Petitioners, Respondents.

No. 11-1247 IN THE Supreme Court of the United States NORTH HUDSON REGIONAL FIRE AND RESCUE, et al., v. Petitioners, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF IN OPPOSITION DAVID L. ROSE Counsel of Record JOSHUA N. ROSE YUVAL RUBINSTEIN ROSE LEGAL ADVOCATES, P.C. 1726 M Street NW, Suite 203 Washington, DC 20036 (202) 331-8555 daver@roselawyers.com Attorneys for the Respondents 241844 A (800) 274-3321 (800) 359-6859

i QUESTIONS PRESENTED In this Title VII disparate impact case, the Third Circuit held that North Hudson Regional Fire & Rescue s municipal residency requirement violated Section 703(k) of Title VII. The questions presented are: 1. Whether Ricci v. Destefano 557 U.S. 557 (2009) provides a defense to disparate impact liability where the only defense provided in Title VII is a demonstration that the challenged practice is job-related for the position in question and consistent with business necessity. 2. Whether the residency requirements of other municipalities in New Jersey that are not parties to this case can serve as a basis for denying Respondents makewhole relief pursuant to Section 706(g) of Title VII.

ii CORPORATE DISCLOSURE STATEMENT Respondents National Association For The Advancement Of Colored People (NAACP), The Newark Branch, NAACP, and The New Jersey State Conference, NAACP have no parent corporations, and no publicly-held company owns 10 percent or more of their stock.

iii TABLE OF CONTENTS QUESTIONS PRESENTED.................. CORPORATE DISCLOSURE STATEMENT... TABLE OF CONTENTS..................... TABLE OF CITED AUTHORITIES........... Page i ii iii v BRIEF OF RESPONDENTS IN OPPOSITION.. 1 COUNTER-STATEMENT OF THE CASE..... 3 I. STATEMENT OF FACTS.............. 3 II. PROCEEDINGS BELOW............... 5 REASONS FOR DENYING THE PETITION... 7 I. NEITHER QUESTION PRESENTED SHOWS A DISAGREEMENT BETWEEN OR AMONG THE CIRCUITS THAT COULD WARRANT THIS COURT S REVIEW............................. 7 II. THE RULING BELOW IS CORRECT... 9 A. The Third Circuit Correctly Held That Title VII Disparate Impact Claims Remain Governed By Section 703(k).. 9

iv Table of Contents Page B. Even If Ricci Was Applicable, North Hudson Would Still Not Have A Strong Basis In Evidence To Maintain Its Residency Requirement............. 12 1. Because This Case, Unlike Ricci, Involves An Actual Violation Of Title VII, The Removal Of The Residency Requirement Cannot Be The Result Of Intentional Discrimination By North Hudson.. 12 2. Any Ricci-Type Disparate- Treatment Lawsuit Would Fail Because There Is No Evidence That The Residency Requirement Is Job-Related For The Firefighter Position Or Other Positions And Consistent With Business Necessity...................... 13 C. The Third Circuit Correctly Held That The Practices Of Other Municipalities That Are Not Parties To This Case Should Not Frustrate Respondents Entitlement To Make-Whole Relief.... 15 CONCLUSION.............................. 17

v TABLE OF CITED AUTHORITIES CASES Page Alabama v. North Carolina, 130 S. Ct. 2295 (2010)....................... 11 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)......................... 15 Bennett v. Nucor Corp., 656 F.3d 802 (4th Cir. 2011).................. 7 Briscoe v. City of New Haven, (2d Cir. 2011), cert. filed Feb. 15, 2012......... 7, 8 Franks v. Bowman, 424 U.S. 747 (1976)......................... 3, 16 Grant v. Metro. Gov t of Nashville & Davidson County, 446 Fed. Appx. 737 (6th Cir. 2011)............ 7 Griggs v. Duke Power, 401 U.S. 424 (1971)......................... 12 John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008)......................... 12 Lewis v. City of Chicago, 130 S. Ct. 2191 (2010)..................... 1, 2, 11

