A Perfect Storm: "No Discrimination" Is Not "Reverse Discrimination"
If you watched Hardball with Chris Matthews over the last couple of days, you might have heard something about about the "New Haven Firefighters" reverse discrimination case. Unfortunately, if you have depended on the media coverage of the case, you're not getting the full story.
Over the last couple of days, Matthews and Pat Buchanan have engaged in heated, and very ill-informed "discussion" of the firefighters' case. Joan Walsh of Salon.com was the flak target day one. Today, Matthews hosted Frank Ricci and his attorney Karen Torre to present the plaintiffs side. and John Payton of the NAACP Legal Defense Fund, which filed an "amicus curiae" (friend of the court") brief on behalf of the City of New Haven.
Perhaps this essay will give you to details you need to understand the case.
Bear in mind the City of New Haven won a summary judgement on all counts. In other words, the firefighters case was thrown out of court. It never made it to trial. Neither the district court judge nor the appellate court found anything compelling enough in the lawsuit that needed to go before a jury.
This case has been described as the "perfect storm" of discrimination law.
While most of the coverage has centered on Firefighter Frank Ricci -- the dyslexic fireman who studied hard, who paid $1000 for a friend to turn his textbooks into audio books, who ranked 6th on his exam -- as compelling a story as his is -- he is not the center of the story.
The New Haven Fire Department, like many around the country, uses both entry-level and promotional testing to help fill their ranks. Entry-level testing is used to screen potential employees and typically measures general knowledge, math skills, reading and writing skills, and where necessary specific job knowledge. For example, a department store might test cashiers on their ability to make change (math skills), read and follow directions.
Promotional testing measures acquired job skills and knoweldge of information necessary for future performance. The military uses promotional testing to acquire a pool of candidates for promotion. Promotional testing might require the test-taker to demonstrate knowledge of regulations and rules, the proper application of those rules, policies and procedures.
In 2003, the City of New Haven's Fire Department conducted promotional testing for Lieutenants and Captains. At issue before the Supreme Court is a reverse discrimination case brought by 17 men who claim the City discriminated against them (disparate treatment) by throwing out the results of a test the City deemed to have a "disparate impact" on the minorities -- black and Hispanic -- who took the exams. Although we do not have the figures for women who took the test, no women have joined the plaintiffs, suggesting that if any women took the exam none of them passed. None of the named plaintiffs are women.
"Under the contract between the City and the New Haven firefighters' union," the district court wrote, "the written exam result counted for 60% of an applicant's score and the oral exam for 40%. Those with a total score above 70% on the exam would pass. Certified promotional lists remain valid for two years. Forty-one applicants took the Captain exam, of whom 25 were white, 8 black, and 8 Hispanic. Twenty-two of those applicants passed, of whom 16 were white, 3 black, and 3 Hispanic. (Hispanics ranked 7, 8 and 13; blacks ranked 16, 19 and 22.) Given that there were 7 Captain vacancies in the department when the tests were administered, and that the "Rule of Three" in the City Charter mandates that a civil service position be filled from among the three individuals with the highest scores on the exam, it appeared at that time that no blacks and at most two Hispanics would be eligible for promotion, as the top 9 scorers included 7 whites and 2 Hispanics."
"Seventy-seven applicants took the Lieutenant exam, of whom 43 were white, 19 black, and 15 Hispanic. Thirty-four passed, of whom 25 were white, 6 black and 3 Hispanic. There were 8 vacancies, but because all of the top 10 scorers were white, it appeared that no blacks or Hispanics would be promoted. Hispanics ranked 27, 28 and 31; blacks ranked 14, 15, 16,20, 22, and 24."
Between January and March 2004 the New Haven Civil Service Board held five hearings on the issue of whether to certify the test results.
The most important thing to remember is that passing the test is no guarantee of promotion. For every job opening, the City's "Rule of Three" mandates that the top three scorers of the candidates on the promotion list are considered for any opening. Thus it is possible for the top scorer on a given test to not be promoted. Passing the test does not equal automatic promotion.
According to the district court ruling, "During the Civil Service Board hearings, the tests results were not released by name, and therefore none of the firefighters knew where they had placed. The only information provided to the CSB and the public, including plaintiffs, was the scores by race and gender. Nonetheless, several firefighters, although they did not know where they had placed, spoke in favor of certifying the results."
New Haven contracted with a test development firm, I/O Solutions, to create an entry-level test and the promotional tests for the fire department. I/O had created the entry exams before, with apparently no problems. However in 2003, this was the first time I/O had won the request for proposal to create the promotional tests. I/O followed the RFP in the development of the tests, but according to the decision from the Federal District court, there were some issues regarding the methodology of the test design which came to light when the completed test was delivered to the city. However, I/O is not on trial here.
