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Disparate Impact

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Matthew Yglesias points out that the top 12 executives are all white men at Apple (which, in less than a decade and a half, has gone from down-and-out to the world’s highest stock market valuation). He goes on to suggest how to begin fixing Apple’s problem.

Thank God I sold all my Apple stock in 1999 and used the money to buy Hewlett-Packard stock because HP had appointed Carly Fiorina CEO. As we all know, white men cannot begin to grasp the diverse needs of women and people of color, so how can they sell them computers?

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Amy L. Wax, a tenured professor at the U. of Pennsylvania Law School, writes in The Dead End of ‘Disparate Impact’ in National Affairs:

Contrary to the Supreme Court’s assumption in Griggs, the comparative power of IQ extends even to relatively uncomplicated positions requiring modest skills, such as clerical or retail work. What this means is that hiring on the basis of intelligence — as opposed to other, non-cognitive personal attributes or talents — will almost always produce better-performing workers. 

As for alternatives to written tests, it is revealing that no relevant research findings were adduced (either by New Haven or in the amici briefs for the city’s case) to support the assertion in Ricci that alternative job screens can achieve better results while promoting diversity. Although studies show that written tests of job knowledge are robust predictors of performance in public-safety jobs like policing and firefighting, “assessment center” procedures like those touted in the Ricci briefs rarely achieve comparable validity. And even when such procedures reduce adverse impact, the effects are usually too modest to satisfy legal standards. All told, there is essentially no credible evidence that “better” selection methods — ones that are equally or more valid but have less adverse impact — exist or can be readily devised. 

This is not for lack of trying. An entire cottage industry is now devoted to refining personnel selection with the goal of increasing work-force diversity without compromising an employer’s search for the most able employees. This quest has spawned a voluminous literature; the basic approach in nearly every case is to de-emphasize the academic and analytic measures on which minorities lag behind in favor of other abilities that yield smaller or non-existent racial differences. 

This work has produced uniformly disappointing results. Except in highly specialized circumstances or in staffing for the least competitive jobs, adopting alternative screening methods that minimize the significance of abilities related to intelligence almost always results in the selection of less capable workers. The reason is simple: The paucity of non-Asian minorities in competitive positions reflects real differences in human capital and skill. Thus changing entry requirements to create a more diverse work force, including scrapping existing civil-service exams, will generally not result in a more qualified work force. For now, the diversity-validity tradeoff remains the iron law of personnel selection. 

The bottom line, therefore, is that most employers who engage in genuinely meritocratic skill-based hiring using a broad range of valid personnel practices will fail to meet the disparate-impact doctrine’s threshold diversity targets. Indeed, as IOP experts Paul Sackett and Jill Ellingson have observed, most employers have no hope of even coming close to satisfying the Griggs four-fifths requirement. Group performance differences, or d values, commonly viewed as small — for example, 0.2, which is far lower than the one standard deviation black-white difference in pure tests of cognitive ability — can produce violations of the four-fifths rule in even modestly competitive hiring situations. This means that businesses that strive to hire the best workers will routinely violate the four-fifths proportionality rule for minority hires and thus expose themselves to potential disparate-impact challenges.

The disparate impact racket is four decades old now, but what percentage of the intelligentsia even knows it exists (as opposed to affirmative action in college admissions, which is vastly more discussed but probably far less important)? Five percent? And what percentage understand it?

Maybe it helps to be as smart as Amy Wax to grasp it. Here’s her bio:

A native of Troy, New York, Amy Laura Wax received a B.S. summa cum laude in molecular biophysics and biochemistry from Yale in 1975. She was then a Marshall Scholar in Philosophy, Physiology, and Psychology at Somerville College at Oxford University. She earned an M.D. from Harvard Medical School in 1981, training as a neurologist, and received a J.D. from Columbia in 1987, where she was an editor of the Law Review. She was a Law Clerk to the Honorable Abner J. Mikva, U.S. Court of Appeals for the District of Columbia Circuit from 1987-88. From 1988-94, she served as Assistant to the Office of the Solicitor General in the U.S. Department of Justice, where she argued 15 cases before the United States Supreme Court. Wax was a member of the Legal Affairs Committee, American Academy of Neurology from 1986-1992. In 1994, she joined the faculty of UVA. She taught courses in civil procedure, labor law, and poverty law and welfare policy. She became Class of 1948 Professor of Scholarly Research in Law from 2000-01. After becoming a visiting professor to Penn Law School in 2000, she joined its faculty in 2001.

• Tags: Disparate Impact 
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In the Daily Caller, Neil Munro talks to disparate impact discrimination law experts about that photo of Obama’s Chicago campaign headquarters, which, in terms of diversity, looks like a cross between the Bill James and Tilda Swinton Fan Clubs. Here are some interesting facts:

The office currently employs roughly 140 people, according to an online count by the independent group Democracy in Action. The April photo appears to show the section of the office used by many of the roughly 80 staff who work on technology-related tasks, such as video production, software development and data analysis. 

No employer could argue that there’s a lack of qualified African-American office staff in Chicago, said Sharon Jones, a diversity consultant in Chicago. 

“We’re in a situation where we have huge unemployment … [and] for racial and ethnic minorities, unemployment rates are double” that of whites, said Jones. “There are a lot of minorities who could fill jobs … [and] there are people who could move [so] I don’t think there is a lack of human capital.” 

Also, employers with an earnest desire to hire minorities turn to professional groups, such as Black Data Processing Associates, whose 8,605 members include software writers, graphic designers and video producers. “We get calls all the time from major corporations looking for black designers. … I could send them a list of 25 or 30 people right away,” said a manager in the association. 

The campaign’s staff does include several African-Americans, and some Hispanics. For example, the campaign’s website features Loren Reedy, a receptionist, and Sheena Patton, the human resources director.

No stereotyping at Obama HQ!

• Tags: Disparate Impact 
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The Official “Girls” Fan Club celebrates another great episode!
Oh, wait …
Via Untethered, here’s a picture of Obama Campaign Headquarters in Chicago from the Obama 2012 Tumblr account. There’s definitely one African-American in the back row-center (a large man in a black shirt). There might be another black or two in the back row, but that appears to be about it. Please do click on the picture to see it full size.

In 2011, I blogged:

Will the EEOC apply the Four-Fifths rule to this organization?

Company: Obama 2012 Presidential Campaign
Location: Chicago, IL

The Obama for America Analytics Department analyzes the campaign’s data to guide election strategy and develop quantitative, actionable insights that drive our decision-making. Our team’s products help direct work on the ground, online and on the air. 