vi Cited Authorities Page Lewis v. City of Chicago, 643 F.3d 201 (7th Cir. 2011).................. 7 Martin v. Wilks, 490 U.S. 755 (1989)......................... 15 Meditz v. City of Newark, 658 F.3d 364 (3d Cir. 2011).................. 16, 17 Menoken v. Berry, 408 Fed. Appx. 370 (D.C. Cir. 2010)........... 7 Milliken v. Bradley, 433 U.S. 267 (1977)......................... 15 Ricci v. Destefano, 129 S. Ct. 2658 (2009).................... passim Terry v. City of San Diego, 380 Fed. Appx. 591 (9th Cir. 2010)............ 7 United States ex rel. Eisenstein v. City of New York, N.Y., 129 S. Ct. 2230 (2009)....................... 11 United States v. Brennan, 650 F.3d 65 (2d Cir. 2010).................... 7 United States v. Lee Way Motor Freight, Inc., 625 F.2d 918 (10th Cir. 1979)................. 9

vii Cited Authorities Page United States v. Town of Cicero, Ill., 786 F.2d 331 (7th Cir. 1986).................. 14 STATUTES Section 703 of Title VII..................... 15 Section 703(k) of Title VII (42 U.S.C. 2000e-2(k)).................. passim Section 706(g) of Title VII..................... 15 42 U.S.C. 2000e-2(k)(1)(A)(I)................. 2, 11 Rule 10..................................... 7

1 BRIEF OF RESPONDENTS IN OPPOSITION This case involves a straightforward application of the disparate impact method of proof codified in Section 703(k) of Title VII. 42 U.S.C. 2000e-2(k). The Third Circuit correctly adhered to Section 703(k) s burden-shifting framework in ruling that North Hudson Regional Fire & Rescue s residency requirement has an adverse impact upon qualified, non-resident African-Americans and is not justified by business necessity. Pet. App. 24a-35a. The Third Circuit also affirmed the district court s order permanently enjoining North Hudson from using its residency requirement. Pet. App. 41a-43a. Petitioners 1 do not contend that the ruling below misapplied Section 703(k), but instead ask the Court to take a detour around Title VII s text on two principal grounds. First, Petitioners argue that Ricci v. Destefano, 129 S. Ct. 2658 (2009) relieves North Hudson of the burden to plead[] and prove[] the business-necessity defense, Lewis v. City of Chicago, 130 S.Ct. 2191, 2198 (2010) because removal of the residency requirement would result in disparate-treatment liability to incumbent Hispanic firefighters who benefit from the discriminatory residency requirement. Second, Petitioners assert that Respondents must be denied make-whole relief under Section 706(g) of Title VII because neighboring municipalities, who are not parties to this case, also maintain residency requirements. Both arguments fail. Petitioners reliance on Ricci is premised on a misreading of the Court s opinion in 1. Respondents collectively refer to North Hudson Regional Fire & Rescue and the Intervenors as Petitioners unless otherwise noted.

2 that case. The Court, contrary to Petitioners contention, reaffirmed the primacy of the business-necessity defense, noting that [a]n employer may defend against liability by demonstrating that the practice is job related for the position in question and consistent with business necessity. Ricci, 129 S.Ct. at 2673 (citing 42 U.S.C. 2000e-2(k)(1)(A)(I)). Accord: Lewis, 130 S.Ct. at 2198. Moreover, every court of appeals confronting a Title VII disparate impact case since Ricci has continued applying Section 703(k) s burden-shifting framework. Petitioners pin their argument to Ricci s case-specific penultimate paragraph. Pet. 14-16. Yet Petitioners expansive reading of that paragraph would render Section 703(k) s business-necessity defense superfluous and would embed within the statute an affirmative defense that Congress itself did not enact. Such results would contravene bedrock principles of statutory interpretation. Even assuming that Ricci was applicable, the Court s decision does not justify North Hudson s continued use of its discriminatory residency requirement. The Third Circuit held that the residency requirement violated Section 703(k), and Petitioners do not contend otherwise; unlike in Ricci, the removal of the challenged employment practice could not be the result of any intentional discrimination on North Hudson s part. North Hudson s professed belief that it would be subject to disparate-treatment liability is therefore unfounded. Even if a disparate-treatment lawsuit was filed, neither the Intervenors nor any other North Hudson residents could prove that the residency requirement is job related and consistent with business necessity, the starting point for any Ricci-type purposeful discrimination claim.

