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Firefighter Reverse Discrimination Case Could Transform Hiring
By JESSE WASHINGTON
AP National Writer
NEW HAVEN, Conn. (AP) -- Inside a burning building, fire doesn't discriminate between Matthew Marcarelli and Gary Tinney. Inside the New Haven Fire Department, however, skin color has put them on opposite sides of a lawsuit that could transform hiring procedures nationwide.
This week, the Supreme Court will consider the reverse discrimination claim of Marcarelli and a group of white firefighters. They all passed a promotion exam, but the city threw out the test because no blacks would have been promoted, saying the exam had a "disparate impact" on minorities likely to violate the 1964 Civil Rights Act.
Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?
Also, beneath the specific details of the firefighters' lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.
Reconciling that reality with efforts to ensure "justice for all" remains a work in progress _ one that will be molded by the Supreme Court.
New Haven's population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city's firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.
The promotion exams were closely focused on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60 percent of the final score. Candidates returned another day to take an oral exam in which they described responses to various scenarios, which counted for 40 percent.
Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam.
He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.
"I just call it 'the network,'" Tinney says.
The white firefighters' attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News' "Hannity" program, Marcarelli said it was "gut wrenching" to learn that he was No. 1 on the test but would not get promoted.
"It's something that shakes what you believe in. Because you believe if you work hard, you're rewarded for that, and that's not necessarily the case," Marcarelli said.
Torre said whites have no special advantage in promotions because of laws requiring use of a race-blind, score-based system. She added that many blacks have relatives on the force, including high-ranking officers.
One hundred and eighteen people took the tests; 56 passed. Nineteen of the top scorers were eligible for promotion to 15 open lieutenant and captain positions. Based on the test results, the city said that no minorities would have been eligible for lieutenant, and two Hispanics would have been eligible for captain. (The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.)
The exams were designed by a professional testing firm that followed federal guidelines for mitigating disparate racial outcomes, the plaintiffs say.
But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.
"I'm sure there are numerous reasons why (blacks didn't do as well), and not because we're not as intelligent," Tinney says. "There's a lot of underlying issues to that ... these folks are saying, 'We studied the hardest, we passed the test, we should be promoted.' But they're not talking about all the other things."
Torre argues that discarding a test because no minorities would have been promoted violates the equal protection clause of the U.S. Constitution and Title VII of the Civil Rights Act, which forbids discrimination because of race.
Call it a legal riddle only the Supreme Court could solve: The white firefighters say Title VII prohibits discrimination against them for being white; New Haven says Title VII prohibits it from using a test that has a disparate impact against blacks.
"All were afforded the same notice, the same study period, the same exam syllabi, etc.," said Torre, who would only answer questions by e-mail. "The rest was up to the individual."
There are long-standing divisions over the concept of hardworking, qualified whites being "victimized" by laws or practices designed to help minorities overcome America's history of racism. What's different today is that the landscape has shifted in many ways, big and small.
The biggest is the election of President Barack Obama, and the support he received from millions of white voters.
"It is not white racism that plays the deciding role in the success of minorities any more," says Edward Blum, a visiting scholar at the American Enterprise Institute who believes that race should not be considered in employment decisions.
"That was the case in the '60s and '70s and maybe even part of the '80s," he says. "But it is no longer the case in the 21st century that because you are black you are being held back from achieving what your parents and your ambitions will allow you to achieve. I think that has been crystallized with the election of President Obama."
Obama's election has been a boon to the movement that developed years ago seeking to reshape civil rights laws designed to remedy discrimination.
Besides the firefighters' lawsuit, the Supreme Court will soon hear a case seeking to overturn a Voting Rights Act requirement that all or parts of 16 states with a history of discrimination must get approval from the Justice Department before changing election procedures. And in 2007, the court struck down voluntary integration plans in two public school districts.
Even though it may result in less opportunities for qualified minorities, "the use of race does greater harm to our social fabric by being there than by being eliminated," Blum says.
Another major shift has been in the balance of the Supreme Court. Conservatives gained a 5-4 majority during the Bush administration, although Justice Anthony Kennedy is seen as a potential swing vote.
