Introduction

Recently, the U.S. Justice Department sued the city of Jacksonville, Florida over promotion tests that allegedly discriminate against black firefighters.

Jacksonville uses multiple-choice job knowledge tests for each competitive rank (Lieutenant, Captain, District Chief, and Engineer).

This employment discrimination case is a throw-back to earlier ones involving testing for employee selection and promotion in public safety departments.

There has been much litigation over police and fire jobs. This is probably because:

• They provide secure, middle-class opportunities with good benefits for individuals without college education.
• Before the Civil Rights Act of 1964 outlawed it, many of these departments had a history of deliberate segregation.
• These departments have been more aggressive than much of the private sector in attempting to institute objective standards that are intended to be completely fair and nondiscriminatory–but may in fact have discriminatory effects.

The discrimination alleged in the Jacksonville case

According to the Justice press release, the Jacksonville lawsuit alleges that:

[T]he examinations impact African-American candidates in two ways.

First, African-American candidates for promotion to the four positions pass the examinations at significantly lower rates than white candidates.

Second, even those African-Americans who pass the examinations are rarely promoted because the fire department selects candidates for promotion in descending rank-order based primarily upon each candidate’s written examination score and African-American candidates score significantly lower than whites.

In other words, the test is used not only on a pass-fail basis, but also to select among individuals with passing scores; indeed, potentially among those with very similar scores. In theory, someone could be passed over for promotion despite superior job evaluations and acknowledged superior leadership ability because they got one less exam question correct than the successful, but otherwise inferior, candidate.

Legal background on Jacksonville firefighter tests, qualifications, and disparate impact

There are two basic methods of proving employment discrimination: disparate treatment and disparate impact.

Disparate treatment (not involved in the Jacksonville case) involves a claim that someone was discriminated against intentionally. The Supreme Court’s decision in McDonnell Douglas v. Green (1973), discussed in this post, is the leading case on disparate treatment.

The other method, disparate impact, is the basis for the claims in the Jacksonville case. The basic law on tests and other job qualifications that have a disparate impact based on protected characteristics such as race and gender was pronounced by the Supreme Court in 1971 in Griggs v. Duke Power Co., discussed in some detail in this post.

These legal principles were codified by the Civil Rights Act of 1991, in response to a Supreme Court decision that Congress saw as having unduly restricted the application of Griggs.

Proof of a Disparate Impact Claim

There is a three-step process for proof of a disparate impact claim:

1. Prove that the group with a protected characteristic (here, African American applicants for firefighter promotions in Jacksonville) was selected (promoted) at a lower rate than others, with this disparity being statistically significant.
2. Once this is proven, the employer must show that the test or qualification is valid, meaning that it predicts job success in the target job.
3. If the employer can succeed in proving this, those challenging the practice can then attempt to show there were valid alternative employment tests or qualifications that could have been just as predictive of success, but with less adverse impact.

It is easy and commonplace for the law concerning testing and other objective job qualifications with a disparate impact to be viewed as requiring hiring or promotion of less-qualified individuals just because of their protected characteristics.

If the law strikes down an employer’s use of a test or qualification because minorities are less successful at passing the test or satisfying the qualification, it can appear that the employer is being prevented from selecting the best employees–and that this amounts to “reverse discrimination.”

Such a view is absolutely false.

To the contrary, the law facilitates hiring and promotion of the most qualified individuals by ensuring that qualifications are properly defined and measured. The Supreme Court in the 1971 Griggs case made this crystal clear:

Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance.

Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins.

Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.

What Congress has commanded is that any tests used must measure the person for the job, and not the person in the abstract.

The long, sad history of Jacksonville Fire Department discrimination litigation

In 2009, Folio Weekly (which bills itself as Northeast Florida’s largest circulation and most influential newsweekly) published a story about Jacksonville Fire Department discrimination allegations entitled, The Fire This Time, by Susan Cooper Eastman. The following sketch of the four-decade history of Jacksonville firefighter discrimination litigation is based on this article.