3 The second question presented also does not merit the Court s review. Petitioners fail to cite any authority supporting their contention that the residency requirements of other New Jersey municipalities, who are not even parties to this case, somehow justify North Hudson s continued use of its discriminatory practice. Indeed, Petitioners argument is flatly contrary to the principle that denying relief on the sole ground that such relief diminishes the expectations of other, arguably innocent, employees would if applied generally frustrate the central make whole objective of Title VII. Franks v. Bowman, 424 U.S. 747, 774 (1976). COUNTER-STATEMENT OF THE CASE I. STATEMENT OF FACTS The Residency Requirement. New Jersey civil service law requires New Jersey municipalities to hire for firefighter positions using an examination administered by the New Jersey Department of Personnel (NJDOP). Pet. App. 3a. The NJDOP creates an eligibility-list that is based on each municipality s hiring preferences. Id. North Hudson was formed in 1998 as a consolidation of five municipalities - Guttenberg, North Bergen Union City, and West New York. Each municipality had previously imposed a residency requirement, and North Hudson continued this practice. Pet. App. 4a-5a. Because North Hudson maintains a residency requirement, the eligibility list used from the NJDOP s examination only includes candidates from its five member municipalities. Pet. App. 5a. The resident preference only applies at the date of hire; once a candidate is hired,

4 he or she may live anywhere. Pet. App. 6a. Some North Hudson firefighters have lived as far as sixty miles away from the member municipalities. Id. As of 2008, North Hudson employed 323 full-time employees, two of whom were African-American. Id. The Rodriguez Case. North Hudson was the subject of a lawsuit by thirteen Hispanic fi refighters in 2001. The parties settled in 2005. Pet. App. 7a. North Hudson agreed to promote four of the plaintiffs, waive its lengthof-service prerequisites for the next examination, and agreed to advertise in Spanish and English media to attract Hispanic applicants. Pet. App. 7a. The settlement did not impose any other hiring obligation on North Hudson. Id. Moreover, Respondents were not parties to the Rodriguez case. The Expert Reports. Respondents retained Dr. Richard Wright as their expert. Dr. Wright conducted a geographic information system (GIS) analysis, and concluded that the relevant labor market for prospective North Hudson firefighter candidates is either the whole state or the neighboring three-county area. Pet. App. 10a. Dr. Wright compared the percentage of African- Americans employed by North Hudson with the percentage of African-Americans employed in full time protective service positions in the Tri-County Area and New Jersey. Pet. App. 11a. Based on the 37.4% of protective service positions held by African-Americans in the Tri-County Area, Dr. Wright found a statistically disparity between the expected number of African-American firefighters employed by North Hudson and the actual number of firefighters employed exceeding eight standard deviations. Pet. App. 12a. Dr. Wright concluded that there is virtually

5 no probability that such disparities are the result of chance. Id. North Hudson retained Dr. Bernard Siskin as its rebuttal expert. Dr. Siskin created his own ranking list based on the scores for actual applicants on the 1999, 2002 and 2006 NJDOP examinations. Pet. App. 13a. Dr. Siskin also created separate lists based on scores of candidates in (1) Hudson County (2) the Tri-County Area, (3) a fivemile radius, or (4) a ten-mile radius. Id. Dr. Siskin found that when the residency requirement was expanded to cover the Tri-County area, six to twelve African-American applicants placed in the top thirtyfive, six to fifteen placed in the top fifty, and eleven to nineteen placing in the top ninety. Pet. App. 13a-14a. Dr. Siskin concluded that there was a non-trivial increase in African-Americans added under the Tri-County eligibility list. Pet. App. 17a. Dr. Siskin also conducted a separate analysis of the 2006 examination results (though not the 1999 and 2002 results) that excluded candidates having a substantially better rank on another eligibility list on the assumption that such candidates would not want to work for North Hudson. Pet. App. 15a. This newly reconfigured analysis showed that no African-Americans were added, as they all ranked substantially better in other municipalities. Pet. App. 16a. II. PROCEEDINGS BELOW This lawsuit was filed by Respondents NAACP, its Newark Branch, the New Jersey Conference of the