We are looking for Predictive Modeling/Data Mining Scientists and Analysts, at both the senior and junior level, to join our department through November 2012 at our Chicago Headquarters. We are a multi-disciplinary team of statisticians, predictive modelers, data mining experts, mathematicians, software developers, general analysts and organizers – all striving for a single goal: re-electing President Obama. 

Using statistical predictive modeling, the Democratic Party’s comprehensive political database, and publicly available data, modeling analysts are charged with predicting the behavior of the American electorate. These models will be instrumental in helping the campaign determine which voters to target for turnout and persuasion efforts, where to buy advertising and how to best approach digital media. 

Our Modeling Analysts will dive head-first into our massive data to solve some of our most critical online and offline challenges. We will analyze millions of interactions a day, learning from terabytes of historical data, running thousands of experiments, to inform campaign strategy and critical decisions.

If the Obama for America Analytics Department doesn’t hire at least four-fifths as many Hispanic females as Asian males, then Eric Holder is going to want to know why!
Or, I guess not.

Here’s the disclaimer at the end of last year’s Obama quant ad:

Obama for America is committed to diversity among its staff, and recognizes that its continued success requires the highest commitment to obtaining and retaining a diverse staff that provides the best quality services to supporters and constituents. Obama for America is an equal opportunity employer and it is our policy to recruit, hire, train, promote and administer any and all personnel actions without regard to sex, race, age, color, creed, national origin, religion, economic status, sexual orientation, veteran status, gender identity or expression, ethnic identity or physical disability, or any other legally protected basis. Obama for America will not tolerate any unlawful discrimination and any such conduct is strictly prohibited.

Just kidding!

I started working at a Chicago marketing research firm thirty years ago, doing similar work, and we always had a higher percentage of black employees than you see in this Obama Chicago HQ picture. My boss was black in 1986-1988.

People always say, “Who ever imagined a black man would be President?” Well, I always assumed it would happen. I was kind of surprised it wasn’t Colin Powell in 1996. But I am surprised by this photo of the black President’s campaign staffers. That’s not something I would have forecasted a generation ago.

Mark Steyn talks about how 21st Century British pop stars, such as James Blunt, are much posher in upbringing than pop stars were in the Rod Stewart days. Blunt (officially, Blount; “Blunt” is just easier for the proles to pronounce) is an Old Harrovian and graduate of Sandhurst, who spent six years as an officer in the Life Guards, the senior regiment in the British Army. Wikipedia’s bio of him features the greatest sentence of all time: “The Blount family has a long history of military service, dating from the 10th century.” So, the Blounts are in their third millenium in the officer class.

Anyway, it appears that a lot of the key careers in culture and politics are getting more upscale.

• Tags: Disparate Impact 
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From WCBS in New York:

There were hurt feelings and racial tensions as white applicants were left standing outside a prep class on Wednesday night, reports CBS 2’s Lou Young. 

“Whoever’s name is not on the list is not getting in, so were just following orders. That’s just the way it is,” the applicants were told. 

Joseph Basile was one of those who didn’t get in. 

“It wasn’t a good feeling. It felt like it was discrimination,” Basile said. 

The class was conducted by the Vulcan Society, a group of African American firefighters in an overwhelmingly white department. Many applicants who were turned away preregistered online on forms that did not ask for their race, which made for testy moment. … 

Wednesday night’s class was the third in a series of prep exams given by the Vulcan Society. The previous two were integrated. The one Wednesday was the only one from which people were barred from attending.

To the ranks of Tiger Mothers and Eagle Fathers, we can add the Dalmatian Dads of the Fire Department of New York, who encourage their sons and nephews to study hard the family trade of saving people from burning buildings. 

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As you may recall from Malcolm Gladwell’s bestseller Blink, you should always trust your instantaneous assessment of any situation. Except when you are wrong. Or, when you are right but are politically incorrect. A big part of Blink was devoted to implicit association tests that determine if one is subconsciously more likely to associate words like “crime” with a picture of, say, OJ Simpson than of, say, Peyton Manning. Or something like that.
Oddly enough, Judge Robert Blink has been assigned a huge employment discrimination trial based on the Blink theory that whites can’t help being subconsciously evil to blacks, as shown by implicit association tests (and by nothing else).  

Denied jobs, blacks in Iowa test new bias theory 

By RYAN J. FOLEY | Associated Press – 2 hrs 55 mins ago 

IOWA CITY, Iowa (AP) — In a case closely watched by civil rights activists, an Iowa judge will soon decide whether to grant thousands of black employees and job applicants monetary damages for hiring practices used by Iowa state government that they say have disadvantaged them. 

Experts say the case is the largest class-action lawsuit of its kind against an entire state government’s civil service system, and tests a legal theory that social science and statistics alone can prove widespread discrimination. 

The plaintiffs — up to 6,000 African-Americans passed over for state jobs and promotions dating back to 2003 — do not say they faced overt racism or discriminatory hiring tests in Iowa, a state that is 91 percent white. Instead, their lawyers argue that managers subconsciously favored whites across state government, leaving blacks at a disadvantage in decisions over who got interviewed, hired and promoted. 

Judge Robert Blink’s decision, expected in coming weeks, could award damages and mandate changes in state personnel policies or dismiss a case that represents a growing front of discrimination litigation. 

“Whenever there is a case like this that goes to trial, it’s of interest to all of us,” said Jocelyn Larkin, executive director of the Impact Fund, a Berkeley, Calif.-based nonprofit that supports employment discrimination lawsuits and has followed the case. … 

University of Washington psychology professor Anthony Greenwald, an expert on implicit bias who testified on behalf of the plaintiffs, said the decision will be important nationally because similar cases against corporations have usually been dismissed or settled before trial. 

Scholars and employment lawyers have shown a growing interest in implicit bias in the last several years, after Greenwald and other scientists developed the Implicit Association Test to test racial stereotypes. Their research found an inherent preference for whites over blacks — in up to 80 percent of test-takers and among many people who do not consider themselves racist. 

The theory hit a legal obstacle last year when the U.S. Supreme Court disqualified a class-action lawsuit against Wal-Mart’s pay and promotion practices for women. The court found the class was too broad and failed to challenge a specific hiring practice as discriminatory. 

Lawyers defending the state have cited that decision in asking Blink to dismiss the case. But the high court’s decision did not specifically reject the theory of implicit bias, and dissenting Justice Ruth Bader Ginsburg wrote that such claims can be allowed. 

