
did not preclude personal liability for “corporate officers with a
significant ownership interest who had operational control of
significant aspects of the corporation’s day to day functions,
including compensation of employees, and who personally made
decisions to continue operations despite financial adversity

7. during the period of non- payment.”. . .
. . . [Because] not every corporate employee who exercised
supervisory control should be held personally liable, we
identified several factors that were important to the personal
liability analysis, including the individual’s ownership interest,
degree of control over the corporation’s financial affairs and
compensation practices, and role in “caus[ing] the corporation
to compensate (or not to compensate) employees in accordance
with the FLSA.”
Based on the above considerations, we affirm the district
court’s judgment holding Lugo personally liable for Oasis’s
compensation decisions. Lugo was not just any employee with
some supervisory control over other employees. He was the
president of the corporation, and he had ultimate control over
the business’s day- to-day operations. In particular, it is
undisputed that Lugo was the corporate officer principally in
charge of directing employment practices, such as hiring and
firing employees, requiring employees to attend meetings
unpaid, and setting employees’ wages and schedules. He was
thus instrumental in “causing” the corporation to violate the
FLSA. The FLSA contemplates, at least in certain
circumstances, holding officers with such personal
responsibility for statutory compliance jointly and severally
liable along with the corporation.
Finally, Defendants argue that the district court erred in
awarding liquidated damages based on a finding of willfulness.
The FLSA authorizes the Secretary of Labor to recover on
behalf of employees unpaid wages and over- time compensation
plus an equal amount in liquidated damages. The only way an
employer can escape liquidated damages is to “show[] to the
satisfaction of the court” that it acted in good faith and had
reasonable grounds for believing that its acts did not violate the
FLSA.
Here, the district court found that Defendants failed to show
good faith or objective reasonableness, referring back to its
findings on willfulness with respect to the applicable statute of

8. limitations. Defendants “intentionally and consistently failed to
keep accurate records of the time worked by its employees[,] . .
. disguised minimum wage, as well as overtime pay violations, .
. . did not record the amounts of cash tips . . . [and] most
salient. . .[to] a finding of willfulness . . . [paid] employees ‘off
the books.’”
Oasis’s failure to keep adequate payroll records and its
intentional manipulation of the records it did keep are sufficient
grounds for concluding that Oasis did not act in good faith or
with a reasonable belief that it was in compliance with the
FLSA. “[T]he fact that an employer knowingly under-reported
its employee’s work hours could suggest to a [fact finder] that
the employer was attempting to conceal its failure to pay
overtime from regulators, or was acting to eliminate evidence
that might later be used against it in a suit by one of its
employees.”
Defendants’ primary argument on appeal is that the court had
indicated at trial that the willfulness issue was “close” and that
the Secretary had offered no evidence that Oasis acted in
reckless disregard of its statutory obligations. These arguments
are unpersuasive. First, the district court noted its “initial
inclination against a determination of willfulness,” but
explained that it ultimately relied on the employees’ testimony
and Defendants’ own documentary evidence to reach its
conclusion regarding willfulness. We have already determined
that the willfulness finding is not clearly erroneous.
Furthermore, it is the employer’s burden to show good faith and
objective reasonableness, and therefore the Secretary’s alleged
failure to offer evidence of willfulness is not an impediment to
the court’s decision to refrain from awarding liquidated
damages.
Affirmed.
CASE QUESTIONS
1. What shows willfulness of a violation?

9. 2. What are the standards for holding an officer liable for
FLSA violations?
3. Explain what liquidated damages are and when they are
available for recovery
Directions
Submit one MSWord document with clear labeling and
distinctions for each response. To obtain full points you must
apply the concepts we’ve studied to date and use the tools and
skills studied in your response. Always cite any paraphrasing
and quotes from your textbook, lecture, or other sources.
· Chapter 19 - Case 19.1 Brief and answer questions; Questions
9 and 10. Brief must be in I.R.A.C. as well as Questions answer.
· Issue:
· Rule:
· Analysis:
· Conclusion:
9. A group of exotic dancers at several clubs in the San
Fernando Valley of California brought a class action suit
against their employers, the club owners, for the following
violations of labor law:
• Failure to provide meal breaks
• Failure to provide rest breaks
• Club managers taking 50% of the dancers’ tips, which
resulted in some dancers earning less than the minimum wage
for hours worked
• Failure to reimburse dancers for the costs of their uniforms
The club owners acknowledge that the dancers worked over 40
hours each week but that they were professionals and not

10. subject to the provisions of the FLSA. The club owners also
claim that the dancers work on a type of commission basis and
so are not covered by the minimum wage law. Are labor law
violations going on at the clubs? Are you able to respond to the
defenses that the club owners raised?
10. Dawnmarie Souza was fired from American Medical
Response (AMR) after using vulgarities to ridicule her
supervisor in a Facebook posting. Souza also wrote, using the
company’s terminology for a psychiatric patient: “Love how the
company allows a 17 to become a supervisor.” (17 is the
company’s code for a psychiatric patient.) Ms. Souza filed a
complaint with the NLRB for AMR’s retaliatory conduct and
interference with her right to organize fellow employees. What
can employees post about their employers in social media and
on the Internet?
· Chapter 20 - Case 20.2 Brief and answer questions; Questions
7 and 8. Brief must be in I.R.A.C. as well as Questions answer.
· Issue:
· Rule:
· Analysis:
· Conclusion:
7. Wendy Komac was hired by Gordon Food Service as a
salesperson. During the course of her employment, Gordon held
sales contests such as the “Winner’s Circle” competition, which
rewarded the salesperson who generated the most new
customers. Ms. Komac’s supervisor received an unsigned letter
that accused Ms. Komac of falsely representing new sales
customers in her report. When confronted, she denied the
allegations but was eliminated from the sale competition when
she stated that “other employees routinely violated the rules.”
Her supervisor gave a speech at the next sales meeting
explaining that violations of the rules during sales com- petition
would be grounds for termination.
During a subsequent Tyson product competition, allegations

