Affirmative_Action_and_the_New_Haven_Fire_Department

Affirmative Action and the New Haven Fire Department | | The Ricci v. DeStefano case At the New Haven fire department, fifteen positions were made vacant, and thus, needed to be filled; eight lieutenants and seven captains.[i] IO Solutions, Inc (IOS), a firm experienced in test production, was contracted by the City at the cost of $100, 000 to create and administer exams in order to assess which employees could best fulfil the two different positions.[ii] The tests, as determined by the City’s firefighters’ union, would comprise of two sections; one which would be conducted orally and would account for forty percent of the grade, and a second which would be in the form of a multiple-choice written exam and would account for the remaining sixty percent.[iii] The IOS team, led by Chad Legel, in order to assure that the exams were fair, i.e non-discriminatory, and relevant to the firefighters of New Haven, effectuated extensive “job analyses to identify the tasks, knowledge, skills, and abilities essential for the lieutenant and captain positions, using interviews, on-the-job observations, and questionnaires.”[iv] In analysing the two positions, there was an intentional oversampling of minorities to ensure that they were well accounted for, and that there was no unintended bias against them.[v] Subsequently, a list was produced enumerating the reading materials which would be utilized in the creation of the written and oral exams (for both positions), and was relayed to the concerned firefighters to help them prepare for the examination.[vi] While the written tests were intended to inspect the candidates’ theoretical understanding of what the positions entailed, the oral examinations concentrated more heavily on the assessment of the candidates’ incident-command skills and firefighting tactics.[vii] To evaluate the oral examination, a panel of highly ranked fire department officials was assembled.[viii] These chosen officials all occupied positions superior to those of lieutenant and captain, e.g. chiefs, battalion chiefs, and assistant chiefs, to ensure that they were familiar with the positions.[ix] Once again, to ensure that there was no bias against minorities, and to avoid a case of disparate impact, IOS appointed a disproportionate amount of minorities to the judging panel.[x] As a result, although Caucasian firefighters accounted for the majority of the candidates, sixty-six percent of the panel consisted of minorities. With the list of materials to study in hand, the candidates were given a three-month period to prepare for the examinations.[xi] During this time, however, they were also required to acquire the materials which proved to be a difficult task for many, creating, as some expressed, unfair advantageous for those who already owned – or whose relatives already owned – the reading materials.[xii] Many candidates, notably Frank Ricci, devoted countless hours to studying the texts, and sacrificed considerably in order to do well on the examinations.[xiii] After all, a lot was at stake: a chance at a higher-ranking position and, resulting from it, an increase in salary.[xiv] After the examinations for both positions were undertaken and completed (during the months of November and December 2003), there was an evident difference in the candidates’ opinions vis-à-vis the tests. While some applauded the IOS team, and stated that the assigned reading materials corresponded perfectly to what figured on the tests, other candidates, notably Gary Tinney, described the questions as irrelevant to New Haven firefighting.[xv] When the results were finally expedited to the City’s Civil Service Board (CSB), it was shocked to notice an undeniable disproportion between the candidates’ results and their race, and the flagrant difference between the passing rates of white candidates in relation to those of minorities.[xvi] In the case of the lieutenant test, the passing rate among Caucasian firefighters was roughly of fifty-eight percent while that of African-Americans and Hispanics was of roughly thirty-one percent and twenty percent, respectively.[xvii] As for the captain test, Hispanics and African-Americans both received a passing rate of roughly thirty seven percent while the Caucasian passing rate was of sixty four percent. Though only eight lieutenant positions were vacant, the “rule of three[xviii]” upheld by the City maintained that ten candidates be considered. All ten firefighters, however, happened to be Caucasian. As for the seven vacant captain positions, nine candidates would be considered; eight Caucasians, one Hispanic. All in all, no African-Americans were eligible for the job promotions. Evidently, the disparity between the test results and the different races would bring the validity of both examinations into question, and prompt the City’s mayor, as well as several local politicians, to convene and debate the subject. City officials feared that the test results would render them liable to charges of race discrimination under Title VII. Although the contract binding IOS and the City of New Haven stated that following the revealing of the test results, an investigation would ensue to ensure their validity by testing and analyzing them, the City decided that it was unnecessary. Instead, Chad Legel, leader of the IOS project, was invited to meet with City officials in order to “orally defend [the tests’] validity.