Class attorney Thomas Newkirk said the science and other evidence that shows disadvantaged groups such as blacks face employment discrimination in subtle ways “is becoming overwhelming.” 

“Clearly, the problem is not in Iowa alone, but we believe Iowa is the exactly the right place to ask society to take control of this important issue fairly for all races, and to seek a better future for all as a result,” said Newkirk, who was recently honored by the Des Moines chapter of the National Association for the Advancement of Colored People for his work on the case. 

During a monthlong trial last fall, experts called by the plaintiffs’ lawyers testified that blacks are hired at lower rates than whites with similar qualifications and receive less favorable evaluations and lower starting salaries. 

If Iowa is only hiring the cream of the crop of black applicants, shouldn’t the black hires be performing better, not worse, than the white hires? Or maybe they are but their evaluations are worse because everybody is so unconsciously biased. After all, Science is the art of creating unfalsifiable theories. It’s discrimination turtles all the way down.

In its most prominent recent exercise in hiring, the state of Iowa voted for Obama over McCain 54-45, but they were just doing that to cover up. We can tell.

By the way, seriously, Iowa has few but bad blacks. In 1997, Iowa had the highest black incarceration rate among the 50 states. Liberal north central states with strong safety nets like Iowa, Wisconsin, and Minnesota, tended to attract the last and worst Southern blacks to leave.

• Tags: Disparate Impact 
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I have this vague impression that Saturday is the day when the New York Times dumps its discrimination stories — you know, the kind of clueless stuff that I love pointing out the logical holes in. For example, this Saturday, the NYT headlines: 

Blacks Face Bias in Bankruptcy, Study Suggests

Maybe my cynicism has got the best of me, but I wouldn’t be hugely surprised to learn that the New York Times has some kind of formal or informal quota about the number of stories it feels it must run weekly about the scourge of racism, but that its editors also feel that NYT readers are increasingly cynical and bored about scandals involving purported discrimination (unless you are some weirdo like me who finds that discrimination stories offer insights into how the world actually works). So, perhaps the editors tend to dump their Sailer-bait stories on Saturday, which is by far the least important day of the week in the newspaper business.
What about this new study that shows that, all across the country, relative to everybody else who goes bankrupt, blacks who go bankrupt are more likely to file for the more onerous Chapter 13 bankruptcy than the Chapter 7 bankruptcy? Why this disparate impact discrimination?
Eventually, the article gets around to reporting — but, of course, not explaining — a few informative facts:

Even though the attorneys’ fees for the more labor-intensive Chapter 13 are more than double the charge for a Chapter 7, some truly distressed debtors will pursue a Chapter 13 anyway, several bankruptcy experts said. That is because they can pay the fee over time, unlike in a Chapter 7, which typically requires a payment before the case is filed. If blacks are perceived as less likely to have the resources — or a family with resources — to come up with a lump sum, some lawyers may be inclined to suggest a Chapter 13, these experts suggested.

The mention that attorneys’ fees are more than double for Chapter 13 raises the awkward question that never comes up in the article: Are blacks’ attorneys more likely to be black? It’s like that awkward question about the high rates of defaults by minorities on mortgages: How did the racial makeup of the mortgage brokers who sold mortgages that went belly up to Hispanics differ from the norm? 
So, why would lawyers tend to perceive blacks “as less likely to have the resources — of a family with resources — to come up with a lump sum”? How in the world did this stereotype of blacks tending to be poorer than whites get started, anyway? 
In general, A) the people who wind up in bankruptcy are poorer decisionmakers. B) Blacks wind up in bankruptcy at a higher rate. Therefore, it’s hardly surprising that black bankruptees tend to be worse decisionmakers in bankruptcy than other bankruptees.
The most interesting thing about this data is actually that bankrupt Hispanics have the lowest rate of filing Chapter 13. Perhaps Hispanics have more extended family support in coming up with the lump sum, or perhaps the ones who would be likely to file Chapter 13 just take off for South of the Border. 

• Tags: Disparate Impact 
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From the New York Times, an update on the Vulcan Society disparate impact discrimination lawsuit filed by the Bush Administration (thanks, Alberto!):

In a lacerating decision that accused Mayor Michael R. Bloomberg of willfully ignoring the racial imbalance in the New York Fire Department, a federal judge ruled on Wednesday that a court-appointed monitor would be installed to oversee the department’s recruitment efforts and ensure that more minority candidates are hired.

The decision by the judge, Nicholas G. Garaufis of Federal District Court in Brooklyn, comes at the end of four years of bitter litigation in which the city and the Fire Department stood accused of allowing the department to remain almost 97 percent white for decades, despite the fact that the city’s population is about 25 percent black.

Judge Garaufis has been revealing himself to be an innumerate fool for a couple of years now, but do you think anybody he knows has ever pointed this out to him? There is no shame in our society for being a certain kind of idiot. He, in fact, gives off repeated hints that he’s immensely proud of himself.
The judge’s latest decision is a case study in disparate impact reasoning, such as it is. 
The one interesting thing is a footnote showing that while blacks make up 3.8% of the FDNY, blacks make up 61.4% of the Corrections Department. Why no disparate impact study of that department, where blacks are wildly overrepresented? (Presumably, blacks like working for a black-dominated department where you don’t have to run into burning buildings, the technical knowledge requirements are lower, and maybe there are more chances for graft.)
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Kevin Drum is upset by an LA Times article:

The financial industry, long known for its boys-club environment, has only a small fraction of women as top executives. And that small cadre has been thinning out in recent years, with the most recent example Krawcheck’s departure as BofA’s president of global wealth management. Her departure is part of a broader trend in the financial industry in recent years: Female employees are losing their jobs at a faster clip than men. … 

….The finance industry has not historically been known as a welcoming place for women. The cigar and strip-club reputation was confirmed by a lawsuit against Smith Barney in the 1990s, which accused it of turning a blind eye to raunchy, sexist behavior. The lawsuit later became the subject of a book called “Tales From the Boom-Boom Room.” 

The attention brought by the suit spurred wide-scale changes that helped stamp out overt discrimination and open up hiring. A decade ago, the number of women in finance was rising.

Similarly, on Forbes:

Public-relations executive Richard Edelman writes in his blog this week that he wants women to occupy half of the senior roles in his company by 2016. 

“Our goal is simple—50% of those on Strategy Committee, Operating Committee, GCRM and practice leadership will be women by 2016,” he writes. “They will have earned the positions; there will not be a quota.” 