11. again emerged about Ms. Komac’s conduct. When confronted,
Ms. Komac admitted that she had reported products normally
purchased by one of her long-term customers as being
purchased by two other customers.
Following the second contest problem, Ms. Komac was fired.
Ms. Komac filed suit alleging discrimi- nation by Gordon. She
gave examples of statements made to her over the course of her
employment such as her pay being less because male employees
“have a wife and three kids at home.” She also alleged that no
male employees were terminated for violating contest rules.
However, there was no evidence that any male employees had
been caught cheating in contests after the supervisor’s speech.
Explain whether Ms. Komac has established a prima facie case
of gender discrimination. [Komac v. Gordon Food Service, 3 F.
Supp. 2d 850 (N.D. Ohio 1998)]
8. Would the following actions constitute sexual harassment?
a. Making sexual comments or innuendoes; telling sexual jokes
or stories
b. Asking questions about social or sexual life
c. Telling lies or spreading rumors about a person’s personal
sex life
d. Making sexual comments about a person’s body
e. Turning work discussions to sexual topics
f. Looking a person up and down
g. Staring repeatedly at someone
h. Blocking a person’s path or hindering them
i. Giving unwanted gifts of a sexual nature
j. Invading a person’s body space
k. Making sexual gestures or kissing sounds or offering
massages
l. Displaying sexual posters, cartoons, or handouts

12. Team 1: Our Chemical Lives
(Jason Patterson, Rymario Armstrong, Sidney Powell)
1. Summary of “Our Chemical Lives – Documentary"
2. The Documentary’s argument on the issues
a. Australian Lax regulations
i. Federal
ii. State
b. Exposure effects
i. Short-term
ii. Long-term
c. Relevant case law
i. Federal
ii. Civil
3. The Government’s and Public’s position on the issues
a. Testing is sufficient
i. Animal
ii. Human
b. Safeguards
i. Legislation and Regulation
ii. Consensus Standards
iii. Administrative Agency’s Enforcement Arm
c. Relevant case law
i. Federal
ii. Civil
4. Team’s Individual Synopsis
a. Jason
b. Rymario
c. Sidney
5. Team Conclusion: Why
6. References (NOTE: Not required and this doesn't count
toward the 20 slides minimum)

13. References
Smith, Vaughn. (2015). Our chemical lives: Transcript.
Catalyst. Retrieved from https://www.abc.net.au/catalyst/our-
chemical-lives/11015852
Presentation Insights:
The Documentary’s setting is in Australia, we should
summarize the Documentary and apply what chemicals our
American society faces? According to the Professor:
Presentation requirements are as follows:
· Watch Video;
· Research both sides of topic;
· Provide a short summary of video;
· Provide Pros and Cons perspectives;
· Team Conclusion & Why;
· Use footnotes for citations;
· 20 Slides minimum.
It has long been a passionate contention of mine that we are
exposed to chemicals at home, in the workplace and
environment which impacts our family's health and wellness
today and future generations. [SP]

14. English 123
Poetry Writing Assignments
Poetry Essay
Choose one poem from the textbook (not necessarily one that
we’ve discussed in class; it can be any poem found In the text
book) or the handouts, which you did not discuss in one of your
Reading Responses, and describe your experience of reading the
poem, discussing how the poet has used two or more of the
poetic devices discussed in the text or in my notes on poetry.
How has the poet’s use of these devices affected the meaning or
feeling of the poem? For example, if the poet has used
metaphors or similes, how have they contributed to your
appreciation and/or understanding of the poem? Or, how
important is rhythm in the poem to convey meaning or feeling?
Or diction? Or imagery? Or line breaks? I suggest that you do
not waste time and space discussing some device that the poet
has NOT used. For example, don’t say that poem doesn’t have
meter or that it doesn’t rhyme. Discuss, instead, what features
it does have, and what poetic devices it DOES make use of.
The minimum length of this paper is 800 words. In choosing a
poem, find one that you like and can say enough about to
compose a paper of at least that length. Do not use outside
sources. This paper is about your own ideas!

15. Make sure that your paper has an introduction in which you
make general comments about poetry which lead up to your
discussion of the poem. Also, be sure that you include the title
of the poem and the poet’s name in your essay. Read the
section entitled “Writing About a Poem” beginning on page
1816 so you’ll know how to quote. Since you will be writing
from your own ideas and observations, you do not need to
include a Works Cited page or Bibliography. And, I repeat, do
not use outside sources. Also, although you may mention your
feelings about the poem, or your connections from your own
life, the paper should be primarily analytical.
The paper will be graded on your correct usage of terminology
and the ways in which you cite parts of the poem, as well as on
the amount of detailed analysis you present. Also taken into
consideration will be grammar and mechanics. Save all drafts
of your work. If I suspect that you are using someone else’s
ideas or have plagiarized in any way, you will have to provide
proof that you have composed the paper from beginning to end.
For example, you might make a copy of the poem and mark it up
before you begin to write, and write out your first draft by hand.
And save that draft! As well as any further drafts. If you can’t
provide those drafts and your paper sounds plagiarized, it will
receive an F. If you are having any trouble with this
assignment, send me an email.
This essay is due by midnight, November 26th .