[xix]” In doing so, Legel asserted that the tests were “race-neutral[xx]” and that the factors which prompted the disparate impact were likely “external.[xxi]” Subsequently, Thomas Ude, the City’s attorney, stated to the CSB that, under federal law, the exam results were sufficient examples of disparate-impact to “serve as a predicate for employer-initiated, voluntary remedies.[xxii]” In this light, the CSB convened on January 22, 2004 to discuss whether the results should be certified or simply discarded. Thomas Ude’s position was clear and obvious: it was imperative that the City discard the test results in order to protect itself from a promised disparate-impact liability. On the other hand, firefighters Ricci and Blatchley[xxiii] expressed their approval of the certification of the test results as, in their opinion, the tests were fair and non-discriminatory toward minorities. Pressing the issue further, the City’s firefighters’ union suggested that a research be undertaken to determine the tests’ validity and race-neutrality. Accordingly, the City of New Haven would assemble three experts which would be expected to study the examination process and opine on whether the test results should be validated or not. These three “witnesses[xxiv]” were Christopher Hornick, a Texas psychologist and head of a firm similar to that of IOS, Vincent Lewis, a retired firefighter and “fire program specialist,[xxv]” and Professor Janet Helms, a woman with experience in race and test results. Hornick commented on the obvious adverse-impact which the test incurred, stating that it may have resulted from the weighting of the tests (60/40). Moreover, he questioned the City’s decision not to have the test evaluated and assessed before distributing it to the candidates. Though he criticized the test, and opined that an assessment center[xxvi] may have been a better option, he nonetheless suggested that the City certify the test results. Lewis and Helms also agreed that the test results be certified, claiming that the tests were more than fair, and that disparate-impact is virtually inevitable. However, during the CSB’s vote on the matter, the witnesses’ suggestions were not mirrored. The vote resulted in a two-to-two tie. As a majority was needed for the certification of the rest results, the vote concurred that the results be discarded, to the dismay of many firefighters – most notably Frank Ricci. As a result of the CSB’s decision to not certify the test results, nineteen New Haven firefighters (eighteen Caucasians and one Hispanic) convened to sue “the City, Mayor DeStefano, …the two CSB members who voted against certification,[xxvii]” and other key opposing figures on charges of racial discrimination. They deemed the City’s decision to discard the test results as unlawful and unconstitutional as it violated Civil Rights Act’s Title VII and conflicted with the Equal Protection Clause of the Fourteenth Amendment of the United States’ Constitution.[xxviii]” The City defended its cause, alleging that had it not discarded the test results it would have faced charges on grounds of racial discrimination by minorities “for adopting a practice with a racially disparate impact.[xxix]” The District Court ruled that by not certifying the test, the City did not breach the clauses brought into question by the petitioners.[xxx] Furthermore, it debunked the petitioners’ claims that no better, alternative tests existed by reiterating Hornick’s suggestion of “assessment centers[xxxi]” as a preferable, less discriminatory means of examination. It also refuted claims made that the non-certification of the results was race-based, stating that in the end no one was promoted, thus no one was discriminated against. Unsatisfied with the District Court’s decision, the petitioners appealed to the United States’ Supreme Court which, ultimately, overthrew the latter’s conclusions. Justice Anthony Kennedy concluded that the evidence all pointed towards “race-based decision making.[xxxii]” Attracting the support of Justice Roberts, Alito, Scalia and Thomas, Kennedy continued that the City of New Haven’s “fear of litigation[xxxiii] was not a valid reason to engage in intentional discrimination. In dissent, Justice Ginsburg sympathised with the petitioners’ situation but declared that, as the District Court alleged, ultimately no candidates were promoted, and there was no discrimination based on race.[xxxiv] Backing Ginsburg’s dissent were Justice Breyer, Scouter, and Stevens.