Edelman, who is president and CEO of Edelman, the world’s largest independent public-relations firm, acknowledges that his industry has no problem attracting women. Some two-thirds of his workforce is female, he writes. But the ranks of women start to thin in leadership roles.

Wall Street, as seen in the works of Tom Wolfe, Michael Lewis, and Oliver Stone, is a notoriously competitive, macho, insensitive environment. 
Other industries are less so, but, still, as you climb the corporate ladder, the environments often get more macho. 
For example, I worked for a successful start-up in market research, which was, at the MBA entry level, very yuppie and pretty gender neutral (we went out to restaurants in mixed sex groups and then talked about other restaurants, since food was one topic that appealed to both sexes). The market research industry as a whole is pretty genteel and sedate. One marketing research tycoon I knew, an old B-17 bomber pilot, liked to point out, with a little contempt, that most of his competitors had been started by college professors or housewives. (I suspect PR is even more feminine and much more gay at the MBA entry level than is Marketing Research. But, the top dogs even in big PR firms tend do be masculine guys.)
But the founders of my company, which revolutionized the market research industry in the 1980s, were high testosterone guys who were into importing Porsches that had to be customized for six months just to be street legal in the U.S. One morning in 1983, after about six months on the job, I was standing on a street corner in Lincoln Park waiting for the bus to work, when the CEO pulls up in his TurboPorshe and offers me a ride. “Sure!” But, the stoplights on La Salle Street heading toward the Loop are not optimized for a CEO who floors it at every green light and thus gets caught by every single red light. So, every block consisted of us going 0-60 in five seconds, with my head being shoved back into the headrest, followed by 60-0 in five seconds (with my forehead just about bouncing off the dashboard). When we got to work, the CEO offered to pick me up every morning on that corner, but, feeling pummeled by G-forces and whiplash from the ride, I went back to taking the bus.
Then, luckily for me, when the founders started pushing 40, their recreations downshifted from the Need for Speed to becoming fanatical golfers. This worked out well for me socially at the office, because, being a lower testosterone guy about a decade younger, I’d transitioned earlier from playing contact sports to being a golf fanatic at about age 25. So, by the time the bigshots’ hormone levels had dropped enough to move on from racing sports to golf, I was already an expert on all the best public golf courses in the Chicago area. So I played a lot of golf with the top dogs while they were getting started in the game. (One boss got so into my hobby of golf course architecture that he went on to build his own fine golf course in Wisconsin, and then singlehandedly revamped, without a professional golf course architect’s assitance, it to make it more interesting.)
Very few women feel the urge to, say, drive around the Chicago suburbs visiting golf courses to rate them for quality. It’s a good thing to know for career networking purposes, but it really only appeals to individuals with a nerdy turn of mind and a fairly average level (for a man) of male hormones. It’s not utterly unknown among women — one very friendly, slightly tomboyish woman golfer in Accounting was a popular choice for golf foursomes, but she wasn’t really into finding new, good golf courses to play (but she liked to arrange golf resort trips, with more emphasis on quality of accommodations than on the course itself — a more feminine version of this urge). But caring a lot about golf courses is fairly rare among men and extremely rare among women.
Returning to these complaints about disparate impact on women in the executive suites, let me point out that one mechanism that thins the ranks of women in the executive suites is that as young women climb the corporate ladder, they come into less and less contact with the dweebier guys down the ladder and more and more contact with the most powerful and ambitious men at the top. Women don’t generally love working in the macho atmospheres found higher up, but a lot of them do fall in love with individual macho executives, whom they often marry. And then they tend to downsize their own careers (since their husbands make so much money) to concentrate on helicopter mothering their children. 
I recall one young woman at my old company who was shooting up the corporate ladder until she became a direct report to the single most brilliant youngish executive. After awhile, he left his wife and kids to marry her, and then she started concentrating less on her own career and instead on the promoting the career of her very high income, very high potential new husband.
So, here’s a different model of what might have happened on Wall Street: Affirmative action pressure to hire women at Wall Street banks to avoid disparate impact lawsuits led to a lot of women getting hired, who then found that they don’t really like trading, with its macho atmosphere, but they do like macho traders. In fact, they like them so much they want to have their babies. So, they tended to marry a rich male colleague, then downshift careerwise to being a Tiger Mother for their offspring.
I can’t say that
I’m terribly outraged by any of this.

• Tags: Disparate Impact, Feminism 
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From the NYT, more on the triumphant Vulcan disparate impact discrimination lawsuit, filed by the Bush Administration in 2007, against the Fire Department of New York.

One afternoon after the trial let out, Capt. Paul Washington, a black officer in Engine Company 234, in Brooklyn, sat in the courthouse cafeteria with Firefighter John Coombs, president of the Vulcans. An hour earlier, Captain Washington had testified about racial insults he encountered on the job: the casual flinging of the N-word and the defacement of a flier for the Vulcans’ first memorial service after 9/11. Where the guest speaker’s name was printed, someone had scribbled other names: Buckwheat, Al Sharpton, Fat Albert. 

Now, the two men explained that overt animus like that was fairly uncommon on the job. Instead, they complained of a corrosive obliviousness to race, discernible in acts as unsubtle as dinner-table condemnations of affirmative action and as seemingly innocuous as a recreation-room preference for Fox News. 

“Our experience is different,” Captain Washington said. “There’s 50 white guys in a firehouse from the same background — middle-class, Long Island, the kids play soccer together — so, yeah, they’re having a ball. But if you’re the one black guy in the house, maybe you ain’t having so much fun.”

• Tags: Disparate Impact, Race 
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From the New York Daily News on the next phase in the Vulcan Society v. Fire Department of New York disparate impact discrimination lawsuit:

The controversial upcoming FDNY [Fire Department New York] exam will be the most expensive test in the city’s history, the Daily News has learned. 

The new civil service test, ordered by a Brooklyn federal judge who declared that previous FDNY exams discriminated against minorities, is expected to cost the city more than $3.3 million to develop and administer, officials said. 

The cost of the previous Fire Department exam, given in 2007, was $1.3 million, according to officials at the Department of Citywide Administrative Services. 

The huge jump in cost hasn’t sat well in City Hall. “This litigation has forced some very costly mandates on the city for the development and administration of the test,” said Julie Wood, spokeswoman for Mayor Bloomberg. “We have to pay for them.” 

Judge Nicholas Garaufis last year demanded that the city alter its method of recruiting firefighters and blocked the FDNY – which is 91% white – from hiring any candidates until a new test was created. The judge also mandated that the new test be created by an outside developer, instead of within DCAS – the agency that normally creates the city’s exams. 