The City of New Haven is mandated -- as are most employers with more than 15 employees -- to follow the law according to the Civil Rights Act of 1964, specifically Title VII. The two critical prongs of Title VII require the city to refrain from discriminating against its employees by means of disparate treatment and disparate impact.
Disparate treatment means that there is a deliberate act or actions which create a discriminatory workplace. If a company purposefully constructs a means or methodology to bar minorities or others included the Act's protected classes (and that includes women, veterans, ethnic groups or nationalities, religious affiliation for example) that is disparate treatment. If the City were to make minorities take a promotional exam different or unique from the one required of its majority employees, that would be disparate treatment. If the City required one group to perform a certain set of tests or measures and score at one level, but not require another group to have to perform the same tests or measures, or scored those tests on a different scale, that is disparate treatment. If the City allows a hostile work environment to exist for one group where the intention is to drive them out of the place of employment, that is disparate treatment.
Disparate impact means that although a workplace may have neutral standards or policies in place, the unintended result is that they discriminate or impact one group more than others. For example, if a workplace has a height requirement of 5'8" for a particular job, that require may have disparate impact on women, as fewer women would be able to meet the height requirement. Disparate impact is designed to combat neutral, but discriminatory practices.
Disparate impact may also occur if an employer uses a written test which results in fewer minorities passing than four-fifths (or 80%) of the rate of the highest scoring group who pass the test.
The court wrote, "Here, the evidence shows that on the 2003 Lieutenant's exam the pass rate for whites was 60.5%, for African-Americans 31.6% and Hispanics 20%. The four-fifths score would be 48%. In other words, African-Americans had a pass rate that was about half the pass rate for Caucasians, yielding an adverse impact ratio ("AIR") of 0.59, significantly below the AIR of 0.80 that is presumed to not evidence adverse impact under the EEOC Guidelines. While the parties dispute the Captain's exam pass rate for African-Americans and Hispanics (see supra note 7), the pass rate for Caucasians was 88%, which is more than double that of minorities and thus by either party's statistic an AIR far below the four-fifths guideline is yielded. However, it is also undisputed that, because of the Rule of Three, the pass rate is not synonymous with the promotion rate, because only the top three scorers may be considered for each vacant position. Thus, the rank of the minority applicants is also a key factor. In 2003, given the number of vacancies, it appeared that at most two Hispanics and no African-Americans would have the opportunity to be promoted to Captain, and no minorities would have the opportunity to be promoted to Lieutenant."
In 1996 and 1999, New Haven gave promotional exams for Lieutenant and Captain to white, black and Hispanic firefighters. This sequence of tests was produced by a different vendor than I/O Solutions. Although those tests did not meet the EEOC's four-fifths rule, the test results of the minorities who took the test were distributed throughout the results of all the test takers -- in other words, they were not clustered at the bottom of the results, and minorities would be respresented in the promotional pool. The EEOC four-fifths rule results for the 2003 test were also well below the results from the promotional tests in 1999 and 1996.
The City's Corporation Counsel upon reviewing the results found New Haven in a no-win situation: certifying the 2003 test results left them vulnerable to a "disparate impact by examination" discrimination claim, or fight the "reverse discrimination" disparate treatment claim. The question is which takes precedence?
Reading the EEOC guidelines -- along with the findings of both the federal district court and the appellate court -- suggest New Haven's first responsibility was to do no harm by not certifying the test results and compounding the disparate impact. The lower court denied every claim of the plaintiffs: there was no disparate treatment because no one's test was certified, no one received a promotion based on either of test, the city was acting within the federal law and guidelines to not certify the test, the plaintiff's claim of "political pressure" was unfounded, the plaintiff's claim that the city was pretexting -- "making up" -- reasons not certifiy the test were unfounded, the claim for punitive damages denied. The appellate court agreed with the district court.
Frank Ricci studied hard for his exam and to do it in spite of his dyslexia. However, making him the emotional center of this case runs counter to the basic fact that according to the EEOC rules and guidelines, and federal law, the test he was administered was flawed. It would be wrong to suggest that the other test taker did not study as hard as Ricci. There is no evidence of that. One cannot draw the conclusion that the other test takers were not as smart as Ricci or the 17 who joined the lawsuit.
