Supreme Court backs white firefighters in Ricci case: The End of Affirmative Action?

[djmarbll]

"WASHINGTON (CNN)The U.S. Supreme Court sided Monday with white firefighters in a workplace discrimination lawsuit, a divisive case over the role race should play in job advancement.In the split 5-4 vote, a majority of the justices ruled that the city of New Haven, Connecticut, improperly threw out the results of promotional exams that officials said left too few minorities qualified. One Latino and no African-American firefighters qualified for promotion based on the exam; the city subsequently decided not to certify the results and issued no promotions. A group of 20 mostly white firefighters sued, claiming reverse discrimination. High court nominee Judge Sonia Sotomayor heard the case on her federal appeals court last year and sided with the city.The Supreme Court was being asked to decide whether there was a continued need for special treatment for minorities, or whether enough progress has been made to make existing laws obsolete, especially in a political atmosphere in which an African-American occupies the White House."Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," wrote Justice Anthony Kennedy for the majority.The case has received added attention because Sotomayor was on the appellate court that dismissed the appeal.Sotomayor was part of a three-judge panel that ruled in February 2008 to uphold a lower court decision supporting New Haven's move to throw out the results.In June 2008, Sotomayor was part of a 7-6 majority that denied a rehearing of the case by the full court. Legal analysts said they expect Republicans on the Senate Judiciary Committee will want to ask Sotomayor about her role in that case as well as her comments about ethnicity and the bench."

I have a problem with this because this case was never about racial disparity (as the Wall Street Journal and conservatives incorrectly assert), but about test validity. I mean some of the geographical questions had nothing to do with New Haven at all, and if the test was truly valid, more african-Americans would have done better like they had done on previous tests in the past. Even experienced firefighters who had already passed a different test for supervisor abilities said this test was flawed and had contradictory information. I think the effectiveness of the Civil Rights Act is under serious scrutiny at this point, especially Title VII, which deals with racial disparity in the workforce.
This also puts Sotomayor under further scrutiny by the right since he she voted in favor of the two previous courts who sided with the city for throwing out the tests after it was decided by an independent review board after 5 days of expert testimony on both sides that pretty much proved the test was flawed. Now that the Supreme Court has decided in favor of the right and Ricci, it makes me wonder if they even looked at the two previous courts evidence toward their decision-making at all.

[The Buddy Love Show]

I dont think this case should be used to assess the current condition of affirmative action. This case was fairly strange in that the city acted fairly capriciously, and in my opinion, did unfairly discriminate based on race in order to correct past racial injustice. The test may or may not have been flawed. (I dont think that thats has been determined )

The key words in the above story were "20 mostly white firefighters sued". What isn't disclosed is that two latino firefighters also qualified for promotion.

http://news.yahoo.com/s/ap/20090629/...ghters_lawsuit


White firefighters win Supreme Court appeal



WASHINGTON – The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could give Sotomayor's critics fresh ammunition two weeks before her Senate confirmation hearing. Conservatives say it shows she is a judicial activist who lets her own feelings color her decisions. On the other hand, liberal allies say her stance in the case demonstrates her restraint and unwillingness to go beyond established precedents.
Coincidentally, the court may have given a boost to calls for quick action on her nomination.

The court said it will return Sept. 9 to hear a second round of arguments in a campaign finance case, and with Justice David Souter retiring there would be only eight justices unless Sotomayor has been confirmed by then.

In Monday's ruling, Justice Anthony Kennedy said, "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions." He was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday. Speaking dismissively of the majority opinion, she predicted the court's ruling "will not have staying power."

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

Sen. Patrick Leahy, chairman of the Judiciary Committee, said Sotomayor should not be criticized for the unsigned appeals court decision, which he asserted she did not write. "Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent," said the Vermont Democrat who will preside over Sotomayor's confirmation hearings next month.

Leahy also called the high court decision "cramped" and wrong.

In New Haven, Nancy Ricci, whose son, Frank, was the lead plaintiff on the lawsuit, carried a large cake decorated with red, white and blue frosting into the law office where the firefighters were celebrating their victory.

Ricci's father, Jim Ricci said the ruling is a victory for firefighters across the country. "Now we're going to get the best managers as far as firefighters go. That's really important," Ricci said.