The city hired California-based PSI Services to develop and give the test, which is expected to be given in the first few months of 2012. 

The requirement to hire an expensive outside consultant has sent costs soaring, City Hall insiders grumbled.

This is the golden age of for-profit psychometrics. A big driving force is the following logic:
- We are unsatisfied with the disparate impact of the current test.

- Since, as everyone knows, it’s racist to say that there is anything unsatisfactory about minority test-takers, therefore the test must be unsatisfactory.

- Ergo, we should hire an expensive psychometric consulting firm on a cost-plus contract to finally design a non-discriminatory test from scratch that won’t have disparate impact. Obviously, the only possible reason that none of the countless tests already created eliminated disparate impact is that they weren’t trying hard enough. So, if we have to spend an extra million or two million dollars to get the Platinum Premium custom-designed test that will finally overcome disparate impact, then it’s well worth it. (Subsidiary logic: Pay no attention to results in other cities during the last several decades. Otherwise, you might learning something, and learning is racist. If you do ever let yourself notice that everybody else has failed at what you plan to do, reassure yourself that the reason all these other cities have failed to find the holy grail of the fire department test without disparate impact is because they were not as pure of heart as you are.)
Lather, rinse, and repeat ad infinitum. Hey, it’s a living for testing firms.
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Here’s the abstract of a new law review article:

Disparate Impact Realism 

Amy L. Wax
University of Pennsylvania Law School
William & Mary Law Review, Forthcoming  


In Ricci v. DeStefano, 129 S. Ct. 2658 (2009), the Supreme Court recently reaffirmed the doctrine, first articulated by the Court in Griggs v. Duke Power Company, 401 U.S. 424 (1971), that employers can be held liable under Title VII of the 1964 Civil Rights Act for neutral personnel practices with a disparate impact on minority workers. The Griggs Court further held that employers can escape liability by showing that their staffing practices are job related or consistent with business necessity. 

In the interim since Griggs, social scientists have generated evidence undermining two key assumptions behind that decision and its progeny. First, the Court in Griggs noted the absence of evidence that the selection criteria in that case (a high school diploma and an aptitude test) were related to subsequent performance of the service jobs at issue, and expressed doubt about the existence of such a link. But research in industrial and organization psychology (IOP) has repeatedly documented that tests and criteria such as those at issue in Griggs (which are heavily “g”-loaded and thus dependent on cognitive ability) remain the best predictors of performance for jobs at all levels of complexity. Second, Griggs and its progeny rest on the implicit assumption, reflected in the so-called 4/5 rule, that fair and valid hiring criteria will result in a workplace that roughly reflects the representation of each group in the background population. Work in psychometrics and labor economics shows that this assumption is unjustified. Because blacks lag significantly behind whites on measures of cognitive ability, most valid job selection criteria will have a substantial adverse impact on this group. The combination of well-documented racial differences in cognitive ability and the consistent link between ability and job performance generates a pattern that experts term “the validity-diversity tradeoff”: job selection devices that best predict future job performance generate the smallest number of minority hires in a broad range of positions. Indeed, the evidence indicates that most valid screening devices will have a significant adverse impact on blacks and will also violate the 4/5 rule under the law of disparate impact.  

Because legitimately meritocratic (that is, job-related) job selection practices will routinely trigger prima facie violations of the disparate impact rule, employers who adopt such practices run the risk of being required to justify them – a costly and difficult task that encourages undesirable, self-protective behaviors and may result in unwarranted liability. To alleviate this burden, the article proposes to adopt a new regime of “disparate impact realism” that abandons the 4/5 rule in favor of sliding scale ratios pegged to measured disparities in group performance and the selectivity of particular positions. Alternatively, the disparate impact rule should be repealed altogether. The data indicate that pronounced differences in the background distribution of skill and human capital, not arbitrary hurdles imposed by employers, are the principle factor behind racial imbalances in most jobs. Moreover, blacks lag behind whites in actual on-the-job performance, which indicates that employers are not unfairly excluding minorities from the workforce but rather bending over backwards to include them. Disparate impact litigation, which does nothing to correct existing disparities and distracts from the task of addressing them, represents a cumbersome, misplaced effort that could better be directed at the root causes of workforce racial imbalance.

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In his response to the Supreme Court tossing out 5-4 the vast Walmart disparate impact discrimination lawsuit, Matthew Yglesias deftly threads the needle of placating feminists without actually embarrassing himself by positing:

“Imagine that general background social conditions in the United States are such that women will be disadvantaged in any male-run institution that doesn’t make a specific and deliberate effort to lean against that disadvantage.”

Imagining is fun! What else should we imagine? 
To imagine that Walmart discriminates against female employees is to imagine that it discriminates in favor of male employees, which is to imagine that Walmart, evidently a Big Softie famous for leaving money on the table, overpays for male employees. 
But I don’t have a big enough imagination to imagine that.

• Tags: Disparate Impact 
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Has the Equal Employment Opportunity Commission ever sued employers over their disparate impact discrimination against American citizens?
By definition, H-1B visa hiring constitutes 100% disparate impact discrimination against American citizens. A decade ago, American citizen Dana A. Rothrock filed a complaint with the EEOC pointing out that he couldn’t get hired for a computer job at the Texas Department of Criminal Justice, which was using H-1B visas to hire Filipinos and other foreign nationals, since he was an American.
On May 28, 2003, the EEOC explained that they were rejecting his complaint because [here and here]:

While Title VII does not prohibit citizenship discrimination per se, citizenship discrimination does violate Title VII where it has the “purpose or effect” of discriminating on the basis of national origin. 

Employment discrimination against a national origin group includes discrimination based on a group of people sharing a common language, culture, ancestry, and/or other similar social characteristics. American is not a national origin group as defined by Title VII of the Civil Rights Act, as amended. … 

Roberto Coronado
Federal Investigator

Shouldn’t the EEOC’s official motto be “Who? Whom?”

• Tags: Disparate Impact 
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From the Houston Chronicle on the Obama Administration’s assiduous efforts to make it harder for employers to hire good employees:

P. David Lopez, general counsel for the Equal Employment Opportunity Commission, was in Houston recently to speak before a conference about race discrimination and his agency’s efforts to take on large-scale, nationwide investigations. … 

Q: What are the big, cutting-edge discrimination issues facing the EEOC?

A: We’re going through difficult economic times right now. It’s important to us to identify discriminatory hiring practices and policies that are excluding people unlawfully from the workplace. 