Ricci and the other claim that because of their test performance, and because New Haven threw out those tests, they were denied promotions. The district court disagreed: "
Plaintiffs' analogy is faulty because performing well on the exam does not create an entitlement to promotion, whereas working entitles an employee to be paid. Second, a presumptively flawed test result may not be a proper measure for determining whether anyone should be promoted."That is the situation that Ricci and his fellow plaintiffs find themselves in. He might have passed this test only because it was flawed and he wasn't the 6th most "best and brightest" after all. He was never guaranteed a promotion, just entrance into the promotion pool of considerees if he passed a certifiable test.
As for Ricci claim of "intentional infliction of emotional distress," well one could ask if a Captain or Lieutenant who gets emotionally distressed over a test is management caliber in the first place, but I won't. Question withdrawn. Here is what the court said: "Having granted defendants summary judgment on all of plaintiffs' federal claims, the Court declines pursuant to 28 U.S.C. § 1367(c) to exercise supplemental jurisdiction over plaintiffs' state law claim for intentional infliction of emotional distress."
As for the appellate court (which includes Judge Sonia Sotomayor), they were short and sweet. Here, in its entirety is their ruling:
PER CURIAM:
We withdraw our Summary Order of February 15, 2008. Ricci v. DeStefano, 2008 U.S.App. LEXIS 3293, 2008 WL 410436 (2d Cir. Feb. 15, 2008).
Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts.
We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.
CONCLUSION
The judgment of the district court is AFFIRMED.
The Supreme Court should do the same as the two lower courts. New Haven did not discriminate against Ricci or the other plaintiffs, and were obligated to not certify what is by federal standards two flawed examinations. No discrimination is not reverse discrimination.
Interesting blog, Jade. Way outside my area of expertise but I appreciate your take on this.
May 7, 2009 10:07 PM | Reply | Permalink
You neglect to mention that this caused a small firestorm (no pun intended) amongst the other judges in the District who used very strong language in calling upon the Supreme Court to hear this case.
The truly sad part of this case is that the results of the exam are not unusual. Hundreds and thousands of hours of studying is done for these tests by some candidates. They are often in competition with others who did not do as well on the entrance exam into the department in the first place.
Second and third generation firefighters (white) often do have an advantage. They know to start studying right out of the recruit academy because they watched their fathers do it. They know to cancel their social lives for the year prior to the promotional exam. They quit their part-time jobs.
This is not just a race thing. It can also be seen between candidates of the same race where one had the advantage of veteran's points on the entrance exam. The positions on promotional tests are often inverted when the artificial assistance is taken away.
If New Haven trys again, and it is a color-blind process, the results will change very little. One thing is for sure though. In New Haven's future, if they fudge the process and favor black candidates, many firefighters (of all colors) will wonder if their black officer really earned his position or if he got it because... well, just because.
May 7, 2009 11:22 PM | Reply | Permalink
It is not the role of the courts -- at any level -- to be concerned about the "thousands of hours" spent studying by the candidates.
In point of fact, based on the standards set by Title VII and EEOC guidelines, the results of the 1996 and 1999 tests should not have been certified as well. The threshhold is one which is an effective measure of disparate impact -- a race or gender (or other protected class) neutral policy with unintended biased impact.
Second, Title VII allows employers to use other means to fulfill their Title VII obligations -- means in which testing plays no part.
With regard to judges supporting the case going to the Supreme court, that point is moot, because the Supreme Court heard oral arguments on the case last week. I am still going through all of the briefs filed in the case on either side. The DOJ brief, filed in support of the City of New Haven does argue that the case should be remanded to further pursue the whether or not the City's claims of avoiding discrimination were "pretextual" for causes intentional racial discrimination.
You argument that 2nd and 3rd generation white firefighters have an advantage speaks directly to notion of "tradition" or "legacy" maintaining white fire houses, which is discriminatory in itself, providing them with an unfair advantage over fire fighters (or candidates) who do not have the same advantage of well-placed insiders to assist their entry and rise in the department.
Your argument that this is not just a "race thing," is only true in that it affects gender as well. The tests in question are promotional, not entrance, all candidates must have at least 3 years on the force to be eligible to take the Lieutenant exam.
New Haven's process for promotions -- up to 2003 -- was not "color-blind" in the sense you use the word, but disparate impact neutral, meaning the pool of potential candidates for Lieutenant and Captain contained a race (and apparently gender) representative mix which reflected the community at large.
Finally, you suggest that black candidates who received promotions only got them in an undeserved manner. Let me reverse your statement to say that those 2nd and 3rd generation white firefighters you spoke earlier can be judged in the same manner. Did they really "earn" their positions, was it because their names were O'Shaughnessy or Fitzgerald? Because they were good fire fighters or because the Fire Commissioner owed their dad a favor?