[xxxv] When the votes were tallied, it was determined that the first panel led by Justice Kennedy was the victor by a five-to-four vote. Consequently, it was ruled that New Haven city’s decision was unlawful and constituted intentional racial discrimination which is impermissible. Issues at Stake in the Debate over Affirmative Action and My Opinion The affirmative action debate is one which attracts a lot of attention, as much from supporters as from critics. In the employment sector, for example, defenders often state affirmative action’s assurance of equal distribution of job opportunities as a reason for which it deserves its place in the political realm[xxxvi]. Opponents, however, often refute this claim by stating that, in fact, it has the opposite effect. Instead of assuring equality in the work force, it creates inequalities by favouring visible minorities, and contradicting merit-based practices. Many of the issues which stem from – and relate to – affirmative action are present within the Ricci v. DeStefano case previously summarized. These issues include, foremost, the back-stepping from merit-based systems, the devaluing of personal accomplishments, and the controversies surrounding its racist, and sexist nature. Though racism and sexism, and discrimination may seem like synonymous issues, it is important to underline the differences between the two, as to not have them confused. And, it differentiating them, it is also important to explain that the negative connotations associated to them can be misleading, and thus create misconceptions. To discriminate, quite counter-intuitively, is not necessarily to be racist, or sexist. Discrimination is an invaluable aspect of merit-based practices, and should remain one. The tests administered to the New Haven firefighters were intended to discriminate between those which had the skills necessary for the vacant positions, and those who did not. It was used to select the candidates which could best fill the available positions. Where discrimination became an issue in the Ricci case, was when it was used to justify the discarding of the tests’ results, simply because a desired outcome was not attained, i.e. one where minorities and whites were proportionally represented. This sort of discrimination was impermissible because it contradicted the established merit-based system within the fire department, along with being unconstitutional and unlawful. Thus, the real reason for which the case created such an uproar was because the City of New Haven failed to reward well-deserving, and meriting, citizens with what was rightfully theirs; the eligibility of being promoted to a high-ranking position. The race-based allegations made by the petitioners, in my opinion, were used as none other than a pretext to regain what should have been rewarded to them – it is not solely coincidental that the petitioners were all eligible candidates. Had their race have had a positive impact on the acquiring of the vacant positions, they would have probably never made charges of racial discrimination. The real issue in this case is therefore the City’s deviance from the merit-based systems, not discrimination. As noble as the firefighters’ cause may seem – nineteen hard-working men striving for racial equality in the work force – it is my opinion that the case was conducted with the sole intention of regaining what the City had promised them. What may also be important to clarify is the difference which exists between employees being hired because of their race (or gender) due to government-imposed quotas (as is the case for affirmative action) which must be met by employers, and individuals being hired because their race, cultural background, or sex represents a desirable asset. For instance, there is a difference between an African-American being hired by a film producer because he is required by law to do so, and the same African-American being hired as another African-American’s stunt double in the production of a movie. While the first case is a clear example of affirmative action, the latter is an example of a merit-based system; the candidate met the qualifications for the position, and therefore should be hired. Hiring a plus-weight Caucasian woman would have proven an illogical decision for the film producers. Though the example provided is clearly overly simplistic, it nonetheless illustrates the difference which exists between the two. Also, the example alludes to the fact that although it may occasionally seem that there exists an ‘intersectionality’ between affirmative action and merit-based systems, it is clearly not the case. Back-stepping from merit-based systems, in my opinion, is counter-evolutionary and represents a tremendous step backwards – or at least one in the wrong direction. In the Ricci case, fireman Frank Ricci was denied his promotion although he was at the top of the list of admissible candidates for the positions. Though it is true that he was not personally discriminated against by the City of New Haven on account of his skin colour and ethnicity, the affirmative-action-inspired actions it undertook are what cost him his promotion. The City, fearing allegations of racial inequality voted to discard the results, although Chad Legel’s – head of the IOS