Discrimination and Affirmative Action "Firefighting is a skilled job where all of the skills learned are on the job… It's a really good job, and it's been racially exclusive in most of our major cities…" (John Payton, NAACP) (Liptak, 2009, The New York Times)

Workplace issues that revolve around racial fairness and racial justice typically are highly charged with passion and contentiousness. The now notorious case of the Caucasian firefighters in New Haven, Connecticut -- who sued when they believed they were discriminated against -- is a classic case in point. This paper examines and critiques the many issues surrounding the case the firefighters brought to the U.S. Supreme Court.

The basic background of the case

The city of New Haven, Connecticut made a management decision to base future promotions of its firefighting units on a written test. This was 2003. According to Emily Bazelon (writing in Slate) the city apparently didn't feel confident enough in its own legal staff to create the written test, so it "paid an outside consultant to design the test so that it would be job-related" (Bazelon, 2009, p. 1). The firefighters "studied for months" in preparation for the test. The promotions that were available were appealing to all the firefighters in the city's force. Being a firefighter is risky work, and the possibility of being promoted to a higher level -- including the compensation benefits that go along with a promotion -- created a stir of competition and excitement among the firefighters.

Because of the retirement of several senior firefighters there were seven openings for captain and eight opening for lieutenant -- and the decisions to be made by the city would be based mainly on the written test. Forty-one applicants took the test for the seven captain positions and of those eight were African-American; seventy-seven applicants took the exam for lieutenant and of those 19 were African-American.

When the dust had settled and all the tests had been scored by the city, "None of the African-American candidates scored high enough to be promoted," Bazelon explains. The syllabus issued by the Supreme Court points out that the firefighters who sued New Haven did so by alleging "…that discarding the test results discriminated against them based on their race in violation of… Title VII of the Civil Rights Act of 1964" (U.S. Supreme Court, 2008). The defendants (New Haven) alleged that had they "certified" the results of the written test, they could have faced "Title VII liability for adopting a practice having a disparate impact on minority firefighters," the High Court reported.

What portion of Title VII applies here? The High Court explains:

"Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex and national origin, 42 U.S.C. 2000e-2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities…" (Ricci v. DeStefano, p. 1).

Meanwhile, the first thing that comes to a journalist's mind in a case like this is that the test may have been (unintentionally) discriminatory against the African-American firefighters -- and a lawsuit from the minority candidates would potentially be forthcoming. How could it be that no black firefighters passed the test?

Was it skewed against minorities or did it have the appearance of being deliberately favorable to Caucasians? And in the first place, why would New Haven's management team seek to promote firefighters "based on a written test rather than their performance in the field?" Bazelon wonders. And why use "multiple-choice questions" and in the process eschew "evaluations of leadership and execution?" The writer asks, correctly putting her finger on one of the salient issue. "It's like granting a driver's license based solely on the written test," Bazelon continues, "only with much higher stakes."

Did the city of New Haven act reasonably in rejecting the test results?

The simple answer is yes, they acted reasonably. Notwithstanding the furor and passion surrounding their decision, they had little choice. The questions presented in the previous paragraph were clearly on the minds of the management professionals in the city of New Haven. Certainly their later actions were based at least in part in fear of a lawsuit against them. Hence, they tossed the test out and in effect wiped out any chances the 118 candidates for the fifteen available position had of being promoted. Keeping in mind that the city of New Haven, according to Bazelon, is "nearly 40% African-American," it appears certain that the city decided to face the music that would certainly come from the...

The management decisions that led to the anger in New Haven stirred passions both ways: If the test had been allowed to go through, African-Americans might have sued under Title VII; as it was, the Caucasians (and Hispanics) sued because they believed they were harmed by "reverse discrimination." In other words, they were discriminated against because the city didn't want to seem to be discriminatory against the minorities.
In hindsight, it would be easy to make the case that the New Haven bureaucrats did what they needed to do and took the heat they knew would be forthcoming. They were in a no-win situation. But they got into that conundrum by their own doing, that is, hiring an outside consultant to come in and devise a written test for firefighter promotional purposes was not a terribly wise decision. Would an outside consultant be fully aware of the ethnic and racial dynamics in New Haven? Probably not.

In a news release the American Civil Liberties Union (ACLU) asserted that the High Court ruled in favor of the plaintiffs because "…there was not sufficient evidence that the exam's impact on minorities violated the Civil Rights Act of 1964" (ACLU, 2009). The ACLU pointed to the positive result that came from the decision; "…the Court was clear today that employers need to scrutinize their hiring procedures before administering them to ensure they are fair and non-discriminatory" (ACLU, p. 1).

"Reverse discrimination" -- why did Caucasian firefighters employ the phrase?

In a scholarly peer-reviewed piece in the Journal of Business Ethics, Prue Burns and Jan Schapper first touch on affirmative action, and they also explain that because of the intensity of anti-affirmative action opposition over the past few years, business and public management professionals prefer not to use "affirmative action." Instead, management (including HR people) in many instances have replaced affirmative action with the more comfortable and less contentious phrase, "diversity management" (Burns, et al., 2008, p. 371). Indeed, the tone of the recent literature on affirmative action "predominately offers analysis of its demise from an ideological / political perspective," Burns continues.

While asserting that the views of supporters and detractors of affirmative action "appear to be irreconcilable," the authors point fingers at "conservatives" whose "public discourse" on the topic of affirmative action has "succeeded in equating the term with the most extreme form in order that it may be stigmatized" (Burns, p. 372). Meanwhile, the phrase most commonly used "in the stead of affirmative action," Burns explains:

"…is 'reverse discrimination'… [which is] a pejorative term that allows detractors to repeatedly bring to the fore their main claim -- that affirmative action is a form of discrimination that can be equated to the injustices that occasioned the 'supposed' need for it -- while maintaining an appearance of balanced reason" (Burns, p. 372).

And so it was logical and fully expected for the New Haven Caucasian (and some Hispanic) firefighters to make a claim of reverse discrimination. In other words, in order to protect the African-American firefighters from being discriminated against, the city discriminated against the Caucasian firefighters. Somebody had to lose -- but in this case it was those who, ironically, had passed the test.

The Civil Service Board in New Haven reported that the scores for African-Americans "ranged from 34 to 59% of the scores for whites," according to Nina Totenberg with National Public Radio. There were five days of hearings following the results of the test, and after those five days the board decided "the exam was flawed," Totenberg continues. Totenberg quoted the lawyer for the Civil Service Board, Victor Bolden: "The measured thing to do was to decide not to promote based on that exam."

An editorial in The Wall Street Journal extols the idea that "New Haven can't be faulted for aiming to make its fire department more diverse… [given that] we all have a stake in encouraging minorities to participate in the modern workplace and rise to leadership positions" (WSJ, 2009). The Journal is right on that point, but the next sentence dips into some murky water when it claims that the process of testing was "a well understood process open to all candidates" (p. 2). Certainly it was open to "all candidates" but "well understood" is a stretch.

Conclusion

By hiring an outside consultant -- and not using its own legal talent to…