Women and men of color have progressed in acquiring entry-level careers in administration, mainly at the federal level, but still, run behind in acquiring positions at the superior levels. But there is a question if the same can be said about police and fire departments which have had possibly the vilest history of employment discernment against women and men of different races (Wainwright, 2014).
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The City of New Haven had worked together with a business organization company to create a test to regulate who was more competent to be endorsed in its Fire Department. After evaluating the test, the City administered it to firefighters. Knowing that the rivalry would be intense and that training was crucial, Frank Ricci, a white firefighter, and Benjamin Vargas, a Hispanic coworker, studied hard for the exam; they as well went to a significant expense.
Getting the highest scores, they, six other white males, and one more Hispanic became qualified under usual rules for the preferment. At that point not only were the winning firefighters disregarded but also New Haven annulled the exam grades. Participants would have to revert to their starting blocks and take a more valid test, one presumably that produced winners reflecting the racial composition of the New Haven community, then 37% black.
New Haven, one might say, had moved the finish line to disqualify the winners. And it did so, as the Supreme Court later held, “because of race,” a conclusion that caused the Court to overturn the decision and order promotion of the plaintiffs. Ricci is especially important because of New Haven’s position that to produce black winners, it was free to ignore the results on a test it adopted and thereby subverted a principle of fundamental fairness or, in popular parlance, fair play.
However much we may all agree that racial disproportion is a serious and deep-rooted problem in America, New Haven’s action implies that racial balance is the axis on which our system of justice must turn. In this racialist view, Frank Ricci’s legal and moral claims are but centrifugal dust (Booth, Leigh & Varganova, 2011). Before the actual recommendations concerning the minimization of racial bias in fire departments, the author would like to review several important court cases that were of great importance for the Title VII disparate impact liability.
Griggs v. Duke Power Co.
African-American workers at the defendant’s generating plant taken this action, under Title VII of the Civil Rights Act, stimulating respondent’s necessity of a high school qualification or the passing of intelligence examinations as a condition of hiring or assignment to work at the plant. These necessities were not focused at or planned to measure the capability to learn to do a specific job or type of job (Griggs v. Duke Power Co., 1970).
While 703(a) of the Act makes it an illegal employment practice for an owner to bound, separate, or categorize workers to divest them of employment chances or adversely to distress their standing because of race, religion, sex, color, or national basis, 703(h) approves the use of any professionally created capability test, on condition that it is not designed or applied to segregate. The District Court instituted that the respondent’s previous plan of ethnic discrimination had finished and that Title VII, being forthcoming only, did not influence the preceding injustices.
The Court of Appeals reversed in part, rejecting the holding that residual discrimination arising from prior practices was insulated from corrective action, but agreed with the subordinate court that there was no screening of prejudiced determination in the implementation of the certificate and exam requirements. It detained that with no biased determination, usage of the requirements was allowed, and disallowed the allegation that an unequal number of African-Americans were called unqualified for promotion, transfer, or employment. The demands were seen as illegitimate except if proved to be job-related.
Firefighters Local Union No. 1784 v. Stotts
In 1984, the Court overturned a district court case, canceling the process of a seniority scheme, that would have helped many white expert firefighters compared to the newly hired African-Americans throughout dismissals caused by the budget cuts. In the previous agreement with blacks claiming prejudice in employment and promotion, the fire department had devoted itself to upcoming unbiased practices though not granting the total vanishing of the former bias.
Firefighters had not been aware of the discussion, and the arrangement itself had made no exact indication of the priority system or any other act that would have been harmful to the remaining workers. Thus, the district court’s modification of the consent decree was supported neither by a robust record of discrimination nor by the inclusion of the organization representing parties likely to be injured by the decree.
The Court decided that Title VII (Section 703(h)) of the Civil Rights Act protects authentic priority classifications for the genuine sufferers of past segregations. For most of them, it has been proposed that if specific members of the claimant confirmed that they have had been the real sufferers of the prejudiced practice, they might have been given decent seniority and prearranged their fair place on the seniority list. The remaining members of the plaintiff class were entitled to no special protection (Zelnick, 2013).
The obvious question left unrequited by Stotts was whether, given a universal or egregious outline of recognized discrimination by a union or a company, the courts could make forms of respite unobtainable to recompense acquitted ethnic or cultural inequalities. Such reprieve could encompass special treatment to minority cluster members who had not themselves grieved bias, or it could comprise employment quotas.
Berkman v. New York City Fire Department
It has been approximately thirty years from the moment when the first women were hired by the New York City Fire Department as firefighters. It took a landmark lawsuit, filed by Brenda Berkman, for the fire department to admit women to its ranks. But, by 2006, women composed less than 1% of the department’s firefighters (33 women out of 11,468 firefighters). The city’s fire department is once again under investigation for allegations of discrimination against women in its hiring practices (Riccucci & Naff, 2012). Before 1972, cities barred women as well as people of color from applying for jobs as firefighters.
That year, the Civil Rights Act of 1964 was extended to the public sector, and so the overt discrimination had to end. In 1978, women for the first time applied to New York City for jobs as firefighters. Although a large percentage of female applicants performed well on New York City’s firefighters written exam (389 out of 410 passed the test), not one passed the physical agility exam, which, at the admission of a city official, was the most arduous test ever given for anything and was substantially different from the last physical test administered in 1971.