In Chief Justice John Roberts' majority opinion in the 2007 school ruling, one line rang loudest: "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
That statement was seen as a harbinger of future rulings that would end the use of race in employment, voting and awarding government contracts. It also rebutted a famous statement by Justice Harry Blackmun in the landmark Bakke affirmative action case: "In order to treat some persons equally, we must treat them differently."
Mary Frances Berry, a history professor at the University of Pennsylvania and former head of the Equal Employment Opportunity Commission during the Clinton administration, said the firefighters' case has broad implications.
"This is about whether we are going to see a sea change in how the judiciary looks at the need for these (protections), and how the popular culture and electoral politics influence their perceptions," Berry said.
The Obama administration has said such laws are needed and it is committed to enforcing them. The Justice Department's brief in the firefighters case supports New Haven's position that the city acted properly in throwing out the tests.
But in what many call a political maneuver designed to avoid taking sides, the Justice Department stopped short of saying the firefighters' case should be dismissed, instead recommending that it be remanded to a lower court to determine if city's decision was a pretext for intentional discrimination.
Polls show varying levels of support for affirmative action programs.
In an AP-Yahoo poll conducted in December 2007 through January 2008, one-quarter of respondents favored affirmative action programs and 37 percent opposed them. Another 36 percent neither favored nor opposed them.
A September 2007 Pew poll, which did not give people the option to say they had no opinion, found that 46 percent of people said they favored affirmative action programs that give special preferences to qualified blacks in hiring and education, while 40 percent opposed such programs.
Last November, Colorado voters became the first in the nation to reject a ban on state affirmative action programs. Similar measures have been approved in Nebraska, California, Michigan and Washington.
Supreme Court observers predict the firefighters' lawsuit will be decided by a 5-4 margin, with Justice Kennedy casting the deciding vote.
His past decisions give hope to both sides.
In the recent Voting Rights Act decision that made it harder for some minority candidates to win election when voting districts are redrawn, Kennedy wrote in the majority opinion that "racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions."
"It would be an irony, however," Kennedy continued, if civil rights laws were used to "entrench racial differences."
Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
AP National Writer
NEW HAVEN, Conn. (AP) -- Inside a burning building, fire doesn't discriminate between Matthew Marcarelli and Gary Tinney. Inside the New Haven Fire Department, however, skin color has put them on opposite sides of a lawsuit that could transform hiring procedures nationwide.
This week, the Supreme Court will consider the reverse discrimination claim of Marcarelli and a group of white firefighters. They all passed a promotion exam, but the city threw out the test because no blacks would have been promoted, saying the exam had a "disparate impact" on minorities likely to violate the 1964 Civil Rights Act.
Besides affecting how race can be considered in filling government and perhaps even private jobs, the dispute also addresses broader questions about racial progress: Do minorities and women still need legal protection from discrimination, or do the monumental civil rights laws that created a more equal nation now cause more harm than good?
Also, beneath the specific details of the firefighters' lawsuit lies an uncomfortable truth: On most standardized tests, regardless of the subject, blacks score lower than whites.
Reconciling that reality with efforts to ensure "justice for all" remains a work in progress _ one that will be molded by the Supreme Court.
New Haven's population is 44 percent white, 36 percent black and 24 percent Hispanic (who can be any race). At the time of the 2003 test, 53 percent of the city's firefighters, 63 percent of lieutenants and 86 percent of captains were white. Blacks were 30 percent of the firefighters, 22 percent of lieutenants and 4 percent of captains.
The promotion exams were closely focused on firefighting methods, knowledge and skills. The first part had 200 multiple-choice questions and counted for 60 percent of the final score. Candidates returned another day to take an oral exam in which they described responses to various scenarios, which counted for 40 percent.
Tinney, a black lieutenant who has been a firefighter for 14 years, was seeking a promotion to captain when he took the exam.
He says both the test and his fire department have hidden biases against minorities: The department is historically white, with the first blacks joining in 1957, and jobs, relationships, knowledge and choice assignments are passed on from friend to friend and generation to generation.
