What’s the Alternative?

By Bill Wright

FEMA Employees sued when FEMA closed its Puerto Rico-based call center. The call center was originally a “temporary” center set up to address calls from Spanish-speaking victims of a hurricane. The leased facility was inadequate for a permanent call center; working there posed employee health and safety risks. FEMA let the lease expire and discharged the employees. Abril-Rivera et al. v. Johnson, No. 14-1316 (1st Cir. July 30, 2015).

The employees alleged that targeting the Puerto Rico-based center for closure had an adverse impact on employees living in Puerto Rico. Yes, the court noted that “living in Puerto Rico” is not a protected status, but the court relied more on the Supreme Court’s recent ruling in a Fair Housing Act case. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., No. 13-1371. (U.S. June 25, 2015). The Supreme Court instructed the courts to pay special attention to legitimate business needs in disparate impact cases. The court here noted that FEMA had legitimate business reasons to close the call center –the health and safety of the workers – and the plaintiffs offered no evidence of an alternative that would have had less disparate impact and would have served the legitimate needs. FEMA could have done a nation-wide layoff of poor performers instead of closing the Puerto Rico call center, but how would that have solved the safety problems at the call center?

It pains us to admit it, but John Doran was right. He told us the Supreme Court’s recent FHA decision would have Title VII implications. The case supports the circuit court’s decision; plaintiffs must show how employers could accomplish their legitimate business needs with less disparate impact.