Why the Firefighter Decision Is Good for Employment Lawyers

J.D.
Jun 30, 2009 12:45 PM CST

I agree, McLeod. But this isn’t startling to those of use who concluded long ago that liberals are deeply, deeply racist.

And yes, all the talking heads on the network news are big libs.

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Libertarian
Jul 1, 2009 5:19 AM CST

#3:

You’re example is a straw man argument (are you a fan of Obama’s speeches?)—the vast majority of these tests are objective and job related.  The only people don’t pass are those who (1) didn’t study or prepare; (2) are idiots; or (3) aren’t qualified to do the job they are doing.  There is no language barrier—unless you’re referring to ebonics or lack of education.  “Disparate results” is a crock.  Affirmative action is racism in more ways than one.

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F.U.
Jul 1, 2009 6:13 AM CST

What kind of qualifications does a firefighter really need that requires a written test?  Give me a break.  The test should be a physical one, based on lung capacity, upper-body strength, ability to swing an axe, rescue a kitten from a tree top, etc.

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F.U.
Jul 1, 2009 6:29 AM CST

No need to apologize, David.  I graduated from the NYU for my JD and LLM in Tax.  My class rank was #3 in JD and bottle of the barrel for my LLM b/c I was working full time.  In any case, some Asian guy graduated #1 in our JD class, and some guy from Bangladesh (who also happened to be a CPA) graduated #1 from the LLM program.  So I don’t know what you’re getting at, David.

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Jesse
Jul 1, 2009 6:53 AM CST

i’m a liberal and progressive by any measure, but perhaps a lawyer first, so i think it’s the facts that count, and i have great deference to juries. 

as such, i think the issue is whether the test was appropriate to the job. if so, then let the chips fall where they may, regardless of racial outcome.  if not, then throw it out.  if there’s room for reasonable minds to disagree, let a jury decide.

i haven’t read the decision, but my impression is that the dissent and lower courts threw out the case (i assume on summary judgment) as a matter of law.

i guess i should read the case.  did the supreme court reverse for further proceedings, or rule as a matter of law that throwing out the test was discriminatory to the white firefighters as a matter of law?  if the latter, then i disagree with that too.

by bar the bigger problem in federal discrimination law is the abuse of summary judgment law on behalf of employer defendants. as we see, this bias cuts both ways on the white vs. black axis.

race is almost beside the point.

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Joe Jefferis
Jul 1, 2009 6:57 AM CST

Here is a question from a multi-billion dollar corporation’s employment pre-screening questionnaire for consideration:
1.  If this position requires relocation, how do you feel about relocation?  Are there any relocation issues that will make moving difficult (i.e. are you part of a two income household)?

Seems to be very discriminatory since I have a stay at home wife and four small children.  Relocation is not detailed as a essential finction/responsibility, experience requirement,  skill competency, or travel requirement for the position.  An honest response to the question would disclose my potential health insurance covereage needs. In fact, the prospective employer has clearly stated that relocation expenses will not be paid for any candidates.

Is this is just a sign of the times?

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Fieger Law
Jul 1, 2009 7:10 AM CST

Joe Jefferis, judging by your comment, I’d feel confident in saying that you have a lot of intellectual horse power.  Very insightful.

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B. C.
Jul 1, 2009 7:25 AM CST

Tom: A majority of whites voted for McCain. He got 57% of white men, 53% of white women.  http://www.politico.com/news/stories/1108/15297.html Just goes to show - the less informed the opinion, the less likely to be a liberal opinion.

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AGB
Jul 1, 2009 7:26 AM CST

I have devined from reading more than one of these posts that this site is frequented primarily by 35 and under, big law associates who spend 60 to 70 hours a week toiling for some emotionally twisted partner.  This leaves young associate with little time to form meaningful relationships outside the firm.  This also does not allow young associate to get a picture of what life is like outside of the corporate law firm. Since the hiring practices of big law mandate that most of those employed meet specific academic ( i.e. type of Law school, background, ethnicity) stressed young associate spends much of his time with individuals much like himself.  Since he or she now clearly understands how the big law economic model makes partnership in the traditional sense a pipe dream he becomes angry and bitter, as he has followed the rules of the game only to be a victim of this “bait and switch” swindel.  He sees any “changing of the guard” ( read as the movement of non whites into prominent and powerful positions) as further proof of his own victimization and unfair treatment).  His reactions to these personal tragedies being chronicled daily on this web site.

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eljaypi
Jul 1, 2009 7:59 AM CST

The arguments about racial disparity, discrimination, equal opportunity, etc., ignore the fact that these firefighters were applying for command positions, when they could be responsible for immediate life and death decisions - how to attack a building fire, how to extracate critically injured victims, when to order firefighters into a hazmat situation.  If your loved one’s safety was at stake, would you not want the decision to be made by the best, brightest, and most experienced candidates, irrespective of race, color or gender?

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George Lenard
Jul 1, 2009 8:33 AM CST

Reading this thread is very disillusioning.  I would think it was some hack right-wing blog, not the leading professional journal for highly educated lawyers who ought to read judicial opinions and learn the underlying law in an area before publicly commenting on them (not to mention advising clients on them).

Disparate impact law isn’t about quotas or guaranteeing positions based on race, etc. It’s about ensuring that employment decisionmaking processes are objective and job-related, so that they do not unfairly interfere, in a way that discriminates based on a protected characteristic, with selection of the most qualified .