"I just call it 'the network,'" Tinney says.
The white firefighters' attorney, Karen Torre, said they would not be interviewed for this story. In a conversation on Fox News' "Hannity" program, Marcarelli said it was "gut wrenching" to learn that he was No. 1 on the test but would not get promoted.
"It's something that shakes what you believe in. Because you believe if you work hard, you're rewarded for that, and that's not necessarily the case," Marcarelli said.
Torre said whites have no special advantage in promotions because of laws requiring use of a race-blind, score-based system. She added that many blacks have relatives on the force, including high-ranking officers.
One hundred and eighteen people took the tests; 56 passed. Nineteen of the top scorers were eligible for promotion to 15 open lieutenant and captain positions. Based on the test results, the city said that no minorities would have been eligible for lieutenant, and two Hispanics would have been eligible for captain. (The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.)
The exams were designed by a professional testing firm that followed federal guidelines for mitigating disparate racial outcomes, the plaintiffs say.
But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.
"I'm sure there are numerous reasons why (blacks didn't do as well), and not because we're not as intelligent," Tinney says. "There's a lot of underlying issues to that ... these folks are saying, 'We studied the hardest, we passed the test, we should be promoted.' But they're not talking about all the other things."
Torre argues that discarding a test because no minorities would have been promoted violates the equal protection clause of the U.S. Constitution and Title VII of the Civil Rights Act, which forbids discrimination because of race.
Call it a legal riddle only the Supreme Court could solve: The white firefighters say Title VII prohibits discrimination against them for being white; New Haven says Title VII prohibits it from using a test that has a disparate impact against blacks.
"All were afforded the same notice, the same study period, the same exam syllabi, etc.," said Torre, who would only answer questions by e-mail. "The rest was up to the individual."
There are long-standing divisions over the concept of hardworking, qualified whites being "victimized" by laws or practices designed to help minorities overcome America's history of racism. What's different today is that the landscape has shifted in many ways, big and small.
The biggest is the election of President Barack Obama, and the support he received from millions of white voters.
"It is not white racism that plays the deciding role in the success of minorities any more," says Edward Blum, a visiting scholar at the American Enterprise Institute who believes that race should not be considered in employment decisions.
"That was the case in the '60s and '70s and maybe even part of the '80s," he says. "But it is no longer the case in the 21st century that because you are black you are being held back from achieving what your parents and your ambitions will allow you to achieve. I think that has been crystallized with the election of President Obama."
Obama's election has been a boon to the movement that developed years ago seeking to reshape civil rights laws designed to remedy discrimination.
Besides the firefighters' lawsuit, the Supreme Court will soon hear a case seeking to overturn a Voting Rights Act requirement that all or parts of 16 states with a history of discrimination must get approval from the Justice Department before changing election procedures. And in 2007, the court struck down voluntary integration plans in two public school districts.
Even though it may result in less opportunities for qualified minorities, "the use of race does greater harm to our social fabric by being there than by being eliminated," Blum says.
Another major shift has been in the balance of the Supreme Court. Conservatives gained a 5-4 majority during the Bush administration, although Justice Anthony Kennedy is seen as a potential swing vote.
In Chief Justice John Roberts' majority opinion in the 2007 school ruling, one line rang loudest: "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
That statement was seen as a harbinger of future rulings that would end the use of race in employment, voting and awarding government contracts. It also rebutted a famous statement by Justice Harry Blackmun in the landmark Bakke affirmative action case: "In order to treat some persons equally, we must treat them differently."
Mary Frances Berry, a history professor at the University of Pennsylvania and former head of the Equal Employment Opportunity Commission during the Clinton administration, said the firefighters' case has broad implications.
"This is about whether we are going to see a sea change in how the judiciary looks at the need for these (protections), and how the popular culture and electoral politics influence their perceptions," Berry said.
The Obama administration has said such laws are needed and it is committed to enforcing them. The Justice Department's brief in the firefighters case supports New Haven's position that the city acted properly in throwing out the tests.
But in what many call a political maneuver designed to avoid taking sides, the Justice Department stopped short of saying the firefighters' case should be dismissed, instead recommending that it be remanded to a lower court to determine if city's decision was a pretext for intentional discrimination.
