When the city of New Haven discovered that no black entrants qualified for an immediate promotion based upon test scores, they decided to nullify the test to avoid a discrimination lawsuit from black firefighters. New Haven officials stated they tossed the exams based upon “Disparate Impact,” a legal term grounded in the Civil Rights Act of 1964. Disparate impact occurs when an employer’s hiring practice has an adverse exclusionary effect on a protected class. For instance, if an employer uses a lifting requirement of 100 pounds as a hiring practice; and as a consequence, men were hired at a ratio of 10:1 over women, then that hiring practice has had a disparate impact on women as a protected class.
The Amicus brief of the International Association of Hispanic Firefighters provided several different arguments in an attempt to justify the decision New Haven officials. In this piece, I will examine the first argument made by the IAHF. The rest I will examine at a later time.
“Reversing the second circuit’s judgment that a decision to avoid potential discrimination is not itself discrimination. To reverse it will exacerbate racial tensions in public safety departments in Connecticut and in other workplaces throughout the county."The International Association of Hispanic Firefighters makes three false presuppositions that reversing Judge Sotomayor’s judgment to uphold the decision of New Haven will exacerbate racial tensions in other firehouses in Connecticut and across the nation.
It’s true that reversing Sotomayor’s ruling will lead to increased racial strife, but the IAHF neglects the evident fact that not overturning Sotomayor’s judgment will make racial tensions far worse than leaving it alone. (Like Justice Souter said of Ricci v. DeStefano, it left New Haven in a “damned if you do and damned if you don’t” situation.) And dismissing the achievements of those who prepared and worked diligently is far worse for racial relations for fire departments than it is to deny promotions to those who didn't deserve them in the first place.
The International Association of Hispanic Firefighters also made a false assumption that reversing Sotomayor’s ruling will exacerbate racial tensions across the country. The members of most fire departments don’t know anything about the Ricci v. DeStefano. (A good sample taken at my own fire department from those who are politically knowledgeable made this point quite evident to me.) However, ask firefighters how they would feel if their own promotional exam was tossed because no black entrants had scored high enough to qualify for a promotion, they would be livid. I can only imagine how tense it must be at the New Haven Fire Department even 5 years after the fact. As it stands now, you have Lieutenants at the New Haven Fire Department that should be Captains. And thanks to ruling of Sotomayor and other judges, some of those entrants who failed their promotional exams are not Captains.
And finally, the International Association of Hispanic Firefighters made a false assumption that upholding a policy that attempts to avoid discrimination cannot itself be discrimination. Their Amicus brief doesn’t attempt to elaborate on how this is the case, but it does assert something pertinent for our consideration. The Amicus brief says:
This case has been framed in the media as if race in the workplace represents a zero-sum game, as if every promotion given to a person of color is an injury to a white person. This framing presumes uncritically a number of things: that white people are somehow entitled to promotions, that people of color are not, and in this particular case, that performance on standardized tests alone is a n appropriate measure of merit.The problem with Ricci v. DeStefano is that this situation is a zero-sum game, hence Judge Souter’s statement that New Haven is “damned if you do, and damned if you don’t.” The fact that the International Association of Hispanic Firefighters cannot see this is point is rather ironic. They presume to lecture the media about making uncritical presumptions, and this is exactly what they have done in their Amicus brief.