Funny, how you support -- or suggest support -- for the policies that kept fire houses and police stations lily-white, but are not so supportive of policies that seek to insure the doors are open to everyone, not just the connected few.
May 8, 2009 10:43 AM | Reply | Permalink
I have not seen the brief, but it seems to me that New Haven may have done the correct thing under the law, but there may be grounds to challenge the law itself. That said, if the test was severely (significantly) flawed the obvious remedy is to create a better test and administer it promptly so that important vacancies don't remain unfilled.
May 8, 2009 4:39 AM | Reply | Permalink
Jade, some of the passages looks like quotes but it's hard to tell. It would make it easier to read if you used more blockquotes.
I know little about the legalistic arguments which the court will be using, but the most popular arguments you hear in the public debate on this are:
1. Why should individuals who earned something be denied it because of society-wide unfairness? From an individual standpoint, isn't that unfair? I guess you'd call this the "two wrongs don't make a right" argument.
2. Are these tests really unfair, or are you making excuses for poor performance. That's the perception. I don't think it's been made clear why these tests are unfair -- how exactly is a question unfair?? -- just because the results don't turn out well for some. This could be the "equality of outcomes" vs. "equality of opportunity" argument.
There might be a good argument against both of these, but frankly, I don't think the case has been made well in a way the public can understand. (Polling on this probably bears this out.)
May 8, 2009 10:39 AM | Reply | Permalink
Apologies for the screwy-ass formatting, a problem with MovableType. Where I quoted the court docs, I prefaced with "the court wrote." All quotes came from the district court's decision, save for the last where I presented the entire appellate court ruling.
The public and media always present these cases in the "unfair" mode -- that is, "the black guy took MY promotion, the black guy didn't "earn" it, it was "given" to him." (Poor Frank Ricci, he's dyslexic, he spent $1000 dollars and it's unfair to take his promotion away from him.)
I don't think it is outcomes versus opportunity, but outcome AND opportunity versus the political pressure to dismantle civil rights. If the results of the testing had been that NO white firefighters passed, they would be suing based on disparate impact -- in other words, the test was unfair to them and biased towards minority test takers. They would use whatever part of the law would support their case.
I'll be going through all of the briefs submitted on this, and looking more closely at the track record of the test developer -- I/O Solutions -- and will post an update soon.
However, the EEOC guidelines, however convoluted its language, is pretty clear, if the test results don't meet the threshhold, there is disparate impact on those protected groups -- which by definition could include whites.
May 8, 2009 11:51 AM | Reply | Permalink
That's a real fear -- and we'd lose a lot of ground we've made. But lack of public support would make it more vulnerable, don't you think. That's why it is important to engage the arguments against it.
Tu quoque -- that wouldn't make it right, though.
One question that might come up is how exactly a test can be biased. I know there were some interviews, which are a little more subjective. But what if you had a multiple choice exam. How can it be biased? Are there questions in polish, or about Irish history or Garth Brooks? I'm being tongue in cheek, but this is the kind of this which mystifies the public and gives the impression that we just didn't like the outcome and now are going to rig the tests or get rid of testing altogether.
You're right, but that's a legalistic argument. I think its a weak basis for continued public support, since those guidelines could be changed.
If some people do badly on a test, then that alone is 'proof' that the test was flawed, not that the test takers were flawed. Isn't this circular logic? Isn't it entirely possible you just had a a group of poor students.
I think it would help if someone could show concretely the means of bias. Which questions specifically are discriminatory and causing a skewed outcome.
May 8, 2009 3:21 PM | Reply | Permalink
These type of test-creators do everything in their power to make sure that the tests to do yield "disparate impact." The fire fighters were under the pretext that if they passed they would get promoted; but the results did not meet the quota so people's individual rights were violated. It is worth noting that 2/3's of the people who evaluated the verbal portion of the test were minority.
New Hampshire should put the test up online, or print it out in a newspaper, and the public can decide if it was in fact biased towards one group or another. Why are they not doing that?
It is worth noting that Asians and Whites tend to do better on tests in general, when compared to Blacks and Hispanics (i.e. GRE, GMAT, MCAT, etc.) There is not evidence of any bias in these tests; indeed, if the test asked a question about Harlem or a question about a White area there would be bias, but there are no questions like this, and testing agencies have made every effort to make the tests as unbiased as possible. A lot of schools are throwing out standardized testing altogether in order to meet quotas.