Polls show varying levels of support for affirmative action programs.
In an AP-Yahoo poll conducted in December 2007 through January 2008, one-quarter of respondents favored affirmative action programs and 37 percent opposed them. Another 36 percent neither favored nor opposed them.
A September 2007 Pew poll, which did not give people the option to say they had no opinion, found that 46 percent of people said they favored affirmative action programs that give special preferences to qualified blacks in hiring and education, while 40 percent opposed such programs.
Last November, Colorado voters became the first in the nation to reject a ban on state affirmative action programs. Similar measures have been approved in Nebraska, California, Michigan and Washington.
Supreme Court observers predict the firefighters' lawsuit will be decided by a 5-4 margin, with Justice Kennedy casting the deciding vote.
His past decisions give hope to both sides.
In the recent Voting Rights Act decision that made it harder for some minority candidates to win election when voting districts are redrawn, Kennedy wrote in the majority opinion that "racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions."
"It would be an irony, however," Kennedy continued, if civil rights laws were used to "entrench racial differences."
Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Replies to This Discussion
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Permalink Reply by Eric on
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I would like to state first and foremost that my comment here is NOT relating to the race issue, it is simply a question I have about the current ruling.
That being said, my question is regarding the basis of the ruling and how that is the basis of the lawsuit. The following is what I understand to be the basis of the ruling. Please correct me if I'm wrong because I'm a little confused.
But after the results came back, the city says it found evidence that the tests were potentially flawed. Sources of bias included that the written section measured memorization rather than actual skills needed for the jobs; giving too much weight to the written section; and lack of testing for leadership in emergency conditions, according to a brief filed by officers of the Society for Industrial and Organizational Psychology.
Are the officials saying that the souce of bias is because there is more weight on the written section rather than there is on testing for leadership in emergency situation? Are they saying that this point is racially biased or are they saying that the test itself is flawed equally because of this? I guess that is my confusion.
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Permalink Reply by JF Hines on
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As a 25 year New Haven firefighter I have seen race based politics become the norm, not the exception. However, I have also seen 2 blacks appointed Chief of Department in my career, and we currently have 2 black assistant chiefs. One would think that black firefighters would strive to attain the same goals through hard work and education, rather than political machinery. Over the last 10 years, relatives of retired black firefighters appointed under what Lt. Tinney calls "the system" have advanced through the ranks by studying and working as hard as their white and Latino counterparts. Had Tinney followed their lead and studied as well, this would be a moot conversation. The one fact that escapes the whole conversation is this: Lt. Tinney also happens to be the son-in-law of the superintendant of schools in New Haven, so any test results not including the promotion of Tinney were in no way going through. That fact has never been publicly discussed by Tinney.If you know anything about the New Haven public school system, Tinney needing a hand up should come as no surprise to anyone.
The school system has been rewarding mediocrity for years. Race based promotions have been at the core of a failing system that has caused many teachers to leave New haven schools and thrive in other towns.
Also, at the end of the written phase of the examinations, each candidate was asked about their opinion of the fairness of the tests. I would like to see what they thought about the test that day, not after results were announced.
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Permalink Reply by Trey Ford on
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I'm not on a department anywhere yet, but I have been testing a lot. I view all races as the same, and if I get a better score and dont get offered the job I'll be furious. Does anyone have advice on how to avoid that?
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Permalink Reply by Edwin Faubion on
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This is the best job in the world. My advice to you would be to keep appling yourself. As to being passed over for hiring due to color, ask yourself this, if they will pass you for hiring won't they pass you over for promotion?
Keep going, striving toward your goal of getting to be one of the best front line defenders of our great country where we can agree, disagree, and still get along.
As far as avoiding it. Just quit trying, give up and go to the house. Discrimination will always be around. I discriminate eating avacados.
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Permalink Reply by John Rulli Jr. on
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Why cant we all just get along?????? What does skin color have to do with anything?????? ITS 2009 PEOPLE GET OVER THE RACIAL BS!!!!!!!!!
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