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty-six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law's prohibition on intentional discrimination. The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.

Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."

But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.

"Today's decision sets these paired directives at odds," she said.

[The Buddy Love Show]

Here is the decision:

http://www.supremecourtus.gov/opinio...df/07-1428.pdf

[djmarbll]

The yahoo artcile did the same thing the WSJ article did.
Neither included the fact that the test was found to be invalid by firefighters who had previously passed a different test, neither included the fact that the city had a 5-day civil review board look at the test results before throwing them out. Ironically, the one African-American on the review board excused himself so it wouldn't look like the review board was biased (white privilege runs deeep). The civil review board actually was against the city throwing the test results out until after they heard the 5-day testimony. Neither article pointed out that the makers of the test did NOT provided the city of New haven with methodology they used to score the test, and this was part of the contract the test-makers had with the city. In essence, the city threw the test out strictly because of it's invalidity, which could have led to a lawsuit invoking Title VII of the Civil Rights Act of 1964.
Now I do agree that a test shouldn't be thrown out because of race and the "potential" for a lawsuit. But this test, was shown to be invalid based on 5-days of testimony that is independent of race at all. The fact that yahoo and the Wall Street Journal don't report that is what made this a race issue in the first place, when it was ALWAYS about test validity.

[The Buddy Love Show]

From Ginsburgs dissent (page 73 of the above pdf text):

"In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteriaoperating to the disadvantage of minority group members can be retained only if justified by business necessity.5 In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination“because of” race. A reasonable endeavor to comply withthe law and to ensure that qualified candidates of all raceshave a fair opportunity to compete is simply not whatCongress meant to interdict. I would therefore hold that an employer who jettisons a selection device when itsdisproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. Cf. Faragher v. Boca Raton, 524 U. S. 775, 806 (1998) (observing that it accordswith “clear statutory policy” for employers “to prevent violations” and “make reasonable efforts to discharge their duty” under Title VII)."

[The Buddy Love Show]

Originally Posted by djmarbll

Now I do agree that a test shouldn't be thrown out because of race and the "potential" for a lawsuit. But this test, was shown to be invalid based on 5-days of testimony that is independent of race at all. The fact that yahoo and the Wall Street Journal don't report that is what made this a race issue in the first place, when it was ALWAYS about test validity.

You make some great points


However, from my reading of Ginsburg's dissent, this is exactly what the city did ( they threw out a test because of race and the "potential" for a lawsuit.)


btw, I happen to agree w Ginsburg to an extent: its always about race (she talks about the hsitoric nature of racial bias in fire departments across the country)

Its an interesting case but i think it's an aberration

Great topic for conversation

Thanks

[djmarbll]

Originally Posted by Palatine William Wilson

Here is the decision:

http://www.supremecourtus.gov/opinio...df/07-1428.pdf

I can't open the file on my Blackberry, but I'll check it out when I get near a pc. It seems to me though that the majority decision is based more on what could have happened as a result of racial disparity of the test and not the invalidity of the test itself, which was the deciding factor in the first two court decisions to throw the test out. In essence, the Supreme Court actually goes against Title VII of the Civil Rights Act (the precedent set by Title VII prohibits testing that creates a disparate amount of results when alternative testing exists that creates a less disparate amount of inequality and is proven to be valid, which was the case here) order to decide this case.

[djmarbll]

Originally Posted by Palatine William Wilson

From Ginsburgs dissent (page 73 of the above pdf text):

"In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteriaoperating to the disadvantage of minority group members can be retained only if justified by business necessity.5 In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination“because of” race. A reasonable endeavor to comply withthe law and to ensure that qualified candidates of all raceshave a fair opportunity to compete is simply not whatCongress meant to interdict. I would therefore hold that an employer who jettisons a selection device when itsdisproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. Cf. Faragher v. Boca Raton, 524 U. S. 775, 806 (1998) (observing that it accordswith “clear statutory policy” for employers “to prevent violations” and “make reasonable efforts to discharge their duty” under Title VII)."

Thanks for posting this as I'm having a problem viewing the PDF on my device. One problem I have with this argument though is that the New Haven Fire Dept. isn't a business in the traditional sense of the word since it's supported by taxpayer money and doesn't exist to make a profit. I would think the application and enforcement of Title VII become even more important within a municipal organization?

