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CLEVELAND FIREFIGHTERS v. CITY OF CLEVELAND

No. 09-4208.

669 F.3d 737 (2012)

CLEVELAND FIREFIGHTERS FOR FAIR HIRING PRACTICES, et al.; Cleveland Firefighters, Local 93 IAFF, Plaintiffs-Appellees, v. CITY OF CLEVELAND, et al., Defendants. Lamont C. Headen; Sherman E. Kitchen; Jerry L. Lett; Harned R. Gaitor, Plaintiffs-Appellants, Vanguards of Cleveland, Intervenor Plaintiff-Appellant, v. City of Cleveland, et al., Defendants-Appellees.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 27, 2012.

Attorney(s) appearing for the Case

ARGUED: E. Richard Stege, Jr. , Stege & Michelson Co., LPA, Cleveland, Ohio, for Appellants. Andrew P. Fleming , Chiacchia & Fleming, LLP, Hamburg, New York, Kevin J. Gibbons , City of Cleveland, Department of Law, Cleveland, Ohio, for Appellees. ON BRIEF: E. Richard Stege, Jr. , Stege & Michelson Co., LPA, Cleveland, Ohio, for Appellants. Andrew P. Fleming , Chiacchia & Fleming, LLP, Hamburg, New York, Kevin J. Gibbons , City of Cleveland, Department of Law, Cleveland, Ohio, Daniel A. Powell , Thomas M. Hanculak , Law Offices of Joseph W. Diemart & Associates, Cleveland, Ohio, for Appellees.

KETHLEDGE, J., delivered the opinion of the court, in which McKEAGUE, J., joined. KEITH, J. (pp. 743-56), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

At most the Constitution barely tolerates a public employer's decision to hire or reject a job applicant based upon her race. Race-neutrality is the promise of the Equal Protection Clause; and the law permits a public employer to depart from that rule only reluctantly, in circumstances limited in both scope and duration. Namely, a public employer can hire or reject applicants based upon their race only to the extent, and...

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