6 NAACP, and prospective fi refighter candidates Allen Wallace, Lamara Wapples, and Altarik White. Pet. App. 7a. Respondents alleged that North Hudson s residency requirement had a disparate impact on African-American candidates in violation of Title VII and New Jersey state law. Pet. App. 8a. The district court granted Respondents motion for a preliminary injunction in February 2009, and enjoined North Hudson from using its residents-only eligibility list. Pet. App. North Hudson subsequently appealed to the Third Circuit; while that appeal was pending, the Court issued its decision in Ricci. The Third Circuit remanded the case in light of Ricci. Pet. App. 8a. The district court, in an April 23, 2010 order, initially vacated its permanent injunction based upon equitable considerations. Id. The parties subsequently cross-moved for summary judgment. The district court ruled, by order of September 21, 2010, that the residency requirement violated Section 703(k), and that Ricci did not alter the court s disparate impact analysis. Pet. App. 48a-107a. The district court permanently enjoined North Hudson from using its municipal residency requirement, and ruled that residency requirements of other municipalities do not preclude the entry of a permanent injunction. Pet. App. 108a-111a. Petitioners once again fi led an appeal. The Third Circuit, after briefing and oral argument, affirmed the district court s ruling in a December 12, 2011 decision. Pet. App. 1a-44a. Petitioners filed a petition for panel rehearing and for rehearing en banc, which was denied on January 17, 2012. Pet. App. 112a. Petitioners subsequently filed a petition for a writ of certiorari on April 16, 2012.

7 REASONS FOR DENYING THE PETITION I. NEITHER QUESTION PRESENTED SHOWS A DISAGREEMENT BETWEEN OR AMONG THE CIRCUITS THAT COULD WARRANT THIS COURT S REVIEW Petitioners primary argument is that, notwithstanding the business necessity defense codified in Section 703(k), Ricci provides employers an extra-statutory affirmative defense when purportedly faced with the prospect of a disparate treatment lawsuit. Yet Petitioners have failed to identify any court of appeals decision that supports their defense, much less a division of authority amongst the circuits. Petitioners effectively concede that the decision below did not conflict with the decision of another United States court of appeals on the same important matter. Rule 10. Every court of appeals since Ricci has reaffi rmed that the business-necessity affirmative defense continues to apply in Title VII disparate impact cases. Briscoe v. City of New Haven (2d Cir. 2011), cert. filed Feb. 15, 2012; Bennett v. Nucor Corp., 656 F.3d 802, 817 (4th Cir. 2011); Grant v. Metro. Gov t of Nashville & Davidson County, 446 Fed. Appx. 737, 741, n.7 (6th Cir. 2011); Lewis v. City of Chicago, 643 F.3d 201, 204 (7th Cir. 2011); Terry v. City of San Diego, 380 Fed. Appx. 591, 593 (9th Cir. 2010); Menoken v. Berry, 408 Fed. Appx. 370, 372 (D.C. Cir. 2010)(per curium). 2 Such unanimity demonstrates that the disparate impact statutory scheme is working as Congress intended it to. 2. Petitioners cite United States v. Brennan, 650 F.3d 65 (2d Cir. 2010). Yet Brennan was not a disparate impact case but rather a reverse discrimination disparate treatment case. 650 F.3d at 93.

8 Although Petitioners fail to identify a disagreement between or among the Circuits, they nonetheless seek to tie this case to the City of New Haven s pending petition in Briscoe (11-1024). Petitioners contend that the issues in these cases are so overlapping, it would be efficient for them to be considered together. Petition at 11. Yet New Haven s case-specific petition, which is tied to Ricci s unique facts and procedural history, leaves little doubt that New Haven itself is not seeking an expansive reading of Ricci, as Petitioners urge here. New Haven s primary argument is that Ricci bars a subsequent disparate impact lawsuit in that particular case. For example, New Haven faults the Second Circuit for fail[ing] to give this Court s decision binding, stare decisis effect. Petition at 14. More pertinently, New Haven maintains that regardless of how the [strong basis in evidence] standard might apply in any other case, this Court plainly stated in Ricci that it is satisfied for this disparate-impact suit. Id. at 19 (emphasis in original). Respondents respectfully disagree with New Haven s interpretation of Ricci. But New Haven s petition, even on its own terms, does not provide any compelling basis for the two cases to be considered together. New Haven is not even arguing that Ricci applies to disparate impact cases where there was no antecedent finding of disparate treatment liability under the strong basis in evidence standard. It instead argues more narrowly that the Second Circuit did not comply with the Court s mandate in Ricci. Regardless of how the Court disposes of New Haven s petition, review is not warranted in this case.