[djmarbll]

Originally Posted by Palatine William Wilson

You make some great points


However, from my reading of Ginsburg's dissent, this is exactly what the city did ( they threw out a test because of race and the "potential" for a lawsuit.)


btw, I happen to agree w Ginsburg to an extent: its always about race (she talks about the hsitoric nature of racial bias in fire departments across the country)

Its an interesting case but i think it's an aberration

Great topic for conversation

Thanks

That's what I'm having a problem with. It was reported the city just threw the results out. Yahoo and the WSJ editorial board reported this, but they never mentioned that the city saw severe racial disparity from test results which caused them to have a 5-day civil review board in the first place. After the review came to the conclusion that the test was actually flawed (not just based on test results, but in how the test was created, how it was scored, and how the methodology of testing was never explained to the city of New Haven, which was a direct violation of contract). In addition, it was shown that other less disparate tests were given in areas around New Haven that had much less disparate results regarding the qualifications of so-called minorities as supervisors. I think the biggest mistake the city made was throwing the test out altogether, even though it was proven to be flawed. Had the city just slightly altered the test to:
1) Eliminate the questions that were geographically incorrect,
2) Eliminate the questions in which the correct answers were in direct contradiction to New Haven firefighting policy,
3) Eliminate the multiple-choice questions in which ALL the answers were in direct contradiction to New Haven firefighting policy, the results would have been quite different as previous (and more conceptually valid) tests have shown.
What scares me about the decision isn't that Ricci is necessarily less-qualified than any African-American or Latinos who took the test or visa-versa (I honestly think Ricci and the African-Americans would have scored higher had the test been more relevant to the city of New Haven). My fear is that Title VII of the Civil Rights Act will have less weight in proving racial discrimination because now an intent to discriminate will have to be shown even when the numbers already show racial disparity (and a pretty flawed test in this case). Racial disparity might not hold weight as an argument anymore, even when African-Americans are qualified for the positions as this case eventually showed.
Thanks for participating in the discussion with me. I've kinda been following this case since Sean Hannity and Curtis Sliwa mentioned it on their radio shows back in April.

[The Buddy Love Show]

Originally Posted by djmarbll

That's what I'm having a problem with. It was reported the city just threw the results out. Yahoo and the WSJ editorial board reported this, but they never mentioned that the city saw severe racial disparity from test results which caused them to have a 5-day civil review board in the first place. After the review came to the conclusion that the test was actually flawed (not just based on test results, but in how the test was created, how it was scored, and how the methodology of testing was never explained to the city of New Haven, which was a direct violation of contract). In addition, it was shown that other less disparate tests were given in areas around New Haven that had much less disparate results regarding the qualifications of so-called minorities as supervisors. I think the biggest mistake the city made was throwing the test out altogether, even though it was proven to be flawed. Had the city just slightly altered the test to:
1) Eliminate the questions that were geographically incorrect,
2) Eliminate the questions in which the correct answers were in direct contradiction to New Haven firefighting policy,
3) Eliminate the multiple-choice questions in which ALL the answers were in direct contradiction to New Haven firefighting policy, the results would have been quite different as previous (and more conceptually valid) tests have shown.
What scares me about the decision isn't that Ricci is necessarily less-qualified than any African-American or Latinos who took the test or visa-versa (I honestly think Ricci and the African-Americans would have scored higher had the test been more relevant to the city of New Haven). My fear is that Title VII of the Civil Rights Act will have less weight in proving racial discrimination because now an intent to discriminate will have to be shown even when the numbers already show racial disparity (and a pretty flawed test in this case). Racial disparity might not hold weight as an argument anymore, even when African-Americans are qualified for the positions as this case eventually showed.
Thanks for participating in the discussion with me. I've kinda been following this case since Sean Hannity and Curtis Sliwa mentioned it on their radio shows back in April.

I think the city got scared when they saw the results of the test, panicked, and acted prematurely. It seems that every applicant who took the test passed however not all applicants scored at the very top to be considered for promotion. I think some of Ginsburgs arguments revolve around why that happened.

From my reading of the issues, the city did not initially make any effort to determine if the test was flawed. Their decision to toss was based strictly on the fact that no African Americans passed w high enough scores to move on. In other readings it seems as if there is a reasonable disagreement over whether or not the test is flawed.