In 1971, a federal consent decree found there was racial discrimination in the Jacksonville Fire Department’s hiring, and required that future hiring be racially balanced 50-50. As a result, Jacksonville hired large numbers of black firefighters, and by 1991 more than 20% were black.

But black Jacksonville firefighters lagged in promotions, and in 1991 more than 90% of leadership positions were still held by whites. As of 2009, this figure had improved a bit, but only to 88%.

”The department remained plagued by incidents of racism and allegations of race-based favoritism.”

In the ’90s, “[n]umerous discrimination lawsuits pointed to the city’s failure to promote black firefighters.”

”In 1992, the city decided it was free of the consent decree, saying the ratio of black firefighters in the city was comparable to the city’s white/black ratio, although it provided no proof” and did not obtain a court release from the decree. By this time, about 20% of the department was black, compared to the citywide black population of 30%.

Also in 1992, the department changed its promotion progression, allowing only those with the rank of engineer to test for a lieutenant position. Before this change, “215 black firefighters were eligible to test for lieutenant. After the change, only four were. And because there were already 300 white engineers, there was no point in testing to become one. Black firefighters say the change effectively blocked them from moving into the officer ranks.”

“[Tt]he city’s post-consent-decree hiring practices were clearly a step backward in terms of diversity. Between 1992, the year the city declared it had met its obligation, and 1995, the city hired 136 firefighters…. [O]nly two were minority.”

“A 2006 report by the city’s Human Rights Commission, undertaken in response to the incident in which two black firefighters found nooses on their gear,…[and b]ased on questionnaires given to 525 department employees, interviews about specific complaints and a … focus group with 50 employees, … characterized the department as racist, sexist and routinely discriminatory, a place where patterns of harassment and retaliation ensured that power remained in the hands of a select few.”

While many changes were made in response to the report, and to a subsequent task force’s recommendations, one of the study’s recommendations that was rejected was to fire the department’s industrial psychologist, human resources manager, and compliance officer.

The Folio Weekly article mentions a few recent lawsuits:

• Three African-American lieutenants sued over a 1994 captain’s test. They alleged the city had improperly abandoned the 1971 consent decree, favored whites by adding “seniority points” to test scores, and had allowed questions and answers from past tests to be used to help white job candidates. The city settled the case, and in 2001 promoted the plaintiffs to captain.
• As a captain, one of these plaintiffs sued again in 2007, alleging harassment, including that when he was promoted to lieutenant after he scored in the top five on his test, “rumors circulated that he’d cheated. Some
  white firefighters in the department made up T-shirts that read, ‘I studied.’”

Criticism of the promotion test

Promotions are based on a multiple-choice job-knowledge test, with points added for time spent in rank and overall time in service.

The lawsuit challenges this promotions process on the basis that the results show whites faring better AND that “the written exams don’t test for leadership, decision-making abilities, or other qualities that make a good officer.”

One of the plaintiff’s lawyers cites by analogy “a lawsuit filed by the Boston Chapter of the NAACP about similar testing in 1974, in which lawyers noted that if the Boston Red Sox chose players based on their understanding of baseball history and terminology, the team might have a really knowledgeable team that couldn’t bat, pitch or catch.”

This is where many critics of such litigation miss the boat. For example, the “Screwball Central” blog asks: “[1] Don’t you want the people who score highest on their test to be promoted? [2] Don’t we want the smartest and best qualified people in the top positions?”

Second question first. Answer is “yes.”

First question second. Answer is “not necessarily; they may not in fact be ‘the smartest and best qualified people.’” Just like those hypothetical ball players who aced the test on baseball history and terminology.

Any more questions?

Alternatives rejected by the Jacksonville Fire Department

According to the Folio Weekly article, those challenging the Jacksonville fire promotion test note that “[s]ome cities…have phased out written exams, and started using assessment centers, which incorporate real-life scenarios, such as administering discipline or prioritizing tasks — all actions observed by an assessment team.”