9 Petitioners have also failed to identify any circuit split with respect to their second question presented concerning other municipalities practice. Indeed, Petitioners have failed to cite any cases. Although authority on this point is limited, the circuits have firmly rejected Petitioners attempt to pit one protected class against another. See, e.g., United States v. Lee Way Motor Freight, Inc., 625 F.2d 918, 950 (10th Cir. 1979)( We are not going to be led into a racial dispute which pits one person of racial origin against a person of a different race. The only question is whether a particular claimant was afforded a genuine equal opportunity for employment. The employer is not excused from discriminating simply because he hired a member of one or more minorities. ). II. THE RULING BELOW IS CORRECT A. The Third Circuit Correctly Held That Title VII Disparate Impact Claims Remain Governed By Section 703(k) Petitioners concede that the facts in this case are not consonant with the facts in Ricci[.] Pet. 4. That is indeed correct. The City of New Haven took preemptive action before a disparate impact lawsuit was filed by declining to certify the 2003 examination. The Ricci plaintiffs argued that New Haven s good-faith belief that it would have been subject to disparate impact liability was not a valid defense to allegations of disparate treatment. Ricci, 129 S.Ct. at 2671. The Court agreed, holding that before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, it must establish a strong basis in evidence that it would have otherwise been liable for disparate impact. 129 S.Ct. at 2677 (emphasis added).

10 Yet unlike Ricci, this is a quintessential disparate impact case governed by Section 703(k). There is no record evidence that, prior to Respondents filing suit in April 2007, North Hudson t[ook] a hard look to see whether its residency requirement would have had an impermissible disparate impact. 129 S.Ct. at 2678. Indeed, North Hudson resolutely defended the lawfulness of its residency requirement even after Respondents filed suit. The Third Circuit was entirely correct in holding that because North Hudson has taken no steps to eliminate the residency requirement or otherwise adjust its policies to reduce the adverse effect, it faces a classic disparate-impact claim * * * based on the three-step inquiry dictated by the statute. Pet. App. 39a. 3 Petitioners nonetheless assert that Ricci offers a reprieve from proving business necessity. Petitioners believe that the Court engrafted an extra-statutory safe harbor defense onto Section 703(k). Pet. 12. But that is not what the Court held in Ricci. The Court emphasized that in Title VII disparate impact cases, [a]n employer may defend against liability by demonstrating that the practice is job related for the position in question and consistent 3. Petitioners assert that the Third Circuit s holding is based on a difference without distinction, as North Hudson need not change its position for Ricci to apply. Pet. 15. But that argument misconceives Ricci s holding. This Court set forth a framework that allows employers voluntarily to comply with Title VII s disparate impact provision without being subject to disparatetreatment liability by third parties. Ricci, 129 S.Ct. at 2674. The Court was in no way providing a get out of jail free card for employers such as North Hudson who defend the lawfulness of an employment practice causing an adverse impact, and make no effort to voluntarily comply with the statute.

11 with business necessity. Ricci, 129 S.Ct. at 2673 (citing 42 U.S.C. 2000e-2(k)(1)(A)(i)). The following Term, in Lewis v. City of Chicago, 130 S. Ct. 2191, 2198 (2010), the Court noted that [u]nless and until the defendant pleads and proves a business-necessity defense, the plaintiff wins simply by showing the stated elements. Those cases interpreted the Title VII disparate impact defense as Congress wrote it. The argument of Petitioners hinges on Ricci s penultimate paragraph. Petitioners claim that Ricci is so similar to the case at bar because North Hudson would have been subject to disparate-treatment liability to Hispanic firefighters who benefit from the residency requirement, yet rank poorly on the expanded Tri-County eligibility list. Pet. 14-15. The paragraph upon which Petitioners heavily rely was case-specific, referring twice to the City, not employers in general. 129 S.Ct. at 2681. Moreover, Petitioners interpretation of a single sentence in Ricci is erroneous for two fundamental reasons. First, Petitioners attempt to read the businessnecessity defense out of Title VII would contradict wellestablished principles of statutory interpretation that require statutes to be construed in a manner that gives effect to all of their provisions. United States ex rel. Eisenstein v. City of New York, N.Y., 129 S. Ct. 2230, 2234 (2009). Second, Petitioners attempt to read into Title VII an affirmative defense that Congress neither contemplated nor enacted would contradict the Court s pronouncement that [w]e do not we cannot add provisions to a federal statute. Alabama v. North Carolina, 130 S.Ct. 2295, 2312 (2010). There is no indication that the Court in Ricci intended to overrule Section 703(k) and forty years of case

