White CT Firefighters prevail

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White CT Firefighters prevail

Post  Eng& on Mon Jun 29, 2009 4:49 pm

Bravo F'in Zulu, about time this case got settled.

http://www.msnbc.msn.com/id/31609275/ns/politics-white_house

Hopefully this will start to interject some damn common sense into todays "modern" Fire Service.

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Re: White CT Firefighters prevail

Post  Guest on Mon Jun 29, 2009 8:21 pm

Full ruling for anyone that wants to read through 93 pages.

http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf

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Re: White CT Firefighters prevail

Post  JoeC (McGruff) on Tue Jun 30, 2009 5:36 pm

This was a tough case I have not had time to research it when I started it raised more questions than it answered . On its face the supreme court made the right choice but as you delve in to it, it is not that simple. The case raises a lot of questions on future cases. It appears the Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007), and Ricci appears to import that into Title VII as well.

The case was tough to decide no matter how you slice it, I don't think the new the supreme court justice nominee should be slapped down on her appellate decision that was overruled either.

Now as far as common sense in civil service test the courts did not address that well. The written examination part of the test asked questions based on the test takers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department. There is no indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of ďassessment centersĒ where test takers play the role that replicates the actual job can be content validated as job samples. Isnít there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity? I don't think so I have taken civil service test in the past some made sense and some did not.

Fire fighter is classic when I left the Navy after 8 years as a fire fighter taken many classes I figured to ace the basic firefighter test for the city of Seattle. That was not to be the case none of the questions posed had to do with: class of fires, the proper firefighting agents, piping systems, hose sizes, proper gear, or anything applicable to firefighting.

I failed that test never thought anything of it at the time, other than the civilian firefighting community takes a different approach to making men fire fighters than the Navy did. It does not surprise me that an advancement exam presented the same hurdles. I am not against testing but I believe the test should be related to the subject matter. If you spend 8 years studying for English you should not have to take a math test to be called a English teacher. If the IOS test was on the subject matter would there have been a differnt outcome?
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Ricci

Post  Eric on Mon Jul 06, 2009 3:13 am

Parents Involved centered on when an affirmative action program is ordered where there was no evidence of long term invidious discrimination, if memory serves me right. We discussed this case in Con Law and came to the conclusion that the Court did not want to remedy something that either was remedied long ago or never occured at all.

The Court in Ricci spent five pages talking about the test, how it was created, and whether or not it was closely related to the work and predictive of success on the job.

I still think that closely related and predictive of success is going to be the test when it comes to an employment test that is facially neutral. ON that count not much has changed.

However, I think the Court is going to continue to narrow the scope of disparate impact in employment discrimination cases. Justice O'Connor said it well when she stated that at some point there will no longer be a need for disparate treatment analysis. I think that is about 100 years off, but thats where reasonable people will differ.

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Experts weighing in on Ricci.

Post  JoeC (McGruff) on Tue Jul 14, 2009 2:20 pm

Heres an excerpt that I came across from Marcia L. McCormick her blog is here : http://works.bepress.com/marcia_mccormick/

