Friday, June 05, 2009

Is it discrimination?

I've become rather fascinated with the Ricci v. DeStefano case in which in 2003 the city of New Haven, CT disregarded the test results of promotion exams for firefighters when the group which earned scores high enough for promotion did not include a single black firefighter.

The facts of the case, from

White and Hispanic candidates for promotion in the New Haven, CT fire department sued various city officials in the United States District Court for the District of Connecticut when the New Haven Civil Service Board (CSB) failed to certify two exams needed for the plaintiffs' promotion to Lieutenant and Captain. The CSB did not certify because the results of the test would have promoted a disproportionate number of white candidates in comparison to minority candidates. The plaintiffs argued that their rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, and the 14th Amendment Equal Protection Clause were violated. The federal district court granted the defendants' motion for summary judgment.

On appeal, the United States Court of Appeals for the Second Circuit affirmed. It reasoned that the CSB, by refusing to certify the results of the promotional exam, was trying to fulfill its obligations under the rules utilized by the plaintiffs in their argument and therefore was protected in its actions.

The Questions:

1) Can a municipality reject results from an otherwise valid civil service exam when the results unintentionally prevent the promotion of minority candidates?

2) Does 42 U.S.C. Section 2000e permit federal courts to relieve municipalities from having to comply with local laws that require strict compliance with race-blind merit selection procedures?

The city claims it denied all of the promotions in order to avoid a discrimination lawsuit. The city's policy is to promote only the highest scorers. However, in this case, if they had promoted the top scorers it would have included whites and one hispanic but no blacks. The city wanted to avoid a discrimination lawsuit so they threw out the results of the exam.

It's all based on Title VII of the Civil Rights Act of 1964. So I read it. According to Title VII of the Civil Rights Act of 1964, section ion 2000e-2, nothing in that subchapter requires any employer to grant preferential treatment to any individual or group "on account of imbalance which may exist with respect to the total number or percentage of persons of any race" .

As to the burden of proof of disparate impact, an unlawful employment practice based on disparate impact is established ONLY if "a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race"

An article from written by Richard Thompson Ford argues that "racial discrimination has locked minorities into poor neighborhoods with bad schools thus as a group they do not perform well on written examinations". Slate claims that the disparaged minorities can study harder as Ricci did (he took six months off work and paid $1,000 for a tutor) but that is not possible for everyone to do this because "in the real world" not everyone has equal access to this kind of opportunity--the time off and $$ for tutoring, that is. Also, should Ricci, who filed the suit, necessarily be considered the most qualified candidate (even though he had the highest score) simply because he spent more time and money preparing for the exam?

Speaking of studying harder-----what we didn't hear in the mainstream news was that Mr. Ricci is in fact dyslexic which is probably why he spent so much time and money preparing for the exam. I learned of this in the decision of the 2nd Circuit. In fact, he gave up a second job, studied thirteen horus a day, and paid someone to record his textbooks onto tapes so he could listen instead of read them.

But that did not seem to matter to the Circuit:

"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."

So, if Mr. Ricci is dyslexic, it could be assumed that his own high school education was probably much more difficult to accomplish than the average student. If he could overcome a learning disability, or rather take the necessary actions to not let it stand in his way of passing the exam, what would stop any of the other firefighters to take similar actions? Is this a matter of which is more oppressive--having a learning disability or being black?

There is a reason that only a select small number scored high enough for promotion. Our options:

1) The exam was biased against blacks.

I've not read that the exam was unfair, after all, the agency which administered the exam could not possibly know the educational, racial, or socioeconomic backgrounds of those taking the exam. How does one create an exam which is unfair to one particular race if one is not even privy to this information?

2) The firefighters who earned the highest scores were simply more knowledgeable on the subject areas.

For whatever reason, these individuals were simply more qualified than the others. Whatever means they took to achieve this, they should be applauded, those are the kind of firefighters we want to be in positions of authority in our fire companies, no? It doesn't mean that those who did not promote are not good firefighters, it simply means that whatever areas they were deficient in, they need improvement.

Remember where I mentioned earlier that in Title VII there is nothing in that subchapter requires any employer to grant preferential treatment to any individual or group "on account of imbalance which may exist with respect to the total number or percentage of persons of any race" ?

Well in my own humble opinion, the firefighters who were promoted were denied equal protection and preferential treatment was given to the black firefighters by way or not promoting the other firefighters who earned scores high enough to warrant the promotions. These firefighters were not promoted because it would have created an imbalance with respect to one certain racial group.

The city took action because they were afraid of a lawsuit. They should have promoted the firefighters as they are legally required to do so and worried about the lawsuit later. On the other hand, maybe we needed this case to remind us that just because a law exists doesn't make it right. And so what we need to do right now is change the law.

1 comment:

  1. Anonymous6/06/2009

    What we need to do, is do away with affirmative action and just promote the best man or woman for the job. This is reverse discrimination plan and simple and white people, particularly white men, battle it everyday.~ST