April 25, 2018
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Firefighters and affirmative action 'Reverse discrimination' case before U.S. Supreme Court aims to weaken civil rights

By: Gloria La Riva

'Reverse discrimination' case before U.S. Supreme Court aims to weaken civil rights

Lawsuits attempt to turn back the clock

The racist “reverse discrimination” suit is the latest in a pattern of lawsuits filed in recent years by white firefighters, who want to turn back the clock to a time when Black people and other communities of color were shut out of firefighting jobs by rampant racism.

The country’s fire departments were historically all white and male, with only a tiny number of Black workers in some cities. The few who were hired suffered extreme racism on the job.

It was not until the 1960s and 1970s, with the rise of the civil rights movement and the determination of Black firefighters and communities across the country, that the apartheid walls of the fire departments were partially dismantled. Court-ordered “consent decrees” in major cities forced the doors open for Black, Latino and other minorities. Women also benefited from affirmative action hiring in the fire departments.

However, the expiration of many consent decrees in recent years has contributed to a drop in the percentage of Black firefighters in the United States by almost half.

Now Ricci v. DeStefano greatly threatens even those gains. Racism and the sense of entitlement that many white firefighters feel about “their” jobs has resulted in multiple lawsuits against diversity hiring practices.
John Roberts, the Supreme Court chief justice, already ruled in a 2007 school case to further restrict the use of racial considerations in school admissions.

The Ricci suit stems from a 2003 exam given to firefighters in the New Haven Fire Department, for those seeking promotion to lieutenant and captain.

Forty-one firefighters took the captain exam, of whom 25 were white, 8 Black, and 8 Latino. Twenty-two who took the test received a 70 percent or higher score, which was required for passing. Of the 22, 16 were white, 3 Black, and 3 Latino. Because seven white firefighters and two Latino firefighters were the top scorers, no Black firefighters would have been able to fill any of the seven captain vacancies.

Seventy-seven firefighters took the lieutenant exam, of whom 43 were white, 19 Black, and 15 Hispanic. Thirty-four scored 70 percent or higher; 25 were white, 6 Black and 3 Latino. But because the 10 highest scorers in the lieutenant test were all white, there would have been no promotions of Black or Latino firefighters to lieutenant.

Due to the disparate impact that validating the test would have had on Black and Latino promotions, the city of New Haven Civil Service Board held five hearings on how to proceed.

In 2004, the CSB voted 2 to 2 not to validate the tests after extensive testimony that recommended alternative methods for promotional selection. There have been no promotions to lieutenant or captain since. Although no one was promoted, the 17 white firefighters in the suit, plus one Latino plaintiff, claim that the city had deliberate intent to discriminate against them.

Frank Ricci has been portrayed in the media as a man who was mistreated by the city because he states that he had worked hard to pass the written exam, including hiring someone for $1,000 to transfer the written test into audio so he could overcome his dyslexia.

But Thompson explains that the written exam has very little to do with the skills needed. “All the firefighters who took the test are qualified, they have been in rank for years, they know the job. But the exam in question didn’t take into account the major factors needed for job … command presence, fairness, honesty.

“Anyone could answer written questions. I could devise a test and you would rank high enough, even if you have never ridden on an engine.” He added, “In Birmingham Alabama, they abandoned written tests in the late 1970s, and in Minnesota they use only a pass/fail test. The plaintiffs are making a representation that the New Haven tests were valid and there is no evidence of that.”

‘Clear and serious flaws’

Experts from the Society for Industrial Organizational Psychology, which devises exams for public service promotions across the country, issued a strongly worded brief against the 2003 exam.

“Clear and serious flaws in the design of the tests and the proposed use of the test scores” meant that there was no basis for validating the test, stated the psychologists. It criticized over-emphasis on the written part of the test, 60 percent, and by doing so, it had an adverse impact on Black and Latino applicants.

Title VII is a key part of the Civil Rights Act of 1964, later amended as the CRA of 1991. It was designed to right the grave injustices of racist Jim Crow segregationist practices that kept many a workplace all white, from South to North. Basically, it requires an employer to remove “artificial, arbitrary, and unnecessary barriers” that historically existed to keep people of color and women from gaining access and equality in the workplace.

It was not meant to back white firefighters’ arguments that they are denied their historic domain in the fire department, but that is exactly what they are trying to claim.

Under Title VII, the consideration of race to achieve and maintain diversity is allowed—and in fact, required. It is enhanced when an employer can prove “compelling state interest,” such as assuring diversity in a workforce for more effectiveness. For public service jobs like firefighter, the more reflective a workforce is of the population, the safer the community is.

Captain Addington Stewart, is director of the south-central region of the International Association of Black Professional Fire Fighters. In 1978 he became a firefighter in St. Louis, Missouri, after the one-for-one hiring policy laid down by a 1975 court consent decree in that city. Today he is captain of the department in the St. Louis international airport, and is spokesperson for the IABPFF with regard to Ricci.

First responders

Speaking to the vital importance of a firefighting crew to be representative of the diverse ethnicities, Stewart said, “We are the first responders in any emergency, not just firefighting, but medical emergencies and natural disasters. For us to relate to and be of trust in the community, when you are from that community, your commitment is stronger.

“If you don’t live in that community, they don’t do any community service, for instance educating the people on fire safety, especially in poor areas. With the Vietnamese who live in St. Louis, we found that many didn’t understand about carbon monoxide. For example, four Vietnamese died in a car in a garage. Firefighters play a vital role in education.

“Also, there is a mistrust between African American people and police and firemen. In some fire stations all the doors are locked, to keep out the kids and community.”

According to attorney Thompson, the plaintiffs in the Ricci suit do not live in New Haven, but live instead in outlying suburbs.

To look at the parties joined in the legal battle is to understand what is at stake: Either diversity and a workforce beneficial to all people, or a return to the “good old boys club.”

The plaintiffs’ supporters include right-wing organizations like the National Association of Police Officers, the CATO Institute, the Individual Rights Foundation and Eagle Forum Education.

Among those against the lawsuit are NAACP Legal Defense and Educational Fund, the National Partnership for Women, New York Law School Racial Justice Project, the Mexican American Legal Defense and Educational Fund and LatinoJustice PRLDEF.

The 2nd Circuit Court of Appeals ruled that the city of New Haven did not deliberately intend to discriminate against white firefighters by aiming for a goal of diversity in the fire department, including in the managerial levels. Whatever the decision of the Supreme Court, the struggle for racial and economic justice is certainly not over.

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