I think the EEOC is in a unique position to do that. We’re able to look at the patterns within a particular employer in a way a private individual isn’t. You often don’t know why you weren’t hired. We can examine an employer’s reasons and try to identify if there were any hiring screens. 

We have a race discrimination case out of Chicago (that involved) a contracting company for custodial services. They had a predominantly Eastern European and Latino workforce and the (lack of) representation of African-Americans compared to the availability was statistically significant. They were using either word-of-mouth recruitment practices or relying on certain ethnic press. 

We resolved it for $3 million and approximately 550 people benefited – the people who applied but weren’t hired. The consent decree requires the company to actively recruit African-Americans. The whole goal is to make sure it doesn’t happen again. 

Another case we filed is a nationwide challenge to criminal arrest and conviction screens. We challenged that as having a disparate impact against African-Americans and Latinos. That is still pending in Baltimore. 

I watched some of The Wire, and thank God the Obama Administration is cracking down on employers discriminating against criminals in Baltimore. These companies will make much higher profits once the Obama Administration forces them to overcome their bias against Baltimore convicts. Who wouldn’t want to hire Baltimore’s crooks? Didn’t President Obama say Omar, the gay gunman, was his favorite character on The Wire? I don’t want to be guilty of insider trading, but you should buy Baltimore real estate now, because, obviously, employment in Baltimore is going to boom once the Obama Administration stops all this irrational discrimination against Baltimore’s armed robbers and murderers. Who wouldn’t want to be an employer in Baltimore once the Obama Administration is in charge of your hiring policy?

Oh, now I notice that this case is “nationwide.” The case is pending in Baltimore merely because the Obama Administration just wanted a jury of Wire characters. So, good times are here again … nationwide!

Another one was filed in Ohio and we’re looking at the use of credit reportsto screen out applicants. We allege it has a disparate impact against African-Americans.

Credit checks and criminal screens (were big) in the ’70s and ’80s and sort of disappeared but with the new economy, employers are adopting these types of employment screens. That is something that has generated a lot of interest at the EEOC. 

Q: Why are more employers using credit scores and criminal convictions to weed out job applicants? 

A: My speculation is that employers are in a position to generate much more interest in jobs and they’re looking for shorthand ways to screen applicants. If we’re able to establish disparate impact, then it’s the employer’s burden to demonstrate the hiring qualification is job-related. 

(Employers) say it relates to honesty and performance. But that’s where most of the litigation and discussion has centered – whether these screens can really be job-related and a business necessity. 

Q: With so much information available online about virtually everyone, how much checking should an employer do before making a hiring decision? 

A: I think they need to be very cautious doing online background checks. 

There is the potential that if employers do that, certain classes of individuals will be scrutinized more heavily and you’ll only look at the Facebook pages of certain applicants. There are potentially disparate treatment implications in doing that.

Speaking of fighting discrimination, shouldn’t the Obama Administration be filing disparate impact lawsuits based on job applicants having Facebook v. MySpace pages?

• Tags: Disparate Impact 
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Walmart is the biggest private employer in the world, has the biggest annual revenue, and earns the 9th largest profits. 
The Supreme Court is currently considering whether a massive class-action lawsuit claiming to represent all million-plus female employees of Walmart can go forward based on disparate impact statistics. 
The crude view of discrimination is the standard Who-Whom one, which assumes that of course Walmart pays less to women because Walmart is run by white men, who are evil. 
A more sophisticated view is the Malcolm Gladwellian one. Back in the 1950s, Gary Becker wrote his doctoral thesis for his adviser, Milton Friedman, on how discrimination is economically irrational because it costs the employer profits. If you pay below the market rate, you get lousier employees and customers go away. 
In a section in Blink on how car salesmen charge women and blacks more moneyGladwell added a new level to the U. of Chicago theory: Discrimination happens not because business executives are evil but because their consciousnesses about their biased implicit associations haven’t yet been raised by expensive-enough guest speakers at their annual sales conventions. Walmart executives, like car salesmen, are, when you stop and think about it, the real victims here. They’re leaving money on the table because they don’t realize that they don’t realize that everybody is equal, which everybody is, of course. That goes without saying.
In my experience, however, Walmart never leaves money on the table. 
• Tags: Disparate Impact 
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The [Department of Justice Civil Rights Division's] report found from 2009 to 2010 all 27 incidents of NOPD deadly force were against African Americans, and in 2009  the department arrested 500 black and 8 white males under age of 17, which diverges “severely” from national data.
Disparate impact, I tell you!

In 2000 (the most recent data I can find), the NOPD was 51% black. I can’t find anything in the Obama Administration’s report on the racial identity of these NOPD police officers they are criticizing. That seems like a bit of an omission for a Civil Rights Division report, no? How often does that division forget to mention the racial makeup of an organization they are criticizing?

What former Mayor Ray Nagin called “Chocolate City” had its first African American mayor in 1978 and its first black police chief about a quarter of a century ago. A residency requirement for cops worked to discourage working class whites from joining the NOPD.The NOPD, which had always been shady, became notoriously gangsta in the late 20th Century.

This part of the Civil Rights Divisions’ report on the New Orleans’ Police Department report makes interesting reading in light of the Civil Right Division’s requirement that the Dayton Police Department hire more marginal applicants(see below):

NOPD hired hundreds of officers during a relatively short time period; one estimate is that 400 officers were hired during the three year period following Katrina. In its press to hire these officers, NOPD reportedly lowered its recruiting standards, essentially removing the physical agility requirement and asking the Civil Service Commission to score the written portion of the application less vigorously.

… At the time of our review, the attrition rate for the latest recruit class was nearly sixty percent. Of the sixty-six recruits that successfully completed the recruitment and background investigation, thirty-nine were eliminated from the training class. NOPD expended thousands of dollars to test, train, and conduct background checks on what were clearly marginal applicants, a waste of funds that NOPD could have better used in a more targeted recruiting process. Nonetheless, NOPD’s decision to eject unqualified candidates before they became officers was the appropriate one. In interviews with NOPD officers at all ranks, we heard the consistent complaint that the Training Academy routinely graduated police recruits who were sub-par and not fit for duty.

Meanwhile, the Obama Administration is working to New Orleansize the Dayton Police Department.

Prediction: Nobody in the Obama DOJ will ever notice the contradiction between their complaints about New Orleans police applicants being scored less vigorously on the written test and their simultaneous demands that Dayton police applicants be scored less vigorously.

That would be HateLogic!