There's a lot there, and some of it, I confess, confuses me. There is so much to the opinion, in fact, that I've decided to break up the analysis. In this post, I'll analyze the majority's opinion alone, and try to tease out what it means for the parties and for employees and employers more generally. In future posts, I'll tackle Scalia's concurrence, suggesting that disparate impact legislation is unconstitutional. And in a third post, I'll tackle the Alito concurrence and Ginsburg dissent, although I may separate those out into separate posts.
The majority's legal analysis starts from this premise: The City chose not to certify the examination results because of the statistical disparity based on race, and that this was express race based decisionmaking which Title VII prohibits. Considering the race-based effects of the testing and rejecting the test on that ground was taking an adverse action because of an individual's race.
The second step in the analysis, which attempts to harmonize the conflict this premise sets up, is that good faith fear of a disparate impact lawsuit cannot be enough to justify acting because of an individual's race. That would allow employers to maintain some sort of racial quota or balance because it's too easy to claim and to difficult to disprove good faith belief.
In the third step, the majority looked to the affirmative action cases under the Equal Protection clause for an analogy, reasoning that affirmative action created the same kind of conflict in Equal Protection doctrine that this collision of disparate impact and disparate treatment created. Under the Equal Protection cases, a government employer can engage in race-based decisions where there is a strong basis in evidence that it is warranted to remedy past discrimination by that government employer.
So, the end result is a compromise: Once a hiring or promotional process has begun, an employer may not deviate from that process over concerns that the process discriminates unless there is a strong basis in evidence to believe that the practice would not survive a disparate impact lawsuit. Employers can act before there is a "provable, actual violation," but only if there is this strong basis in evidence to believe that there is a provable violation.
Importantly, there is no restriction on what employers can do to try to design a process for making employment decisions that are fair for all regardless of race before any process is put into effect. "But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race."
Applying the standard, the majority found that the City did not have a strong basis in evidence to believe that the test created an illegal disparate impact. The Court agreed that the results demonstrated a severe statistical disparate impact, which warranted the hearings the City held, but disagreed that there was any evidence: 1. that the test was not job related and consistent with a business necessity or 2. that there were other methods the city could have used that would have been just as legitimate without the disparate effect.
As a doctrinal matter, I think that the initial premise is troubling. To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs. It's also an implicit rejection of the basis for the Court's early decisions on Title VII, that discrimination in employment was common, that absent some other good explanation for an adverse action, discrimination was a reasonable explanation for it, and that without incentives, employers would not have to look critically at what was really required to perform a job and whether this individual could do that. Instead, they could rely on old proxies for fitness without examining them critically. Now it seems that the Court is concluding that discrimination is rare and assertions of discrimination are suspect, and that the continued lack of attainment by people of color (and women, likely) is because of limitations in those people, not obstacles in the system.
The result is also going to make it difficult for employers to navigate Title VII, although maybe not more than it was before this decision. Employers will likely do nothing to evaluate their hiring or promotional processes until those processes have run their courses. There is very little incentive for employers to try avoid disparate impact liability any more than they would have before this decision, and more incentive not to change anything, just in case that change is itself discrimination.
The majority insisted that this decision did not affect a decision by an employer to make changes to its hiring and promotional processes before beginning those processes, but if a desire to avoid discrimination is a discriminatory motive, then wouldn't creating a process designed to avoid racial effects also be intentional discrimination? That process is designed and implemented because of the races of applicants. Maybe the difference is that it doesn't consider any particular individual's race because there are no individual applicants until the process is begun.
The last piece of the opinion that I am continuing to puzzle over is the second to last paragraph, where the Court makes this cryptic (to me) statement, providing the City with a defense to the disparate impact lawsuit it was afraid of:
If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
I'm not sure what to make of that statement, frankly. The City will be in a very different position defending a disparate impact lawsuit. For one thing, the job-relatedness and alternative process issues will be subject to a full evidentiary battle, and so as a factual matter the plaintiffs might succeed. Secondly, in some ways, disparate impact is harder to defend against because motive is irrelevant. The questions will simply boil down to whether there are equally valid less discriminatory alternatives. I don't understand how the City's inability to throw out the test will be a defense. And if it is, then when will there ever be disparate impact liability? There's no adverse action until the process has run its course (or at least begun). I understand that the African American firefighters are thinking seriously of filing their lawsuit now, so maybe this will wind its way back up and we can get an answer.
One thing is likely, this case is not over (unless there's some sort of miraculous settlement), and it won't be over for a long time.

Marcia L. McCormick
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St. Louis Univ. School of Law
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Uh-Oh another one.

Post  JoeC (McGruff) on Thu Jul 23, 2009 12:11 pm

A S.D.N.Y. judge has just held that the New York City Fire Department had been using hiring tests that had a disparate impact on black and Hispanic applicants As part of the holding, the judge found that the tests had little relation to the job of firefighting. Although not directly related to the tests, a general statistic illustrates the problems in hiring minorities for the F.D.N.Y., which had about 3% black firefighters and 6% Hispanic fiefighters, despite each group consisting of approximately 27% of the city population.

http://www.nytimes.com/2009/07/23/nyregion/23firefighters.html?_r=1&hp
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Re: White CT Firefighters prevail

Post  Guest on Thu Jul 23, 2009 1:08 pm

Hiring tests and promotion tests are 2 totally different animals.

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Hiring and promotion test

Post  Eric on Thu Jul 23, 2009 6:22 pm

Eng&SafetyMgr wrote:Hiring tests and promotion tests are 2 totally different animals.

Hold yer horses. Both tests must be professionally created and a reasonable predictor of future job performance in order to be valid and non discriminatory in nature when having a disproportionate adverse impact on a protected class.

The two types of tests are different and have different criteria applied to them in the statistical analysis when determining the applicant pool versus the acceptance pool, but they both have to satisfy the same standards in order to be held valid if they have a disparate impact on members of a protected class.

