Supreme Court finds bias against white firefighters in tossing tests in New Haven
by Star staff and wire reports
Jun 30, 2009 | 558 views | 2 2 comments | 3 3 recommendations | email to a friend | print
WASHINGTON — The Supreme Court warned employers Monday against seeking a "preferred racial balance" in their work force, ruling that white firefighters who earned top scores on a test were the victims of illegal discrimination when New Haven, Conn., tossed out the results and denied them a promotion.

The 5-4 decision in Ricci v. DeStefano could have a broad impact on hiring and promotion policies, particularly in public agencies that are required by law to use civil-service-type tests.

The high court's ruling does not appear to make a sweeping change in the law. The justices did not say, for example, that it is unconstitutional for public employers to ever consider the racial makeup of their work force. And it does not strike down the part of the Civil Rights Act that says employers should avoid job standards and tests that have a "disparate impact" on minorities.

Oxford fire Chief Gary Sparks said the ruling reinforces the hiring of a person best equipped for the job.

"I think they made the right decision," he said. "I think we need to hire the best person and promote the best person available, regardless of age, sex, race or anything."

He said the Calhoun County Civil Service Board determines the hiring process for fire departments in the county.

A test is administered to applicants for promotion, and the names of those with the top scores are provided to the chief and the city's mayor, Sparks said. In Oxford the top six make up the promotion pool, whereas in Anniston the top three are provided, he said.

The mayor and fire chief then conduct interviews based on the names provided.

"(Promotion) is not strictly based on a grade," Sparks said. "So if you're good at taking tests but haven't got common sense enough to get out of the rain, it's going to come into play (in the interview)."

Currently, there are no minority firefighters in Oxford, but Sparks said that was because none tested for the job when the department made the transition from volunteer to a full-time department two years ago.

Attempts to contact the county's Civil Service Board Monday were unsuccessful.

Since the 1970s, the court had said employers should not use hiring or promotional tests that have a "disparate impact" on minorities. But on Monday, the court said employers cannot discriminate against white job seekers so as to open more opportunities to blacks and Latinos.

"No individual should face workplace discrimination based on race," said Justice Anthony M. Kennedy. Once an employer has given a test that is fair and geared to the job, it is "not entitled to disregard (it) based solely on the racial disparity in the results," he added.

The ruling overturns a decision of Supreme Court nominee Sonia Sotomayor who, along with two other judges on the U.S. Court of Appeals, rejected the claims of the white firefighters. She relied on the court's past decisions.

For decades, the court has been closely split over whether race can or should play a role in who gets hired or promoted. In the Civil Rights Act of 1964, Congress said employers may not discriminate against anyone because of race, gender or ethnicity. In the 1970s, however, the court said employers sometimes may give an edge to minorities to make up for a history of discrimination.

Since then, this conflict has played out in many cities in long-running legal battles involving the fire and police departments. On the one side, blacks and Latinos have sued and claimed the paper-and-pencil tests unfairly discriminate against them. On the other side whites have sued when city officials fail to strictly follow the test results in awarding jobs.

More than two decades ago, the Anniston Fire Department dealt with issues similar to the New Haven case regarding potential discrimination in hiring and promotion through affirmative action, said Sparks, who formerly worked in the Anniston department and was assistant fire chief there.

"When I first went to work at Anniston, there were two separate hiring lists — a black and a white list," said Sparks, who joined the Anniston department in 1987.

The lists were used as an affirmative action program when hiring and promoting firefighters, Sparks said.

The top scorers among blacks and whites were divided into the lists by race. Providing two lists ensured that black applicants who might not score as high as white applicants were still considered for the job, he said.

Other nearby cities faced lawsuits from white firefighters claiming reverse discrimination.

In 1989, the Supreme Court ruled white firefighters in Birmingham could challenge the city's affirmative action policies. Citing the Supreme Court's decision, an Atlanta court of appeals in 1990 ruled white firefighters in Gadsden had been adversely affected by the city's hiring and promotion practices.

"Municipal lawyers often say that every time a new test is adopted, it generates not just one lawsuit, but two," said Andrew Pincus, a Washington lawyer who backed New Haven.

When New Haven backed away from using the results from its 2003 promotional test, firefighter Frank Ricci and 19 others sued Mayor John DeStefano for racial discrimination.

Kennedy said New Haven's officials were wrong to rely "on raw racial statistics" as reason for setting aside the test. City officials had no "strong basis" for believing the test was flawed and unfair, and therefore they had no legal basis for setting aside the results, he said. Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. agreed.

In her dissent, Justice Ruth Bader Ginsburg faulted the court's majority for ignoring the history of discrimination against blacks and Latinos in the New Haven Fire Department. In the early 1970s, these minorities made up nearly half of the city's population, she said, yet just one of 107 fire officers was black. Justices John Paul Stevens, Stephen G. Breyer and David Souter joined her dissent. It was the last day on the court for Souter, whose colleagues wished him well on his retirement.

David G. Savage of McClatchy-Tribune Information Services and Star Staff Writer Rebecca Walker contributed to this report.
comments (2)
« cailleac_bhuer@msn.com wrote on Tuesday, Jun 30 at 10:54 PM »
It is about time someone figured out we need to be judged worthy of a job/career based on our ability and appitude in the work duties; not on our race, creed or color.
« nonhyphenatedAmerica wrote on Tuesday, Jun 30 at 09:23 PM »
Obama's choice for the supreme court in Sotomayor was disturbing for those who know her. Now ,with this case coming to light ,Obama has no choice but to cancel his own nomination unless he believes the same as Sotomayor, that disrimination is "ok" against non-minorities.