Let me add that the politics of this appear a little byzantine. Federal intervention in the police force was demanded by the new mayor, the first white mayor in 32 years, who was elected after lots of poor black voters were flooded out of the Lower 9th Ward. My guess is that the white mayor’s intention is to bring the feds in to stage a quiet coup against a black-dominated institution, but to do it in the name of Civil Rights.

Very clever … but can this kind of double bankshot maneuver be executed adroitly when nobody is allowed to mention in public what the problem is and only vaguely hint at what the solution is? After all, the Civil Rights Division doesn’t have much practice at requiring organizations to grade hiring tests more vigorously. Are Obama’s DOJ minions  going to be able to remember that the point of this exercise is to hire smarter, less criminal cops — i.e., whiter cops? That’s not exactly what Civil Rights Division lawyers are trained to do, as Dayton shows. From the report, it looks like the best they’ll be able to do is force the NOPD to hire lots of Hispanic and Vietnamese cops. As I said, a double bankshot.

We shall see.

• Tags: Crime, Disparate Impact 
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The NYT runs a long, mildly gloating article over the Washington Post’s Kaplan unit being sued by the Obama Administration for disparate impact job discrimination in a precedent-setting case:

Sending a sharp warning to employers nationwide, the Equal Employment Opportunity Commission sued the Kaplan Higher Education Corporation on Tuesday, accusing it of discriminating against black job applicants through the way it uses credit histories in its hiring process. 

With the unemployment rate close to 10 percent, is it really a good idea for the Obama Administration to be “sending a sharp warning to employers nationwide?”

The lawsuit, an unusual intervention by the federal government on the issue, comes amid rising concerns that employers are denying jobs to applicants with damaged credit histories, even in cases where creditworthiness does not appear to be directly relevant to the job…

Private and government surveys have suggested that about half of all employers use credit histories in at least some hiring decisions.

Justine Lisser, an E.E.O.C. spokeswoman, said that credit histories were often inaccurate and might not be a good indicator of a person’s qualifications for a particular job. “Credit histories were not compiled to show responsibility,” she said. “They were compiled to show whether or not someone was paying the bills, which is not always the same thing.”

In the E.E.O.C.’s suit, which was filed in federal district court in Cleveland, the agency said that since at least January 2008, Kaplan had rejected job applicants based on their credit history, with a “significant disparate impact” on blacks.

“This practice has an unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity,” the commission said. The agency did not specify what types of jobs were involved.

… The company added that it typically conducted background checks on all prospective employees. “The checks are job-related and a necessity for our organization to ensure that staff handling financial matters, including financial aid, are properly screened,” Kaplan said. Kaplan and other for-profit education companies have come under intense scrutiny from the federal government because of concerns that the industry leaves too many students unable to repay large federally backed education loans, while providing them with little help in finding jobs. The Department of Education has proposed regulations that would cut off federal financing to for-profit education companies whose graduates have high debt-to-income ratios and low repayment rates. 

Let me see if I understand this: One part of the Obama Administration says that some of what Kaplan does borders on being a scam (which seems pretty plausible); meanwhile, another part of the Obama Administration demands that Kaplan hire people who on average have worse track records of untrustworthiness.

Sounds like a  plan to me!

The bigger issue is not Kaplan,  of course, but the Obama Administration choosing to make it riskier to hire Americans (instead of outsourcing or insourcing to illegal aliens less likely to sue). Obviously, taking away a tool that firms find profit-making in hiring just discourages hiring; yet, I don’t think that’s obvious to many people these days when it comes to race, where we’ve all been taught to shut our brains off and just point fingers at bad people.

The federal lawsuit is seeking a permanent injunction to stop Kaplan’s use of credit histories in hiring and other employment decisions. The agency is also seeking lost wages and benefits for people who were not hired because of Kaplan’s use of credit reports to screen applicants, and it wants Kaplan to make employment offers to those individuals.

Michael J. Zimmer, a professor of employment law at Loyola University in Chicago, said that, under federal law, “if an employment practice has a disparate impact on a certain race, you have a case.” He said that the E.E.O.C. would not have brought the case unless it had reviewed statistics about Kaplan’s hiring.

“I think the issue is going to boil down to whether it’s justified as job-related and necessary for business,” he said. “That’s the defense’s standard in a disparate impact case.”

As I said last month in VDARE, the most obvious area where Obama could use his political capital to boost hiring is by declaring victory in the war on discrimination:

… Obama could announce that his election as President shows that the civil rights war is officially over and it’s time to reap the peace dividend: the federal government can dramatically cut back its persecutions of employers for race-related reasons.

Nothing the President could do with a stroke of his pen would do more to cut unemployment by making it legally safer to hire Americans than Obama announcing that, between now and the 50th anniversary of the Civil Rights Act in 2014, he will lay off most of Equal Employment Opportunity Commission bureaucrats and other federal racial inquisitors.

And the business climate would be immediately improved by Obama abolishing the EEOC’s innumerate “Four Fifths Rule.”

Sure, if Obama declared victory on civil rights, his base would howl. But, that’s pretty much how you accomplish something as President: by stabbing your supporters in the back.

Conversely, could a President Haley Barbour abolish the Four Fifths Rule in 2013? Of course not, he’d have to boost pointless enforcement to show he’s on the side of the angels.

But Obama actually has an opportunity here for statesmanship, which he’s, so far, failing utterly to seize, and public affairs discourse is so braindead over anything approaching race that nobody even notices his chance.

• Tags: Disparate Impact 
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Heather Mac Donald writes in City Journal about the Vulcan Society disparate impact lawsuit and the Fire Department of New York.
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For the last half dozen days, the punditry have been convulsed with debating — assuming the country got into a giant time machine and went a half century back into the past — would Senate candidate’s Rand Paul’s position on laws on the public accommodations portion of the 1964 Civil Rights Act be a good thing or not.
Few seem to have noticed that we are actually living in the 21st Century, when the  issues about discrimination law don’t revolve around disparate treatment but around disparate impact, a different legacy of civil rights law. Firefighter cases, as in today’s Supreme Court decision regarding the Chicago Fire Department, seem to provide the most public examples of what the current law is, which isn’t anything at all like what everybody has been talking about:

Supreme Court backs black applicants in firefighter discrimination suit
Chicago could be liable for as much as $100 million in damages in the case in which minority candidates passed a fire department exam but were not hired.

By David G. Savage, Tribune Washington Bureau
May 25, 2010

The Supreme Court reinstated a discrimination ruling Monday in favor of 6,000 black applicants for Chicago firefighting jobs in the 1990s, saying they had properly sued after it was clear that an entry-level test had a “disparate impact” based on race.