As I said earlier I think this case is an aberration and won't have much of an effect on the current laws (I hope)

[jimmymack-2000]

Originally Posted by djmarbll

Had the city just slightly altered the test to:
1) Eliminate the questions that were geographically incorrect,
2) Eliminate the questions in which the correct answers were in direct contradiction to New Haven firefighting policy,
3) Eliminate the multiple-choice questions in which ALL the answers were in direct contradiction to New Haven firefighting policy, the results would have been quite different as previous (and more conceptually valid) tests have shown.

I don't understand the crux of your argument...are you saying these "20 mostly white firefighters" have a worse grasp of geography (or a better grasp of incorrect geography), and are unaware (or do not follow) the policies of their employer?

In other words, by using this test the only way you'll get promoted to captain or lieutenant in the New Haven F.D. is if you're incompetent?

[djmarbll]

Originally Posted by Palatine William Wilson

I think the city got scared when they saw the results of the test, panicked, and acted prematurely. It seems that every applicant who took the test passed however not all applicants scored at the very top to be considered for promotion. I think some of Ginsburgs arguments revolve around why that happened.

From my reading of the issues, the city did not initially make any effort to determine if the test was flawed. Their decision to toss was based strictly on the fact that no African Americans passed w high enough scores to move on. In other readings it seems as if there is a reasonable disagreement over whether or not the test is flawed.

As I said earlier I think this case is an aberration and won't have much of an effect on the current laws (I hope)

I hope you're right my man. At best this case is an aberration, at worst this case gives the Center for Individual Rights ammunition they need to pursue "reverse discrimination" cases all over the country and end affirmative action altogether. They've already won cases in Texas, Michigan, Louisiana, and Mississippi. And they've been supported by organizations like the Pioneer Fund, who's controversial work regarding the genetic differences between blacks and whites got them in trouble.

[djmarbll]

Originally Posted by jimmymack-2000

I don't understand the crux of your argument...are you saying these "20 mostly white firefighters" have a worse grasp of geography (or a better grasp of incorrect geography), and are unaware (or do not follow) the policies of their employer?

In other words, by using this test the only way you'll get promoted to captain or lieutenant in the New Haven F.D. is if you're incompetent?

My point is that the test in and of itself was flawed. This was the testimony of firefighters and industrial psychologists. So throwing the test out or altering it would be better than accepting the results of it.
Imagine if you're testing for the bar and some of the test questions include answers that are all wrong or defy the American Bar Association, do you keep those results, even though no whites scored as high as the blacks or do you throw the test out after a 5-day review shows the test itself is flawed since blacks and whites are historically shown to score similarly?
This isn't about incompetence, adhering to company policy, geography, or even race. This is about a flawed test that brought up red flags and was found to be incompetent on its own by an independent review board. Hence, this test doesn't even test for what the New Haven fire dept was looking for in supervisory candidates. So if Ricci really wanted to celebrate, why not celebrate passing a test that actually tests to what he applied for?

[djmarbll]

Originally Posted by jimmymack-2000

I don't understand the crux of your argument...are you saying these "20 mostly white firefighters" have a worse grasp of geography (or a better grasp of incorrect geography), and are unaware (or do not follow) the policies of their employer?

In other words, by using this test the only way you'll get promoted to captain or lieutenant in the New Haven F.D. is if you're incompetent?

Also, the alterations I mentioned regarding the test weren't the initial red flag. The first red flag was when African-Americans scored disparately lower on a test they usually do much better on historically. That's what led to the civil review board's hearing of the test. That is where they really found out how flawed the test was. I think this is going to be a pivotal piece of legislature regarding Sotomayor's nomination.

[Rufus P. Funk]

I decided to bring some of the views and light brought on the matter back to another forum that I frequent here locally in Dallas (don't try to join because outside of a select few individuals it is all charged by intolerance of opinion and just a sounding board for stupidity more often than not).

I gave the Awareness and Politics gang a glimpse at this topic from DHP's perspective so in return, I give you some of their return dialogue:

http://www.dallasdancemusic.com/foru...ml#post3805587

[djmarbll]

Originally Posted by Rufus P. Funk

I decided to bring some of the views and light brought on the matter back to another forum that I frequent here locally in Dallas (don't try to join because outside of a select few individuals it is all charged by intolerance of opinion and just a sounding board for stupidity more often than not).