As far as it being racist or liberal to assume minorities score lower on certain types of tests, it is neither.  It is simply realistic.  The black achievement gap in schools is well-documented and problematic.  Of course it carries through into adult life.

If a job truly requires skills learned in a classroom that someone simply lacks, then basing employment decisions on their poor score on a test of such skills is fine (it’s just not fine for a society with public education and increasingly skilled job requirements that all people don’t develop the skills).

Here, the Court noted that the disparate impact would have been significantly moderated had the weighting of written and oral exams been altered. 

So while it is correct that these are important jobs involving public-safety decisionmaking at a much higher level than regular firefighter jobs, the question is whether the reading/writing/memorization/test-taking skills tested by written tests as opposed to oral tests were truly worth 60% of the score, given the disparate impact they caused, or whether a test with a more even racial impact would have been equally good or better at identifying those best qualified.

Go back and read Griggs v. Duke, in which the Court recognized disparate impact as a means of proving a violation.  It was about a company requiring a high school diploma or passing written tests for jobs one notch above shoveling coal at a power plant, jobs that clearly did not require the reading and writing skills these requirements implicated. It is that kind of misuse of supposedly objective and fair job requirements that disparate impact law prohibits—and IMHO the need for such prohibition will never be outgrown, at least not in my lifetime.

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Truth Teller
Jul 1, 2009 8:42 AM CST

Is it just me, or are Caucasian, Asians (oriental) and those from the Indian subcontinent the best performers on standardized tests?  And let’s not forget that all of Asia is pretty darn good at math.

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AndytheLawyer
Jul 1, 2009 9:01 AM CST

Answering #6—If you’re right, you should take the firefighter’s promotion test right now and you’ll pass it.  right?  After all, you know right now, without looking it up, things like (1) what to do if the fire’s on the 12th floor of a high-rise, your ladder extends only to the 8th floor and the entries are blocked; (2) what to do if you’re in a smoky room, surrounded by rooms in flames, with your oxygen tank running low; and (3) how to triage when there’s multiple trapped people in a burning building and only a handful of firefighters on scene.  Right?

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Morell E. Mullins
Jul 1, 2009 9:41 AM CST

I have seen, and tried to teach, many students who do well on multiple choice question exam formats, but whose judgment and ability to make decisions under pressure is questionable.  So, it is highly questionable to posit that doing well on an objective test translates into superior intelligence and judgment. Yeah, I know there is some correlation—if there were no correlation, there would be no market for objective-style tests. Although some of the folks posting here would not want to admit—because of their own prejudices and biases—that there is a long history of objective tests which are culturally biased (and sometimes unintentionally so),  biases do exist in any test. As for multiple choice tests, all I can say is that I seldom in my life encountered a decision-making problem where the person or situation presenting the problem set out four choices, one of which I had to select, in order to be “right.” Nope, can’t remember any judge or boss who asked me a multiple choice question.

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Diana
Jul 1, 2009 11:26 AM CST

A vew from the trenches:  I own a small employment firm that represents employees in the Chicago area. 

While the employers seem to be concentrating on the test issue, my clients are thrilled to see some common sense come out of the Supreme Court.  The employees agree, no one should be hired/promoted/fired just because of the color of their skin or their race.  It doesn’t matter if that skin color is white or black or green polka-dots.  Discrimination laws MUST work for all employees.

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Laurie Zeigler
Jul 1, 2009 1:27 PM CST

Those whose arguments focus on this case or the article by Weiss and are not in response to uninformed comments should be commended.  Wow.  I had hoped I might learn something about what our legal community thought about this article and the case.  I am not sure what this says about our ability to keep these posts from becoming personal attacks on political leanings (like those so often seen on so many non-legal posting sites).

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YeeeeeeeeeeeeeeeeeeeHAW!!!!!!!
Jul 1, 2009 4:11 PM CST

Look at this decision in the larger context….the incredible uncertainty for employers.

Why would ANYONE want to be an employer in this environment?  If I were an employer, I’d use all my ingenuity to find ways to substitute machinery for people, outsource, off-shore, and basically make my US-based employee footprint as small as possible.

And guess what, that’s exactly what employers have been doing.

Add to that the Obama tax hikes, the employer-mandate cradle-to-grave health insurance coverage, and even companies like Microsoft are saying “No more…you raise our taxes, we leave the US”. 

If this country wants to have low unemployment, it can’t lay all the costs of social engineering schemes on employers.

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B. McLeod
Jul 2, 2009 12:24 AM CST

The source of an any-color “achievement gap” in schools is the problem of the person(s) with the “achievement gap.”  Anyone who screwed off K-12 without learning to read or write needs to take the responsibility to clean up that cesspool on their own.

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tim
Jul 2, 2009 8:19 AM CST

#22 what’s a right wing hack - is that someone a flaming socalist left wing radical liberal who hates america doesn’t like?

comrade obama is the dictator of america - stop crying - ur left wing socalist liberal goons in DC can cram down any socalist/marxist/comunist program they wish

the liberal left has 100% control of this country - u can’t blame king george for anything anymore….it’s sink or swin with obama’s socalist anti-american one world agenda

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Sam
Jul 2, 2009 11:36 AM CST

This is a good decision. The problem with affirmative action is that it puts unqualified people in positions where they can cause a great deal of harm. For example, the minority (let’s text while we drive) train driver in LA who killed 30 people or the minority driver in the DC train crash where 7 where killed

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