Thread: White Firefighters Win Supreme Court Appeal

1) I don't think this will have much effect outside of this case on Affirmative Action, but there will be a tsunami of angry white men trying to sue over alleged reverse discrimination. 99.9% of these cases will be without merit, though.

2) I think this hoses Sotomayer's nomination.

For the record, I am not against Affirmative Action, as long as it is within reason.

Originally Posted by joesixpack

1) I don't think this will have much effect outside of this case on Affirmative Action, but there will be a tsunami of angry white men trying to sue over alleged reverse discrimination. 99.9% of these cases will be without merit, though.

2) I think this hoses Sotomayer's nomination.

For the record, I am not against Affirmative Action, as long as it is within reason.

Ricci isn't an affirmative action case. Title VII not only forbids intentional discrimination, but also discrimination by means of a "disparate impact." That exists when facially neutral criteria have the effect, even of not the intent, if screening out minorities. The employer would then be required to show that the criteria used were (1) job-related and (2) consistent with business necessity. Even then, the person challenging the criteria may prevail if he or she proves that there are equally suitable alternatives that would not have the same screening out effect.

In this case, there was no dispute that there was a disparate impact on racial minorities. E.g., better than 50% of the whites who took the Lt. test passed; blacks passed at rate of 20%. Blacks made up 19% of the applicants, but only 8% of the passing applicants.

The City, evidently fearing a disparate impact lawsuit by disappointed minority candidates, tossed out the test results and announced it would create a new test. The newly-disappointed white candidates claimed that the do-over itself was intentional discrimination.

So the legal question presented was: May an employer, seeking in good faith to avoid liability under the disparate impact arm of Title VII, nonetheless incur liability under the disparate treatment arm of Title VII, and if so, under what circumstances?

The majority opinion held that a bona fide effort to avoid a disparate impact lawsuit by minority candidates isn't enough to avoid liability for disparate treatment lawsuit by white candidates. The employer needs to make a "strong showing" " that if it were sued, it would lose the disparate impact lawsuit.

The dissent argued that having a good faith, reasonable belief of potential liability for disparate impact was enough to justify a do-over.

The facts were very detailed, and I'm afraid I've done no real justice to that. Both sides had some strong facts. The white firefighters worked hard and scored highest. (One top white candidate achieved the score despite his own dyslexia) The test Qs were drawn from materials identified to applicants.

On the other hand, some of the test questions (developed by a national consulting firm that did interview many city firefighters) evidently related to practices that arose in other cities, such as New York, but did not reflect New Haven practices. There was some evidence that there was unequal access to resource materials (some stuff was back-ordered) which were expensive ($500 or more).

I am necessarily leaving some of the details out; I spent the whole evening reading the 93 pages' of opinion from the justices. To do it justice, so to speak, you have to read what the judges said. A soundbite or brief news article isn't going to do it for you.

I am also curious who is familiar with the assessment center approach to evaluating firefighters -- rather than using a written test, the fire depts send the candidates to be judged on the basis of live scenarios, group interviews, oral exams, as well as written exams. The written exams are weighted slightly less than the real-time performance. The dissent points out that the disparate impact on minorities tends to drop dramatically when this approach, rather than the written test approach is used.

Anyone familiar with the assessment center approach? I would love to hear more about them. Evidently many municipal depts. use them.

Originally Posted by Basset

Ricci isn't an affirmative action case.

I'm misunderstanding something here then. Why did the City of New Haven scrap the promotion exam if it was not because of an affirmative action policy? Was not this at least tangentially about affirmitave action?

Edit; I think I understand the issue here, and though I still think there is some tangency to affirmative action, it has clearly more to do with the city's fear of lawsuits related to not promoting a minority. I see the difference.

Originally Posted by joesixpack

I'm misunderstanding something here then. Why did the City of New Haven scrap the promotion exam if it was not because of an affirmative action policy? Was not this at least tangentially about affirmitave action?