I gave the Awareness and Politics gang a glimpse at this topic from DHP's perspective so in return, I give you some of their return dialogue:

http://www.dallasdancemusic.com/foru...ml#post3805587

Thanks for posting this. I read thru the posts and some make good points, especially about New haven being sued before by black firefighters, which would have spawned fear into them making a rash decision regarding this test in the first place. Like I said, the city didn't just trash the results the next day, and ultimately found that the test itself was an invalid indicator of ability. That's the bottom line. And to be promoted on the basis of a flawed exam should not be a right the Supreme Court can grant you. Even the test makers admitted to having answers on the exam that could be open to dispute. Also the specific references I gave regarding the questions were brought up by experienced firefighters who saw the test, not me. So the poster who replied I didn't know what I was talking is disrespectful to those firefighters. In addition, one industrial psychologist noted how blacks who usually ranked between 3rd and 5th on previous exams had dropped to 13th and 15th o the lieutenant and captain's exams respectively, which was another reason among several why the test's validity came into question. Also, experts from the civil review board noted how alternative methods of testing would have been better indicators of genuine ability toward a supervisory position than a multiple-choice test. This is something Ginsburg brought up in her statement of dissent as well. So there are several factors involved in why the city threw the test out. In all honesty, promoting diversity had nothing to do with it, as the Wall Street Journal and conservatives would have us believe. It's funny how they pulled the race card this time when blacks get blamed for pulling it everyday.

[Bill Blake]

I’m still confused as to how the test is racially biased?

[djmarbll]

Originally Posted by Bill Blake

I’m still confused as to how the test is racially biased?

The test isn't racially biased at all. The results of the test had a disparate amount of racial make-up among those who passed, which was a red flag because historically the results were much different, and the city didn't wanna get sued again by African-Americans who could have used Title VII of the Civil Right Act of 1964 as leverage. That red flag (and probably the fear of litigation) caused the city of New Haven to conduct a 5-day hearing with a civil review board of experts arguing for and against the validity of the test. It was found the test had several flaws including some the test-makers themselves alluded to. This is why the test was thrown out two previous times in lower courts.

[Rufus P. Funk]

Originally Posted by djmarbll

Thanks for posting this. I read thru the posts and some make good points, especially about New haven being sued before by black firefighters, which would have spawned fear into them making a rash decision regarding this test in the first place. . .

No problem. I'm a firm believer in turnabout is fair play, so I wouldn't dare to just offer them a glimpse in and not do so in return (plus I am not one to just cop words that I didn't pen/create myself without honoring the source).

[djmarbll]

By Steven Greenhouse
updated 5:48 a.m. ET June 30, 2009

In ruling for a group of white firefighters in New Haven on Monday, the Supreme Court tried to address a damned-if-you-do, damned-if-you-don’t quandary for many cities and other employers: what they should do when an employment test yields results that overwhelmingly favor whites.

But many legal experts said that instead of setting forth clear new rules, the court’s decision left things as muddled as ever for the nation’s employers — and seemed to ensure much more litigation over the explosive issue of employment discrimination.

“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program director with the National League of Cities. “This is going to be good for employment lawyers.”

The 5-to-4 ruling applies largely to public-sector hiring and to civil service exams, but could also affect private employers that use tests or other screening methods. The court said that if an employer used a hiring or promotion test, it generally had to accept the test’s results — unless the employer had strong evidence the test was flawed and improperly favored a particular group.

With the court’s ruling making it harder for cities and other employers to throw out tests they conclude are unfair, employers are expected to work harder to make sure their written tests — indeed their entire selection process — are fair.

“The ruling gives employers less flexibility to change the selection process once it’s established,” said Katharine Parker, a lawyer with Proskauer Rose who is chairwoman of the Labor and Employment Committee of the New York City Bar Association. “As a result, employers will want to try to establish bulletproof selection criteria.”

Some may abandon written tests altogether.

To avoid charges of discrimination, many cities have already been moving away from such tests in favor of other methods of hiring and promoting employees in places like fire and police departments. They say written tests are often not the best way to determine who can perform best.