Years ago, the Jacksonville task force recommended consideration of switching to such a broader-based assessment method, but “the local union has fought fiercely to keep the current exam in place…[a]nd it has enshrined the test as the department’s only method of promotion in its collective bargaining agreement.”

What were they thinking?

Dr. Cassi Fields, President and CEO of Fields Consulting Group, is a nationally known expert in the design, development, validation, and administration of public safety testing projects, with special expertise in assisting departments that have been accused of bias in their personnel practices.

She says:

It’s 2012. How do cases like this still occur? This is an especially good question given that similar cases have been tried in the past and the court decisions have favored the test-takers.

In addition, most industrial psychologists agree that multiple-choice employment tests adversely impact minority candidates, and that there are alternative methods of valid testing that result in less adverse impact.

I find it strange that Jacksonville chose to give these types of tests for so long knowing that they would likely receive an internal challenge or a lawsuit.

I also find it strange that they were willing to settle all their lawsuits without fixing the cause of the problem-–especially since discrimination settlements are costly and can result in negative publicity.

The right solution: developing compliant, fair, and successful promotion systems and standards

Though the right solution may be time-consuming and expensive on initial inspection, it’s well worth the investment and saves dollars spent in paying settlements and fighting lawsuits. Dr. Fields says an unbiased solution for a promotional system may have multiple components. Employment tests must be valid and must allow candidates from all different backgrounds the opportunity to demonstrate that they possess the necessary qualifications to succeed if promoted. This means not relying on a multiple-choice job knowledge exam alone.

The right solution also requires properly preparing candidates for the promotion they desire. This is the most important aspect of all. Candidates are often missing key information when they compete for promotions. Even worse, candidates from disadvantaged backgrounds may be less prepared in this regard to contend for the promotion.

Dr. Fields explains that the missing key information is not just the type of knowledge tested by a multiple-choice exam:

• Generally, candidates need to know the key qualifications of the job they are seeking and the characteristics of the selection process.
• Once they are made aware of these important details, they will be able to ask themselves, “Is this the job for me?”
• If they then decide they want to pursue the promotion, they must ask, “How can I better prepare myself for the selection process and position?”
• In some cases, they may have to decide if they need additional assistance with converting the information into successful strategies for advancement.

Dr. Fields calls the impact of missing information on employment and promotion success “Limited Exposure Theory (LeT©).” She calls the solution to information barriers “Missing Information Analysis (MiA©).” She has measured and successfully proved her theories in several situations similar to the Jacksonville lawsuit, and she comments, “Knowledge gives people choices and a way to succeed!”

According to Dr. Fields, the right solution to this type of assessment problem may be time-consuming and expensive. However, the correct solution would be ‘win-win,” resulting in benefits for both candidates and the employer, because:

• Candidates would benefit because the right solution would invest in them and help improve their chances for advancement.
• The employer would gain a better qualified workforce.
• A fair and validated promotional system would also improve morale, reduce hostilities between different groups of people, and allow candidates to be fairly promoted. At the end of the day, establishing an unbiased promotional system is far less expensive than lawsuits, bad press and low morale.

Expert analysis for this article was contributed by Dr. Cassi Fields, President and CEO of D.C.-based Fields Consulting Group.

Dr. Fields developed the Limited Exposure Theory (LeT©), which suggests that those from disadvantaged backgrounds lack access to the vital information they need to gain employment or advance in their careers. Dr. Fields also created the Missing Information Analysis (MiA© ) strategy, which identifies information obstacles, methods to obtain that information, and strategies for converting newly-acquired information into effective behaviors for job acquirement or career advancement.

LeT© and MiA© have helped more than 10,000 people from disadvantaged backgrounds and women advance in their careers.

Fields Consulting Group has also pioneered the use of assessment center exercises to measure community-oriented policing competencies and has directed and administered hundreds of performance assessments to businesses nationally.

Related Reading:

Race Matters

Black Rednecks and White Liberals

Seeing Race in Modern America

For Discrimination: Race, Affirmative Action, and the Law

Essential Guide to Federal Employment Laws