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Brenda Berkman, one of the women who failed the agility test, filed a class-action suit against the city charging that the test unfairly discriminated against women. Upon finding that the test hurt women and was not job-related, a federal district court judge advocate told the city to devise a new test and also to reserve at least 45 positions for women. The revised agility test was administered, and 51 of the 72 women taking the exam passed.
Disparate Treatment Discussion
Disparate treatment is well-defined by the United States Supreme Court as segregation when the company pleasures some people not to the same extent as others because of their race, religious conviction, gender, or national basis (Egelko, 2014). Whether or not a proprietor can be found accountable, hinges on whether the distinctive attribute essentially inspired the employer’s choice. The prior recruitment/testing approaches might intrude upon Title VII because of the uncertainty of the law. It was proved by the Stotts case that the act does not fully resolve the problem and the issue of biased employment still exists to this day.
The author would not recommend following the same recruitment practices of the past such as word-of-mouth recruitment or essay-based exam questions in an old-fashioned manner. The decision to partially decline these types of recruitment practices is based on the fact that the majority of the previously employed firefighters were recruited based on their test results. The problem is that they knew the answers as they got them from their relatives of acquaintances who has been earlier taking the same test.
Solving the Problem
One of the possible solutions to the issue would be slightly editing the test every year to let go of the prejudiced practices of the past and embrace the path of innovation and justice towards everyone. According to the verdict that has been reached in the Berkman’s case, the author would also recommend treating female applicants slightly different in terms of the physical agility test than male ones, so that the recruits would be judged by their abilities and not obvious gender differences. In the present day, the decision also greatly depends on the race of the recruited. Even though the Civil Rights Act defends the minorities, they are still between the upper and the nether millstone of the incomplete and rather deficient so-called equality law.
Possible Recruitment Techniques and Campaign Design
If the author were asked to help design a recruitment campaign, he would operate the objective and critique thinking when finding a way to increase the diversity of the applicants. One of the specific recruitment techniques that might increase the diversity of the pool of applicants could be the distribution of the quota that relies, for example on the admission results from the last year or two. All of the places for minorities should be rightfully reserved. A reasonable percentage of fire department employees should be represented by women, African-Americans, and Hispanics.
One of the possible solutions could also be an exam, where the commission would not have the access to the personal data of the applicants, as it would expose their identity, gender, race, or sexual orientation to the members of the commission who are probably (but hopefully not) biased. The test would consist of questions that would assess the professionalism of the applicants and not their traits, or question their personal beliefs.
On the base of the exam results, the applicants would be admitted to the physical agility test that would be carried out under the watchful eye of another commission. In the case where the recruit feels like he or she is being discriminated against, they should have the instant ability to file a complaint to the higher fire department authorities. They should also be in the full right to address the issue in court in the case of overt unlawful discrimination.
If the author were to design a recruitment campaign, the campaign would not throw discredit upon any applicant and judge by their proficiency and skill rather than their views, unless their views would contravene the principles of the firefighter community. It should be proclaimed for all to hear that the new recruitment design is neither a positive or negative discrimination, and the recruitment technique does not give the privilege of being employed based on various prejudices to anyone.
Defending the Testing Results
To be able to defend the recruitment/testing even if minorities fail to attain a passing score that is at least 80% of non-minority applicants, the author would carefully study the results of the previous recruitment campaigns and the most significant court cases on the issue. To foresee any possible discrimination, it is necessary to prepare all those wishing to become firefighters to the exam in advance. One of the ways to improve the “firefighter literacy” of those who want to apply for the position would be the holding of special courses aimed at teaching the future recruits some basic firefighter knowledge.
There is a possibility that regardless of the author’s hard work to evade adverse impact the valuation procedures might cause an outcome in which minorities attained less than 80% of the passing percentage of non-minorities. In this case, the author would suggest carefully studying the case before filing a lawsuit challenging the results of the examination. The fact of discrimination should be not an assumption but an objective statement that would flawlessly expose the gaps in the admission committee if there were any. The author would also recommend passing several minor amendments emphasizing on the criminal punishment for the racism of any kind so that the Civil Rights Act would become a complete and powerful instrument helping to manage the employment issues and employer-employee relations.
This memorandum dwelled on the most widespread issues of the fire department employment and provided an insight into the most valuable cases that put the minorities on the map and helped them win their place under the sun. The memorandum explains the phenomenon of disparate treatment and why the previous recruitment/testing methods might have violated Title VII. The memorandum has also provided the readers with information concerning the possible specific recruitment techniques that might increase the diversity of the pool of applicants.
The paper has also discussed the advice you could give to the applicants if they wanted to defend their testing. The problem cannot be solved easily, but the steps towards breaking the barriers of biased fire department employment techniques can be already taken.
Booth, A. L., Leigh, A., & Varganova, E. (2011). Does Ethnic Discrimination Vary Across Minority Groups? Evidence from a Field Experiment. Oxford Bulletin of Economics and Statistics, 74(4), 547-573. Web.
Egelko, B. (2014). Black Oakland Firefighter’s Discrimination Suit Reinstated. Web.
Griggs v. Duke Power Co., 401 U.S. 424 (1970).
Riccucci, N., & Naff, K. C. (2012). Personnel Management in Government: Politics and Process. Boca Raton, FL: Auerbach.
Wainwright, J. S. (2014). Racial Discrimination and Minority Business Enterprise: Evidence from the 1990 Census. New York, NY: Garland Pub.
Zelnick, R. (2013). Swing Dance: Justice O’Connor and the Michigan Muddle. Stanford, CA: Hoover Institution Press, Stanford University.