In New Haven, city officials, having concluded that their written test was flawed, said there was another, trusted method to select firefighting lieutenants and captains that posed less of a disadvantage to blacks and Hispanics. That method relies largely on assessment centers where applicants are evaluated in simulated real-life situations to see how they would handle them.

Supporters of the idea say assessment centers do far better than written exams in measuring leadership and communications skills and an applicant’s ability to handle emergencies.

Bridgeport, Conn., uses that approach, and its ranks of fire lieutenants and captains are, unlike New Haven’s, largely proportionate to the city’s black and Hispanic populations.

[El Mayimbe]

Originally Posted by djmarbll

By Steven Greenhouse
updated 5:48 a.m. ET June 30, 2009

In ruling for a group of white firefighters in New Haven on Monday, the Supreme Court tried to address a damned-if-you-do, damned-if-you-don’t quandary for many cities and other employers: what they should do when an employment test yields results that overwhelmingly favor whites.

But many legal experts said that instead of setting forth clear new rules, the court’s decision left things as muddled as ever for the nation’s employers — and seemed to ensure much more litigation over the explosive issue of employment discrimination.

“We don’t see clear, bright-line guidance here,” said Lars Etzkorn, a program director with the National League of Cities. “This is going to be good for employment lawyers.”

The 5-to-4 ruling applies largely to public-sector hiring and to civil service exams, but could also affect private employers that use tests or other screening methods. The court said that if an employer used a hiring or promotion test, it generally had to accept the test’s results — unless the employer had strong evidence the test was flawed and improperly favored a particular group.

With the court’s ruling making it harder for cities and other employers to throw out tests they conclude are unfair, employers are expected to work harder to make sure their written tests — indeed their entire selection process — are fair.

“The ruling gives employers less flexibility to change the selection process once it’s established,” said Katharine Parker, a lawyer with Proskauer Rose who is chairwoman of the Labor and Employment Committee of the New York City Bar Association. “As a result, employers will want to try to establish bulletproof selection criteria.”

Some may abandon written tests altogether.

To avoid charges of discrimination, many cities have already been moving away from such tests in favor of other methods of hiring and promoting employees in places like fire and police departments. They say written tests are often not the best way to determine who can perform best.

In New Haven, city officials, having concluded that their written test was flawed, said there was another, trusted method to select firefighting lieutenants and captains that posed less of a disadvantage to blacks and Hispanics. That method relies largely on assessment centers where applicants are evaluated in simulated real-life situations to see how they would handle them.

Supporters of the idea say assessment centers do far better than written exams in measuring leadership and communications skills and an applicant’s ability to handle emergencies.

Bridgeport, Conn., uses that approach, and its ranks of fire lieutenants and captains are, unlike New Haven’s, largely proportionate to the city’s black and Hispanic populations.

jesus titty fuckin christ, what kind of questions are on these tests?

[dj c-los]

good decision on the supreme court. however, it should have been 9-0.

[djmarbll]

Originally Posted by dj c-los

good decision on the supreme court. however, it should have been 9-0.

Explain.

[El Mayimbe]

Originally Posted by djmarbll

The test isn't racially biased at all. The results of the test had a disparate amount of racial make-up among those who passed, which was a red flag because historically the results were much different, and the city didn't wanna get sued again by African-Americans who could have used Title VII of the Civil Right Act of 1964 as leverage. That red flag (and probably the fear of litigation) caused the city of New Haven to conduct a 5-day hearing with a civil review board of experts arguing for and against the validity of the test. It was found the test had several flaws including some the test-makers themselves alluded to. This is why the test was thrown out two previous times in lower courts.

im still curious & would love to see a sample of these questions

[djmarbll]

Originally Posted by El Mayimbe

im still curious & would love to see a sample of these questions

Well, according to the testimony of some experienced firefighters who saw the test, one question asked whether it was best to approach an emergency from uptown or downtown--terminology with no valid meaning in New Haven given the way in which the community is constructed--and another offered several multiple choice options among its answers, none of which happened to be the correct answer, in line with New Haven policy.

I wish I could see the test as well just to see how it compares to the tests that are used in Bridgeport, or just any tests that was used in the past where the results were more typical.