Yesterday I blogged about the city of Youngstown, Ohio, hiring people for police officer and firefighter jobs from two separate lists: one for white men and one for minorities and women.
The publication I quoted, Vindy.com, published an editorial about the issue. Mayor Jay Williams wants to change the two-list hiring practice and use one list for everyone who passed the exam. The city council was supposed to vote yesterday whether to approve his request, but wants more information before voting. (Fear of disparate impact lawsuits). The mayor also seeks to hire nine to 11 firefighters from the two lists once more, because some employees recently retired and resigned.
“It is a reflection of changing times that the bifurcated eligibility lists that were the creation of a federal court as a response to what was then viewed as the unconstitutional exclusion of minorities from public employment are now themselves seen as unconstitutional. The dual lists grew out of a time when affirmative action was seen as a reasonable response to the systemic underrepresentation of minorities in public employment. In recent years, the Supreme Court of the United States has turned affirmative action policies on their head, finding that nonminorities — principally white males — were being discriminated against when minority men and women received preferential treatment in matters of educational opportunities, employment and being awarded public contracts.”
The problem with policies designed to remedy the effects past discrimination is that, inevitably, they end up discriminating against whites and non-preferred minorities. It isn’t a matter of hiring practices that negatively impact but don’t intentionally discriminate against blacks, as is the case when minorities disproportionately score too low on a promotions test. It’s a matter of intentional discrimination against whites or non-preferred minorities who did score high enough, but are passed over in the name of skin deep- and preferred minority-only diversity.
The conflict flows from the Civil Rights Act itself. Title VII contains disparate impact and disparate treatment (although the term is not used, disparate treatment means intentional discrimination) provisions. An entity can be liable for both, and complying with one provision may end up violating the other. For instance, in Ricci v. DeStefano, the city of New Haven tried to avoid disparate impact lawsuits and ended up getting sued for disparate treatment.
The Supreme Court waded through arguments and claims and decided, narrowly, that employers may avoid disparate treatment liability if they have a “strong basis in evidence” to believe they would be liable for disparate impact. Talk about pressure.
If blacks disproportionately fail employment or promotions tests, those agencies and companies may face disparate impact liability, despite a genuine effort to diversify the workforce.
Employers have an “out.” If the exam is job related, consistent with business necessity, and if there isn’t an equally valid, less discriminatory test the employer can use, he may escape disparate impact liability…but not the cost of defending such suits.
Should Congress rewrite those provisions of the law? Should employers eliminate exams altogether?
Back to the editorial. Shockingly, the writer suggests minorities themselves bear some responsibility:
“Regardless of how the numbers game plays out, having a diverse public payroll is a legitimate goal. But some of the responsibility for achieving that diversity falls on the minority community itself. Those who value diversity most highly should be pursuing a proactive agenda in which minority candidates for Civil Service jobs are recruited, beginning at an early age in schools and colleges. Tutoring programs and assistance in studying for the tests given prospective police officers and firefighters should be held at community centers and churches, with the assistance of minority employees and retirees from the departments.”
The Center for Equal Opportunity’s Roger Clegg adds in comments:
“Reasonable people can differ about the extent to which qualifications other than test scores ought to be weighed and how. But there is no reason to weigh skin color or national origin — and doing so is not only unfair and divisive, it’s illegal. If the city engages in such discrimination, it is indeed asking for a lawsuit.”
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