Why are the Olympic 100m contestants always of African decent? Why is this? Why no need for AA here? How about on the basketball court? There is a lack of understanding of the topic of human biodiversity which is fueling this mess.
May 8, 2009 11:55 AM | Reply | Permalink
If an exams yields different results amongst different groups does this prove that the test was bad? Are all standardized tests "racist" (i.e. GRE, GMAT, MCAT, etc.) since different groups tend to do better than others? Ricci, an Italian-American White male, is being discriminated against because he and others have the wrong color skin.
May 8, 2009 12:21 PM | Reply | Permalink
Jade:
Thanks for going beyond the "spin" and actually analyzing the court opinions.
This case is of particular interest to me because: (1) New Haven is my home town; though I haven't lived there for 25+ years, my dad and other relatives are still there; and (2) having clerked for a federal appellate judge, I find the "disparate impact" discussions interesting.
That being said, what concerns me about what the Court may do with this case is not the Title VII aspect, but the Equal Protection angle, as I believe the Court granted certiorari on both issues. The Republican appointees could try to use this opporutnity to completely rewrite equal protection law, in the guise of stating that the Constitution needs to be "color blind," and severely limiting government attempts to remedy past employment discrimination.
Take a look at the transcript of the oral argument; it's pretty illuminating as to where the justices are coming from. Justice Souter's questions and comments point out the problem that New Haven faced. If it did not throw out the test scores, it would have been sued on a "disparate impact" basis. His point was that New Haven was in a "damned if you do, damned if you don't" situation.
It will likely be, as most recent high profile cases have been, 5-4, with Kennedy the deciding vote. I'm predicting a reversal. It's not how I would decide the case, just an academic "guess" on my part. I've been wrong before, though.
May 12, 2009 10:31 AM | Reply | Permalink
Jade,
Either you are purposely ommitting information or you are not knowlegable about the "4/5's rule" of disparate impact and bona fide occupational qualification.
You are trying to base YOUR opinion of the New Haven case on Griggs v. Duke Power Company (1971) in wich the SCOTUS ruled that a disparate impact exsists, even if the impact is unintentional, if it runs counter to the 4/5's rule. Prior to Griggs, it had to be shown that the disparate impact was intentional.
A subsequent SCOTUS ruling in Albermarle Paper Company v. Moody (1975) stated that a test COULD be valid even though there WAS disparate impact if the promotion test could be shown to be related to job performance. Therefore, departments CAN require a standard, even though the standard may have a disparate impact if the standard can be shown to be a valid predictor of job performance.
This exception to disparate impact standard was later upheld by SCOTUS in Davis v. City of Dallas (1985) when Davis sued the Dallas Police Dept by asserting that the DPD's 45 college hour requirement discriminated against minorities. SCOTUS ruled that because of the complex nature of the job, the 45 hour rule was a BONA FIDE OCCUPATIONAL QUALIFICATION and therefore is permissible under Title VII, even though it created disparate impact.
The City of New Haven has used tests in the past that indicated the tests were, in fact, a valid predictor of performance and thus a BFOQ.
New Haven admitted they were afraid of being sued by minorities based on disparate impact as a reason for not certifying the results of the test. Fear of being sued and fear of disparate are two different issues. And fear of being sued is not excuse to discriminate against any person or group.
As a practical matter, the "tests" in the above listed cases were not tests of the kind used by New Haven in the case before SCOTUS now. The New Haven test was very specific in its parameters, study material, and study time. ALL applicants knew the date the test was announced, the date the test would be given, and the material to be covered on the test so everyone had the same chance to succeed or fail.
SCOTUS will rule in favor or Ricci in this case.
As a matter of course, I am hispanic and just took a promotion exam for a large police department. For the 45 day study period, I studied 12-14 hours a day EVERY DAY and my score of 98 on the test reflected that. Those who did not put in the same amount of time, black white hispanic or asian, did not score as well and the only people they have to blame is themselves.
June 2, 2009 6:43 PM | Reply | Permalink
The point that SeeVee makes, and that many firefighters and police officers try to make, is that everyone overlooks the most obvious possibility: what if some candidates studied longer and harder than others? What if those 20 candidates really are the best 20?
The racial/ grade disparities on this test are right at the national norms. New Haven has dumbed down the entrance requirements to their department so they could hire more minorities. Why would we think that those minorities had gotten markedly “smarter” relative to civil service testing?
The Interview Panels were made up of primarily minorities!
Discrimination is discrimination regardless of the excuses one cooks up.
June 9, 2009 6:38 PM | Reply | Permalink
Told you so.
June 29, 2009 4:07 PM | Reply | Permalink