12 law going back to Griggs v. Duke Power, 401 U.S. 424 (1971). Cf. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 137 (2008)( Courts do not normally overturn a long line of earlier cases without mentioning the matter. ). B. Even If Ricci Was Applicable, North Hudson Would Still Not Have A Strong Basis In Evidence To Maintain Its Residency Requirement 1. Because This Case, Unlike Ricci, Involves An Actual Violation Of Title VII, The Removal Of The Residency Requirement Cannot Be The Result Of Intentional Discrimination By North Hudson The City of New Haven was undoubtedly facing a difficult situation in Ricci, as the City was potentially liable under Section 703(k) if it certified the 2003 examination based on the statistical adverse impact shown. Ricci s strong basis in evidence standard addresses this difficulty by permitting employers to voluntarily comply with Title VII before there is a provable, actual violation. 129 S.Ct. at 2676. But in this case, there is an actual violation. The district court entered summary judgment for Respondents because North Hudson s residency requirement causes an adverse impact upon African- Americans and is not justified by business-necessity, and the Third Circuit affirmed. Petitioners contention that North Hudson would face disparate treatment liability to Hispanics if it removed the residency requirement makes little sense because, unlike in Ricci, there is no doubt that the employment practice at issue does violate Section 703(k). The Third

13 Circuit correctly noted that, if any disparate-treatment lawsuit is filed challenging the removal of the residency requirement, North Hudson can quite reasonably argue that it did not engage in intentional discrimination under Title VII because the residency requirement was removed by a federal court. Pet. App. 39a-40a. The Petitioners sole response is that the Third Circuit was itself engaging in intentional discrimination against Hispanics. Pet. 16 Yet Petitioners fail to explain how a federal court can violate Title VII s disparate treatment provision by following Section 703(k) s statutory framework and language. Petitioners also fail to cite any authority for this novel proposition. 2. Any Ricci-Type Disparate-Treatment Lawsuit Would Fail Because There Is No Evidence That The Residency Requirement Is Job-Related For The Firefighter Position Or Other Positions And Consistent With Business Necessity North Hudson s fear of a disparate treatment lawsuit is unfounded for another reason. The Ricci plaintiffs argued that the City of New Haven did not have a strong basis in evidence to discard the results of the 2003 examination because the examination was job-related and consistent with business necessity, and there were no less discriminatory alternatives. Brief for Petitioners Frank Ricci, et al., at 50-62, Ricci v. Destefano, No. 07-1428. But in this case, the Intervenors have never even asserted that North Hudson does not have a strong basis in evidence to remove the residency requirement because it is lawful under Title VII.

14 Nor could such an argument succeed. There is no record evidence demonstrating that where an individual lives on the date of hire is somehow predictive of that individual s job performance as a North Hudson firefighter or other position. Indeed, courts have consistently held that municipal residency requirements are not justified by business necessity, because you can put out fi res without having lived there there is nothing unusual about the building materials or design in [North Hudson s five member municipalities]. United States v. Town of Cicero, Ill., 786 F.2d 331, 336 (7th Cir. 1986)(Posner, J., concurring and dissenting). Because any Ricci-type disparate treatment lawsuit would fail, North Hudson s fear of liability absent the residency requirement is illusory. Petitioners argue, however, that North Hudson would have faced certain liability to Hispanics if it eliminated the residency requirement based on the Rodriguez settlement. Pet. 18. Yet Petitioners grossly distort the terms of that settlement. The only promotions envisaged in the settlement were for the named plaintiffs, Pet. App. 116a, and the only obligation was to advertise in print media. Pet. App. 118a. There was no requirement that North Hudson maintain a certain percentage of Hispanic fi refi ghters in its ranks. Moreover, the Third Circuit rightly disposed of North Hudson s contention that it successfully us[ed] the residency requirement to increase Hispanic representation, noting that the requirement was instituted before the Rodriguez lawsuit was even filed. Pet. App. 34a. The Rodriguez settlement is also unavailing because Respondents were not parties to the case. The Court has

