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Jun 30 2009

Judge Sotomayor's Firefighters

Yesterday the United States Supreme Court handed down its decision in Ricci v. DeStefano which overruled President Obama's recent Supreme Court nominee, Sonia Sotomayor. Not since Kelo v. City of New London has the outcome of a case been so obvious. However, this time the Supreme Court got it right. Activist Judge Sotomayer, however, relying on her status as a "wise Latina woman with the richness of her experiences," got it wrong.

Disparate Treatment and Disparate Impact

Everyone knows employers cannot discriminate on the basis of race, color, religion, sex or national origin. This is called "disparate treatment" and is a violation of the law, specifically Title VII of the Civil Rights Act of 1964. There is another, less understood, form of discrimination that is potentially just as illegal, "disparate impact." An employment practice, neutral on its face, has a disparate impact when it adversely affects one protected group more than another. A classic example is the requirement of a high school diploma for a manual labor position in which a diploma isn't really necessary. Statistically, fewer minorities have high school diplomas and will, therefore, be excluded at a greater rate by the unnecessary requirement of a diploma. This results in a "disparate impact" on minorities which, combined with the unnecessary nature of the requirement of having a high school diploma, is illegal. However, note that if the position was for an entry level clerk which utilized skills one ordinarily learns in high school, the requirement of a high school diploma would be lawful despite the disparate impact it might have on minorities.

More specifically, the legal analysis of disparate impact is as follows:

"Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin. An employer may defend against liability by demonstrating that the practice is job related for the position in question and consistent with business necessity. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs."

Ricci v. DeStefano, 129 S.Ct. 2658, 2673 (U.S. 2009).

New Haven Fire Department

In 2003, the City of New Haven, Connecticut, needed to fill vacant lieutenant and captain positions in its fire department. In the olden days, a racially discriminatory city might test applicants for the firefighter position on yachting, ice hockey and fondue etiquette in the hopes that only whites would score well and, thus, "earn" a promotion. Now days, painstaking care is taken by specialized outside contractors experienced in creating test which relate solely to job requirements and which do not favor one race or group over another.


The Test Construction

The Charter for the City of New Haven requires the hiring and promotion process to be based on merit. This is a logical requirement if one wants, by definition, the best people to fill a position. To fulfill this requirement, the City hired Industrial/Organizational Solutions, Inc. ("IOS"), to develop and administer the firefighter examinations. Pursuant to the City's contract with the firefighter's union, the promotional tests were to be based 60% on a written exam and 40% on an oral exam.

"IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results-which IOS would use to develop the examinations-would not unintentionally favor white candidates."

Id., at 2665.

The oral examination portion was likewise constructed by IOS based on job skills and abilities:

"IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors."

Id., at 2666.

There were nine three-member assessment panels each having one white, one black and one Hispanic member. Accordingly, the oral examinations were judged by one white and two minority panelists consisting of "battalion chiefs, assistant chiefs, and chiefs from departments of similar sizes to New Haven's throughout the country."

Test Results

118 New Haven firefighters took the exams to qualify for promotion to the rank of lieutenant or captain.



Because there were 8 lieutenant positions open, the top 10 candidates were eligible for promotion. All 10 eligible candidates were white. Subsequently, 3 more lieutenant vacancies opened up making the next 3 highest scorers eligible, all of whom were black. There were 7 captain positions open for which the 9 highest scoring eligible candidates consisted of 7 whites and 2 Hispanics.

Not surprisingly, people who only focus on equality of outcomes and not equality of opportunity had a problem with the test results and a controversy arose over whether to certify the test results. Without knowing whether they had passed or failed some firefighter candidates spoke up in favor of certifying the exam results. One candidate proclaimed:

"every one of the questions on the written examination came from the study material. If you read the materials and you studied the material, you would have done well on the test."

Id., at 2667.

Another candidate, Frank Ricci, who would become the lead plaintiff in the fight to certify the test results stated:

"he had several learning disabilities, including dyslexia; that he had spent more than $1,000 to purchase the materials and pay his neighbor to read them on tape so he could give it his best shot; and that he had studied 8 to 13 hours a day to prepare for the test. 'I don't even know if I made it," Ricci [testified], 'but the people who passed should be promoted. When your life's on the line, second best may not be good enough.'"


A lesson for everyone who is "disadvantaged" can be found in the wisdom of Frank Ricci. If you have a hurdle or obstacle to overcome, the answer is not to seek special dispensation but, rather, to simply work harder than everyone else. Is it fair, probably not, but it's the American way. Bust your ass and you'll be rewarded. I've seen so many people in my life come to this country unable to speak the language and with no appreciable skill other than the willingness to do long hard work. They open up a small shop, work 16 hour days, sleep on a cot in the back and their children become doctors and engineers--one generation and they are at the top to the social-economic ladder. Is it fair that they had to work so hard? I don't know. But, the results are undeniable.

The criticisms of firefighters who spoke out against the exams is incredibly telling:

"And they criticized the test materials, a full set of which cost about $500, for being too expensive and too long."


