Court was right to douse ‘disparate impact’ fire

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Robyn Blumner
Monday, July 6, 2009

Were the tests job-related? That is where you have to start when considering the case of whether white firefighters in New Haven, Conn., were discriminated against when the city dumped a set of promotional exams after no African-American firefighter scored highly enough to be promoted.

When race is involved no case is minor, but Ricci v. DeStefano gained blockbuster status after the Supreme Court nomination of Judge Sonia Sotomayor. She was part of an appellate panel that threw out the claims of the 18 white firefighters, one of whom is Hispanic, who lost out on promotions due to the cityís actions.

I believe that she and her fellow appellate judges were wrong as a matter of law and basic fairness.

Firefighter Frank Ricci said that due to his dyslexia he paid his neighbor to read instructional materials onto tapes and studied 8-13 hours a day. Other firefighters also studied hard and spent significant sums on study materials. They should have been rewarded for doing well. Thatís the fairness part.

But the legal guts of this case turn on the tests themselves. Did they test the breadth of knowledge and situational skills needed for the job of fire captain or lieutenant? If so, then it shouldnít matter that exams had a ďdisparate impactĒ on black firefighters, who, as a group, didnít perform as well as whites.

The nationís civil rights laws also protect white firefighters from having their ambitions squelched due to their race. Last Mondayís 5-4 ruling by the Supreme Court said as much.

In the majority opinion by Justice Anthony Kennedy and joined by the courtís conservatives, the court said that test results cannot be discarded for the purposes of racial balance unless there is a strong showing that the test is deficient or there were other equally valid but less discriminatory tests readily available.

First, we should acknowledge that the very reason cities like New Haven use combination written/oral exams as a basis for promotion is because they measure knowledge and skill. This is a huge improvement over the nepotism, political patronage and overt racism that used to drive firehouse employment decisions.

And as to the tests given these firefighters in 2003, the city did its level best to ensure that they were unbiased and germane.

It hired a national firm experienced in the development of testing protocols for fire departments. The firm interviewed incumbent captains, lieutenants and their supervisors, and participated in ride-alongs in order to gain a real-life understanding of New Havenís fire department operations.

Based on all this, questionnaires were developed and administered to the departmentís battalion chiefs, captains and lieutenants. Those answers plus department training materials were used to design the written questions, using language below a 10th-grade reading level.

On the oral exam, candidates were given a series of hypotheticals to test their incident-command skills, firefighting tactics and leadership abilities. The 30 assessors came from similar-size fire departments and held ranks higher than the candidates. Each three-member panel of assessors had two minority members.

But in the end, the pass rate for minority candidates was about half that of whites. When the results became known in a city that was increasingly minority, it was explosive. After a series of raucous public hearings tinged with racial overtones, the Civil Service Board refused to certify the tests.

To my mind, the real point of disparate-impact discrimination is to ferret out insidious bigotry by employers who use employment criteria that appears neutral but is really a subtle attempt to disqualify certain racial groups. Racial disparities alone donít prove discrimination. They should just provoke a closer look to see if the criteria is really job-related. And in New Havenís case it was.

The courtís dissenters argued that a written test for a firefighter is inherently racially discriminatory, and more practical assessments are better gauges of leadership and skill. Hereís my alternative suggestion to those who failed to qualify for a promotion, a group that included dozens of white candidates: Study harder next time.

Robyn Blumner is a civil liberties and labor law expert who writes about individual freedom, trade, globalization and workersí rights. She is a columnist for the St. Petersburg Times in St. Petersburg, Fla., and syndicated by Tribune Media Services. E-mail her at blumner@sptimes.com.

Last updated: 11:00 am Thursday, December 13, 2012

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