15 emphasized that [a] judgment or decree among parties to a lawsuit resolves issues as among them, but it does not conclude the rights of strangers to those proceedings. Martin v. Wilks, 490 U.S. 755, 762 (1989). Petitioners effectively seek to preclude Respondents from filing a disparate impact action. But given that Respondents were strangers to the Rodriguez settlement, Petitioners have no cognizable basis for invoking preclusion. C. The Third Circuit Correctly Held That The Practices Of Other Municipalities That Are Not Parties To This Case Should Not Frustrate Respondents Entitlement To Make-Whole Relief The Court held in Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) that make-whole relief under Section 706(g) of Title VII should ordinarily be awarded once a violation of Section 703 has been found. The district court, after finding that North Hudson s residency requirement violated Section 703(k), entered an order permanently enjoining North Hudson from using its residency requirement to remedy that disparate impact. Pet. App. 103a. The Third Circuit affirmed, noting that the district court s order did not exceed[] the bounds of its discretion or provide[] relief that is disproportional to the harms the NAACP Plaintiffs have proven. Pet. App. 42a. Cf. Milliken v. Bradley, 433 U.S. 267, 281-82 (1977) ( [T]he nature and scope of the remedy are to be determined by the violation[.] ). Petitioners do not argue that the district court exceeded its equitable discretion in permanently enjoining North Hudson from using its discriminatory residency

16 requirement. Rather, Petitioners argue it is patently unfair, and against public policy to permit predominantly African-American jurisdictions in New Jersey to continue using residency requirements, while removing North Hudson s residency requirement benefitting Hispanic residents. Pet. 19. Despite its unlawfulness under Section 703(k), Petitioners believe the residency requirement should be maintained to place North Hudson Hispanics on equal footing with African-Americans living in the Consent Decree jurisdictions. Pet. 19. Yet Petitioners public policy argument is unsustainable both legally and factually. Petitioners have failed to cite a single case supporting their position, and the Court s precedents refute Petitioners contention. The Court held more than thirty-five years ago that denying relief to identifiable victims of racial discrimination on the sole ground that such relief diminishes the expectations of other, arguably innocent, employees would if applied generally frustrate the central make whole objective of Title VII. Franks v. Bowman, 424 U.S. 747, 774 (1976). The Third Circuit was firmly in line with Franks in holding that we have no authority to endorse discrimination against firefighter candidates who do not live in North Hudson in order to protect those who do. Pet. App. 42a. Petitioners argument founders on the facts as well. It is simply incorrect to assert that the residency requirements in predominantly African-American jurisdictions are beyond reproach, and in fact are mandated by the federal government[.] Pet. 18. Indeed, just last year the Third Circuit ruled in favor of the plaintiff in Meditz v. City of Newark, 658 F.3d 364 (3d Cir. 2011), a case challenging the City of Newark s municipal residency requirement.

17 Respondents in no way seek to deny the Intervenors equal employment opportunities. The Third Circuit was correct in pointing out that [i]f Intervenors or any other North Hudson residents believe the residency requirements of neighboring communities unlawfully discriminate against them, they remain free to challenge those employment practices. 4 Pet. App. 43a. Yet Petitioners preferred course of action - denying Respondents all relief in order to place North Hudson s residents on equal footing - is repugnant to the text of Title VII and the Court s longstanding emphasis on the importance of make-whole relief. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted, DAVID L. ROSE Counsel of Record JOSHUA N. ROSE YUVAL RUBINSTEIN ROSE LEGAL ADVOCATES, P.C. 1726 M Street NW, Suite 203 Washington, DC 20036 (202) 331-8555 daver@roselawyers.com Attorneys for the Respondents 4. Petitioners claim that it would be cost-prohibitive for North Hudson residents to challenge other municipalities residency requirements. Pet. 21. This claim is questionable given that the Intervenors have been represented by counsel throughout this litigation. Petitioners argument is also unconvincing in light of the Meditz case, which was litigated pro se.