The ruling leaves public employers in a pickle if they are required by law to use tests for deciding who should be hired or promoted.

After two Supreme Court decisions with very different results in the last year, public employers can be sued for using tests that screen out most blacks and other minorities; they also can be sued by high-scoring white applicants if the test scores go unused.

The apparent conflict is built into the 1964 Civil Rights Act, the justices said Monday. “It is a problem for Congress, not one federal courts can fix,” Justice Antonin Scalia said.

He spoke for the court in a 9-0 ruling in a case that began in 1995 when 26,000 applicants took a written test to become city firefighters. Faced with the large number applicants for only several hundred jobs, the city decided it would only consider those who scored 89 or above.

In other words, this was one of the objective, blind-graded tests that the Daley Administration spent about $5 million dollars with outside consultants to develop for the fire and police departments in the mid-1990s to come up with a non-discriminatory way to hire and promote public safety employees.  The city decided to choose randomly among the highest scorers, rather than hire in rank order, which is obviously the best way to hire. Blacks who scored below 89 sued on the theory that the city should have hired randomly from among the huge numbers who scored 65 or higher.

This cut-off score excluded a high percentage of the minority applicants. After a trial in 2005, U.S. District Judge Joan Gottschall ruled the test had an illegal disparate impact because the city had not justified the use of the cut-off score. Experts had testified that applicants who scored in the 70s or 80s were shown to be capable of succeeding as firefighters.

Why not the best? Especially because the fire department’s future leaders will come from the entry level ranks.

The city did not appeal the disparate impact finding, but in Lewis vs. Chicago said the firefighters had waited too long to appeal. The high court disagreed.

Last year, however, the high court ruled that disappointed white firefighters were victims of discrimination by city officials in New Haven, Conn., which had dropped a promotion test after they learned no black candidates were among the top scorers. In a 5-4 ruling, the justices said this amounted to illegal racial bias against the white firefighters.

Nationwide, about 20 million employees work for city and state governments. And in many of these agencies, tests are used to hire and promote employees. That in turn has led to years of litigation on whether the tests are fair.

The decision dealt a potentially costly defeat to the city of Chicago. Earlier this year, a lawyer for black applicants estimated the total damages in the case could reach $100 million.

The ruling was welcomed by John Payton, president of the NAACP Legal Defense Fund, who argued the case. “This victory goes well beyond the immediate results in Chicago. It should ensure that no other fire department or employer uses a discriminatory test,” he said.

Though the recent court rulings have focused on city agencies, the civil rights provision involving disparate impact policies applies to all employers, private and public.

Chicago Mayor Richard M. Daley voiced some weariness with the years of litigation. “For decades we have tried to diversify the Chicago Fire Department. But at every turn, like most cities, we have been met with legal challenges from both sides.”

Since 2006, Daley said, the city has used a “pass-fail” approach so that all those who have passing scores are eligible for jobs.

In other words, to get around the EEOC’s four-fifths rules, Chicago has made the test so easy in 2006 that about 96% of white applicants pass the test and about 77% of black applicants, which is four-fifths as good, and that selects fire cadets randomly from those who pass, which means that all the test does is eliminate complete idiots.

When results for minorities were disappointing, the city established a cut-off score of 89 and hired randomly from the top 1,800 “well-qualified” candidates.
In 2005, a federal judge ruled that the city’s decision had the effect of perpetuating the predominantly white status quo, since 78 percent of those “well-qualified” candidates were white.

The clock normally stops ticking on civil rights cases 300 days after the employment action is taken. The first lawsuit was filed 430 days after the test results were announced.

But, African-American firefighters maintained — and the Supreme Court agreed — that a new act of discrimination occurred every time the scores were used to hire firefighters between May, 1996 and October, 2001. That’s when the city stopped using 89 as a cut-off point because the number of candidates had run out.
Plaintiffs’ attorney Matthew Piers said the decision means Chicago must hire roughly 120 African-American firefighters and adjust their pensions as if they had been on the job since 1995. Six-thousand  others will share roughly $45 million in damages.

“They have to immediately put them on. They can’t say, ‘We don’t have the money,’ ” Piers said.

If class members are too old to perform the physically demanding job, the damages could top $100 million, Piers said.

From the Chicago Tribune:

The Chicago case began in 1995 when 26,000 applicants took a written test to become a city firefighter. Faced with the large number applicants for only several hundred jobs, the city decided it would only consider those who scored 89 or above.

This cut-off score excluded a high percentage of the minority applicants.
And after a trial in 2005, U.S. District Judge Joan Gottschall ruled the test had an illegal “disparate impact” because the city had not justified the use of the cut-off score. Experts had testified that applicants who scored in the 70s or 80s were shown to be capable of succeeding as firefighters.

The city did not contest that conclusion, but it won a reversal from the U.S. 7th Circuit Court of Appeals on a procedural technicality. The appellate judges said the applicants had waited too long to sue. They had not sued during the year when the test results were released, but sued only after the scores were used to decide who would be hired.

Civil-rights lawyers appealed on behalf of Arthur Lewis and the other black applicants. They were joined by the Obama administration, which said the federal civil rights law forbids the “use” of discriminatory tests. And by that standard, the suit was filed on time.

The high court agreed Monday in Lewis v. Chicago. “Our charge is to give effect to the law Congress enacted,” Scalia said. The class of black applicants had sued at the time the test was used, and it resulted in their not being hired, he concluded.

The unanimous ruling stands in sharp contrast to the deep split within the Supreme Court last year over a case involving white firefighters from New Haven, Connecticut. They sued after they were denied promotions when the city scrapped a test because its impact on black applicants. They won a 5-4 ruling from the Supreme Court saying they were victims of illegal discrimination.

‘s case involved the opposite situation. Where New Haven had backed away from using its test results, Chicago pressed ahead and was later sued for using a test that had a discriminatory impact on blacks.

In Monday’s opinion, Scalia acknowledged this law creates “practical problems for employers” and can “produce puzzling results.” He concluded, however, “it is a problem for Congress, not one that federal courts can fix.”

But 21st Century reality will get infinitely less coverage than hypotheticals about Rand Paul’s views.

• Tags: Disparate Impact 
Steve Sailer
About Steve Sailer

Steve Sailer is a journalist, movie critic for Taki's Magazine, columnist, and founder of the Human Biodiversity discussion group for top scientists and public intellectuals.

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