Friday, June 26, 2009

Daktari & J continued: Ricci v. DeStefano and I get errors when I try to post this in comments

Previously on this same Bat-Channel, D said:
OK, I'm having a problem following your logic here. So maybe you can try following mine for a minute. Black and Hispanic test takers did not score proportionately as well given their representation in the test taking pool as white test takers so the test was thrown out. (I assume that the single Hispanic plaintiff is the one who passed the exam.)

It seems to me that the racial imbalanced results have two possible origins: 1) the test was racially biased against black and hispanic test takers, or 2) it is the product of chance. Now, to the best of my knowledge, no black or hispanic test takers claimed that the test was biased at the time of the test. So any bias wasn't apparent to any of the test takers, regardless of race. All test takers were willing to wait on the results, presuming that it was a fair and balanced exam. Also to the best of my knowledge, no post-test analysis has been performed on the actual test taken to see if there is support for the claim of racial bias in the test.

Other than perfomance, there is no evidence to support the claim that the test was racially biased. So it must stand to reason that it IS the fact that no blacks made it to the "promotion level" that the test was thrown out. The city did not get the results they desired. What the hell? This case is going to go to the Supremes without the test in question even getting a once over by the people in a position to evaluate such tests?

I am sure you are right that there is residual institutional racism in the New Haven fire department. But it seems to me that the problem lies within the department's flawed policies. Change the policies if they don't give you what you want.

I for one cannot see the problem with saying that gender and racial representation should reflect that of the broader community. Therefore, half the firefighters should be men, x% should be black, x% white, x% hispanic. If you don't like that idea, then take a job somewhere else.

BUT, a handful of firefighters have been denied promotion based on the criteria that the city said it would use to promote firefighters. I hate the idea of an all white supervisory staff there, especially given the community's racial composition, but you can't switch boats mid-stream. I think these guys have a legitimate case.

The real issue for New Haven will be how to design a promotion policy that allows more equitable representation without being discriminatory against minority (for their community) ethic or racial groups.

Finally, didn't Ricci take 6 months off work to study for this test? Surely he, and anyone else who did similarly, must be seen as outliers. What happens to test results when you take these couple of fellows out of the analysis? Who know? Maybe the playing field does seem more level. There is too much unknown here to presume anything about the fairness of that test. However, it seems incredibly unfair to me that the criteria were established and agreed upon by all participants and then the rules change because the right people didn't win the game.

Will be interesting to see what the Supremes say.

J responded, here in a post body because his comments post refused to work:

Don't know that I entirely misunderstood you. I'm only half awake, but I don't think this particular policy constitutes a contract with its employees. I'm not sure how often supervisory positions come up, but seemingly not very. Besides which, promotions are (I would think) discretionary; sort of like tenure -- there doesn't have to be a particularly great reason to deny someone tenure. It can't be a purely discriminatory one, but it can be as simple as "you don't fit where we thought we were going when we hired you/when we told you that typically people with your track record of crazy hard work get tenure yesterday before the review". I mean, especially if this test is unrelated to the skills needed for the position, which is a quite arguable position (and one of the positions the black firefighters have taken). Clearly, it is not a "contract" in any absolute sense, as no one would say they were required to promote them if the deal were "we draw straws and whoever gets the longest straw gets promoted." If you then (rightly) decided that pure chance was a horrible reason to promote someone, I don't think you are breaching contract to refuse. (It may be "unfair" but again it depends on your perspective; in this case, it would be "unfair" to the supervisees and the city to have firefighters chosen by raffle when a better method could be devised to gauge quality.) Further, if the test does depend on white privilege, it could therefore be called discriminatory even if it were fair in the way I outlined earlier, that is, given sufficient backgrounding in the facts and culture, you could excel. Of course, that's the further problem -- the "contract" was that the top scorers absolutely get the promotions, not all those who passed any arbitrary cut-off. Most would agree that a written test cannot be the most effective way to determine a manager and firefighting supervisor. The agreement was for the written test to be everything -- and for having the highest relative scores being as important as high absolute scores. If the scores had been 99.9, 99.8, 99.7, 99.6, etc. and those first several were white, under the agreement as it was, they still would have to be the ones promoted -- even if those differences were within the margin of error and any number of other factors (20 years on the force vs. a well-testing greenhorn to make an extreme example) said that Mr. or Mrs. 99.2 should get promoted.

The problem is, you're of course right that if the test is "fair" then the employer shouldn't change midstream just because the results weren't what they wanted. But the law defines unfair as "ending up with a result affecting minorities differently when an alternative would work as well or better." That is, unfair for that exact circumstance, i.e. the test the white firefighters did better on is by default unfair if there is a difference in race and it can be shown that better practices could've been used for the test. Hence the tough spot the city is in -- the black firefighters may've had the law on their side had the city gone with the test because discriminatory results apparently automatically raise the possibility if not plausibility of a discriminatory test.

The problem to me is not whether or not you can change requirements mid-stream; if tomorrow the test were found to be a horrible predictor of skill, you aren't going to risk firefighters & civilians lives because of a tacit agreement with the test-takers. And if the test were obviously discriminatory, then the city would be within its rights you seem to be saying. The problem is, it's easy to (to me) to argue both sides, and no matter how you decide you may be "unfair" to one group. Fairness depends on where you stand, as does the test's discriminatory nature. In the end, the test is an attempt to make a qualitative process strictly quantitative, and that underlies the whole problem -- we can't reduce any of this to "facts" because almost every bit of it but the most basic elements are subject to interpretation.

1 comment:

Daktari said...

Man, isn't it fun arguing sides when you have no legal background whatsoever and hardly a firm grasp on the details of the case?

And in keeping in the spirit of fun, I think we both agree the test should be thrown out if it was obviously discriminatory. This, of course, demands that some objective third-party with skills evaluate the proprietary exam. I bet that does happen before this case is taken to the Supremes.

I agree that testing as a means of ranking promotable candidates should be abandoned if it is not the best predictor of success as a supervisor.

For me, this case is convoluted by the experience of Ricci, who, as we pointed out, made great personal sacrifice to achieve a place within the promotion pool. And if the test is thrown out, Ricci has suffered real loss (lost wages, lost seniority, lost retirement benefits, etc.). Sure, no other candidates did what he did. If the City had presented him and his fellow cohorts with a "fair" exam, he probably still would have landed in the promotion pool. If the City had given him a "fair" exam and he had failed, his failure would have been his own responsibility to bear. But, can we agree that this candidate was gambling on his own abilities and not on whether the City would give him a fair vs. a discriminatory exam.

He has a case. He has been harmed. Does he deserve to be promoted because of it? Maybe not. But he does deserve damages. And maybe that is where I am getting bogged down here.