Edit; I think I understand the issue here, and though I still think there is some tangency to affirmative action, it has clearly more to do with the city's fear of lawsuits related to not promoting a minority. I see the difference.

I think that's close. Another way to put it might be that the City believed the results meant that enforcing the test outcome would violate Title VII So it's not necessarily fear of lawsuits (anyone can sue), but perhaps concern over violating federal law. Or concern over losing a lawsuit under Title VII.

Originally Posted by Basset

There was some evidence that there was unequal access to resource materials (some stuff was back-ordered) which were expensive ($500 or more).

Thank you for your long and detailed posts Mr Basset.

I find this particular sentence troubling.

Perhaps I should sue an employer if the other applicant passes a test due to a college education that I could not afford?
College is expensive, more than $500, and someone from a wealthy family would be more likely to attend, and therefore the deck is stacked against me.
At least according to this logic.

People need to just stop whining. If they don't get promoted because of race then either the manager is a jerk and it should be taken up with upper management or you should find a company that you WOULD like to work for.

In the case of being a firefighter I can imagine this might be tough....not not much less true.

Over here (mostly) all the sueing people do in the states comes off as quite the joke. I'm sure it's not all as redicilous as it looks but come on already.

Sueing is NOT the answer when you're having a problem with your employer.

Originally Posted by LX_Emergency

People need to just stop whining. If they don't get promoted because of race then either the manager is a jerk and it should be taken up with upper management or you should find a company that you WOULD like to work for.

In the case of being a firefighter I can imagine this might be tough....not not much less true.

Over here (mostly) all the sueing people do in the states comes off as quite the joke. I'm sure it's not all as redicilous as it looks but come on already.

Sueing is NOT the answer when you're having a problem with your employer.

For firefighters and police, the union gives criteria for tests(like the number of multiple choice,etc...) and has to give their seal of approval before its used.

Originally Posted by gratewhitehuntr

Thank you for your long and detailed posts Mr Basset.

I find this particular sentence troubling.

Perhaps I should sue an employer if the other applicant passes a test due to a college education that I could not afford?
College is expensive, more than $500, and someone from a wealthy family would be more likely to attend, and therefore the deck is stacked against me.
At least according to this logic.

I told you I couldn't do justice to the facts. Here's a pertinent portion from the dissent that addresses book access. The dissent doesn't treat this as a dispositive factor, but notes that it weakens the claim that everyone had equal access to the study materials:

"At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and “wait a month and a half for some of the books because they were on back-order.” Id., at A858. These disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the over-whelming majority of minority applicants were “first-generation firefighters” without such support networks.See id., at A857–A861, A886–A887"

I'm dropping out of the thread, but will heartily recommend that folks actually read the Court's decision, not just someone's distallation of it, including my feeble attempt.

So they did not have the advantages of the people from a line / network of firefighters.

The same situation will exist with people coming from a line of lawyers, policemen, special forces units, or whatever. Even in martial arts, there are few people with better opportunities than the sons of martial arts grand masters. They get tutoring from the moment they can walk, they learn all the good stuff and they are next in line for the title.

Life is not fair. Look at where you want to get and then figure out a way to get there. In this case, they may or may not have been at a disadvantage for the current exam, but nothing prevented them from getting ready for the next one / starting their own network.

Originally Posted by Bruno

The same situation will exist with people coming from a line of lawyers, policemen, special forces units, or whatever. Even in martial arts, there are few people with better opportunities than the sons of martial arts grand masters. They get tutoring from the moment they can walk, they learn all the good stuff and they are next in line for the title.

I come from a long line of jerks.

Actually, I was going to make the same post as Bruno, but use Irish police families as my example.
Since the Irish were strongly discriminated against at one time, and now for dynasties in law enforcement.

The debate here, as I see it, is egalitarianism.
Equality should mean equality of opportunity, not equality of outcome, and the two cannot exist together.