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Re: White CT Firefighters prevail

Post  Guest on Thu Jul 23, 2009 6:34 pm

I have as of yet not heard anyone that can explain to me in simple languauge how a test favors one race over another. Being a Firefighter I have experience in this field. I've taken these tests, numerous times and I can't wrap my little tiny brain around how I'm doing better because I'm white.

So what your saying is that any test that does not yield the results you expected to be in line with the local demographics is inherently flawed? Mind blowing.

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Your lookng at it backwards

Post  Eric on Thu Jul 23, 2009 10:50 pm

I have as of yet not heard anyone that can explain to me in simple languauge how a test favors one race over another. Being a Firefighter I have experience in this field. I've taken these tests, numerous times and I can't wrap my little tiny brain around how I'm doing better because I'm white.
Your analysis is backwards. Its not that one test favors one racial group over the other. The test. per se, is neutral on its face. It does not favor one group over the other.

The issue is the impact of the test. Most tests favor economically advantaged individuals over those that are note/were not economically advantaged as they were growing up. Itís not the racial makeup of the individual that studies have identified when they see that individuals do worse on standardized tests. Itís what economic conditions they grew up in.

Finally, the real standard that is used to judge whether an employment test is legitimate after being subject to scrutiny is if the test is "substantially job related and a reliable predictor of future success on the job"

If a test has a statistically adverse impact on a racial, sex, national origin group then the next step is to determine if the test was professionally prepared. The next factor is whether the test is a good predictor of success on the job and the overarching factor in all of this is "was there long term invidious racial, sexual, or national origin discrimination at that particular employer.

Does that all make sense to you now, cause thatís how the courts look at these things.

Eric


Last edited by JoeC (McGruff) on Thu Jul 23, 2009 11:22 pm; edited 1 time in total (Reason for editing : Wrap quote)
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Re: White CT Firefighters prevail

Post  JoeC (McGruff) on Sun Jul 26, 2009 1:12 pm

Any one that is interested in further reading SSRN has a down loadable 67 page research paper by Joseph L. Gastwirth & Weiwen Miao, Titled Formal Statistical Analysis of the Data in Disparate Impact Cases Provides Sounder Inferences than the Governmentís 'Four-Fifths' Rule: Examining the Statistical Evidence in Ricci v. Destephano .
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1381293

The first page is abstracted you can download the rest to PDF.
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Re: White CT Firefighters prevail

Post  Guest on Mon Aug 10, 2009 5:28 pm

Just got back from vacation, discussion to be continued shortly.

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Re: White CT Firefighters prevail

Post  Guest on Thu Aug 20, 2009 2:47 pm

I'm not going to address hiring tests at this time as the original post was about the promotion tests that New Haven threw out because they didn't like the results and were "afraid" of being sued over.

Your analysis is backwards. Its not that one test favors one racial group over the other. The test. per se, is neutral on its face. It does not favor one group over the other.

Yet now the courts want to make that same test, that is "neutral", the mechanism to alter results until they get the "diversity" they so desire. How exactly is that supposed to work? If a certain group of people or as you put it
Itís what economic conditions they grew up in.
are being "disparately impacted" by this test the only logical solution other than outright awarding of extra points for being a minority, or just plain dumb or whatever is to basically "dumb down" the test.

What does that actually accomplish? How do you make a test easier for one "minority" group and not expect those that did fine on the original test to do even better on the new one. All you have accomplished is moving the pass/fail line down the delta some.

In my opinion all this " oh I was so poor and had to go to a shitty public school" nonsense stops on day 1 of the Academy. All recruits regardless of backround receive the exact same training. It literally starts as basic as " this is a fire, it is bad", "we put water on the fire", "this is a Fire Engine, it pumps said water through hoses to the bad fire", really basic stuff.

From that day on everyone works the same City, sees the same jobs, studies the same material, etc. Seems like a level playing field to me. But then again I'm white, went to decent schools and take tests well so I just don't "get" this liberal agenda of happiness and harmony and how we're all equal and everyone has to acheive the same things even though some bust their ass to learn their trade then others just skate by and expect everything handed to them because they had a really tough childhood.

But whatever, our courts have been making some asinine decisions for the last 200 some years so I really shouldn't expect common sense to come into play anytime soon.

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I surrender

Post  Eric on Mon Aug 24, 2009 3:54 am

Dude, you don't get it.

As long as the test is a sufficient predictor of success on the job it doesn't matter if no minorites are hired or promoted, the test will be valid.

Sometimes I don't know why I try.

Forget I ever replied.

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Is it really finally over or has it just begun

Post  Guest on Thu Dec 03, 2009 6:47 pm


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Re: White CT Firefighters prevail

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