For this to have been noted by the court, somebody had to decide it wasn't worth it to purchase the study materials. It was a cultural--not a racial--bias which caused someone to weigh the $500 versus potential career advancement and decided the materials were too costly. There's no question this represented a lot of money to many but compare that to the tens and hundreds of thousands of dollars people routinely spend on their educations. Call me insensitive, but $500 seems like a bargain. The most amazing criticism, though, is that the materials were too long. Now there's an individual who simply wants everything in life to be handed to him or her.

One witness for the City in favor of throwing out the test results was a black professor from Boston College, Dr. Janet E. Helms, whose "primary area of expertise" is in "race and culture as they influence performance on tests and other assessment procedures." While Dr. Helms expressed several potential criticisms of the examinations, she "expressly declined the City's offer to review the examinations." No doubt because she wouldn't be able to actually point to anything discriminatory. Dr. Helms testified:

"regardless of what kind of written test we give in this country...we can just about predict how many people will pass who are members of under-represented groups. And your data are not that inconsistent with what predictions would say were the case."

"no matter what test the City had administered, it would have revealed a disparity between blacks and whites, Hispanics and whites, particularly on a written test."

Id., at 2669.

Besides validating the testing results as basically being just what you would expect, imagine the uproar and condemnation if a white person made the same statement: it doesn't matter how the test is structured, whites will always out perform blacks, especially on written tests.

The Litigation

Based solely on the test results, in other words, the color of the skin of the passing candidates, the City of New Haven refused to certify test results. The minority candidates who didn't pass threatened to sue if the tests were certified based on the disparate impact theory. While the primarily white candidates who did pass threatened to sue if the tests were not certified based on actual disparate treatment.

The City refused to certify the test results and 17 white firefighters and 1 Hispanic firefighter brought suit. Frank Ricci was the lead plaintiff and John DeStafano, Jr. (Democrat), the Mayor of New Haven, was the lead defendant.

Court Rulings

The United States District Court for the District of Connecticut, Judge Janet Bond Arterton, a President Clinton appointee, ruled in favor of the City, apparently finding nothing wrong with the City intentionally, knowingly, purposefully, discriminating against the white firefighters. Essentially, the trial court found out-right disparate treatment against whites to somehow be less offensive than mere good-faith fear of disparate-impact against minorities. If this doesn't make sense to you, that's OK, it didn't makes sense to the United States Supreme Court either.


On appeal to the Second Circuit Court of Appeals, a three judge panel unanimously upheld the District Court. The Second Circuit panel consisted of: Judge Rosemary S. Pooler, appointed to the District and Circuit Courts by President Clinton, Judge Robert D. Sack, appointed directly to the Circuit Court by President Clinton and Judge Sonia Sotomayor, appointed to District Court by President George H. W. Bush and to the Circuit Court by President Clinton.

Finally, on appeal to the United States Supreme Court, the decision was reversed. The Supreme Court held:

"Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a focus on statistics could put undue pressure on employers to adopt inappropriate prophylactic measures. Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer's preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. The purpose of Title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color."

Id., at 2675.

In noting the legal prohibition against simply giving extra points on an exam to certain races, the Supreme Court explained:

"If an employer cannot rescore a test based on the candidates' race, then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates-absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision."

Id., at 2676.

Accordingly, the Supreme Court adopted the requirement that there be a "strong basis in evidence of an impermissible disparate impact" before allowing disparate treatment in violation of Title VII. In other words, the City will not be allowed to discriminate against the white firefighters by throwing out their test results (because they were all white) without a strong evidentiary showing either that the examinations were not job-related and consistent with business necessity or that a less discriminatory but equally valid testing alternative existed. The City failed to meet this "strong" burden.


As gross generalizations go, liberals who are successful are arrogant and think they reached the position they did because they are special and no common person could ever achieve what they did. Did someone simply hand out the Presidency to Barack Obama, a position on the Supreme Court to Justice Sonia Sotomayor or a doctorate degree and professorship to Dr. Janet E. Helms? Or, did they work countless hours studying, sacrificing and toiling away to be the best they could be in their chosen career paths? I tend to think the latter. But, once they reach the pinnacle of their professions, these liberals don't look down and say, "Do what I did, bust your butt studying, working and sacrificing and you will likely achieve success in the freest and greatest country in the world." Instead, liberals say, "America is evil. You can't do it. You need help." The solution often involves moving the starting line up or the finishing line back and always involves giving liberals more power to alter and manipulate outcomes to their desired preferences.

Conservatives are just the opposite. We say there is nothing special about us and that anyone can achieve success. We want to focus solely on the equality of opportunity and ignore the color of the outcome. Is the NBA mostly black, the symphony mostly Asian and the firefighters mostly white? Who cares, as long as the best people are playing ball, making the music and fighting the fires. Take a lesson from New Haven firefighter Frank Ricci, study, sacrifice and work harder than the guy next to you and you will overcome adversity and achieve success.

Posted by Don |

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