administered tests – testimony proved just the opposite. It was proven that the tests were job-related (and not race-related), yet, they were attributed by City officials as the factor which engendered the disparate-impact. The City’s claims – notably those pertaining to the disproportional results – insinuate that the inequalities between the candidates were unnatural. On what basis then were these examinations administered' If no inequalities existed among the New Haven firefighters, of what use were the tests ordered by City Hall' Examinations, as explained earlier, are meant to discriminate between individuals by separating those who ‘have what it takes’ from those who do not. Their function is to consider the inequalities between the individuals, and asses which of these inequalities are advantageous and which are not, in order to determine which candidates would best fill the positions. As for what pertains to the devaluing of personal accomplishments, affirmative action is a major contributor to what could be described as this growing issue among minorities. Though it is true that actions must be undertaken to ensure equality among sexes and races (for instance), it is imperative that they be carried out in such a way that the effects will be long-lasting, and somewhat permanent. To simply impose quotas on education and medical facilities, governmental jobs, or any other jobs for that matter, is not to deal with the reasons for which such inequalities exist. Instead, affirmative action creates short term solutions rather than solutions which will last, and eradicate the inequalities’ source. Affirmative action provides minorities with the means they wish for, without providing them with the tools to maintain it. Furthermore, because the end is not attained by the minorities’ in question, the accomplishment itself is devalued. For example, in the Ricci case, those firefighters who ultimately were promoted to the ranks of captain and lieutenant greatly value their accomplishments. However, had an African-American been promoted to the rank of captain or lieutenant it would have been simply because of the colour of his skin, not because he merited the position. As a result, the hypothetical individual would not feel that same sense of accomplishment, and therefore would not value the promotion because he would be conscious of the fact that he did not earn it. All in all, it is clear that although affirmative action’s intentions may be noble and well-intended, in reality it creates more social injustices than it prevents. In the Ricci v. DeStefano case, the pressures exerted by affirmative action, and the fear of being held liable to charges of racial, or sexual that it creates led the City of New Haven to deprive well-deserving citizens of high-ranking positions which they had rightfully earned. Furthermore, the practice devalues the feeling of accomplishment, and encourages firms to deviate from previous merit-based systems. Rather than ensuring that the wheels of social equality keep turning, affirmative action places a stick in its spokes. ----------------------- [i] Kennedy, Justice. "Opinion." Supreme Court of the United States. http://www.law.cornell.edu/supct/html/07-1428.ZS.html. [ii] Ibid. [iii] Ibid. [iv] Ibid. [v] Ibid. [vi] Ibid. [vii] Ibid. [viii] Ibid. [ix] Ibid. [x] Ibid. [xi] Ibid. [xii] Ibid. [xiii] Ginsburg, Justice. "Dessent." Supreme Court of the United States. http://www.law.cornell.edu/supct/html/07-1428.ZS.html. [xiv] Ibid. [xv] Ibid. [xvi] Ibid. [xvii] Ibid. [xviii] [xix] Lenard, George. "Ricci v. DeStefano, aka The New Haven Firefighters' Case, Part I." The Employment Blawg (2009) http://www.employmentblawg.com/2009/ricci-v-destefano aka-the-new-haven-firefighters%E2%80%99-case-part-ithe-basics-the-facts-and-holdingof-the-ricci-case/ [xx] The Adversity. http://www.adversity.net/newhavenfd/default.htm#01-intro. [xxi] Legel in 93 page document [xxii] Kennedy, Justice. "Opinion." Supreme Court of the United States. http://www.law.cornell.edu/supct/html/07-1428.ZS.html. [xxiii] Ibid. [xxiv] Ibid. [xxv] Ibid [xxvi] Ibid. [xxvii] Ibid. [xxviii] Ibid. [xxix] Lenard, George. "Ricci v. DeStefano, aka The New Haven Firefighters' Case, Part I." The Employment Blawg (2009) http://www.employmentblawg.com/2009/ricci-v-destefano aka-the-new-haven-firefighters%E2%80%99-case-part-ithe-basics-the-facts-and-holding of-the-ricci-case/ [xxx] Ibid. [xxxi] Ginsburg, Justice. "Dessent." Supreme Court of the United States. http://www.law.cornell.edu/supct/html/07-1428.ZS.html. [xxxii] Kennedy, Justice. "Opinion." Supreme Court of the United States. http://www.law.cornell.edu/supct/html/07-1428.ZS.html. [xxxiii] Ibid. [xxxiv] The Huffington Post "Ricci Decision: 5-4 Ruling In Favor of Firefighters (Full Decision ext)." The Huffington Post (2009) http://www.huffingtonpost.com/2009/06/29/ricci decision-5-4-ruling_n_222233.html. [xxxv] Ibid. [xxxvi] Kellough, J. Edward. "Affirmative Action in Government Employment." Annals of the American Academy of Political and Social Science 523, no. 1992 (1984): 117-125.