Comments on: Supreme Court Firefighter Decision Could Alter Civil Rights Employment Law

By: suspended doctors

suspended doctors — Sat, 22 Aug 2009 07:01:09 +0000

suspended doctors…

The members of the DSG have extensive personal experience of suspension, exclusion, NHS Trust and GMC investigations….

By: Supreme Court Says “Strong Basis” Needed In Disparate Impact Cases : ERE.net

Mon, 29 Jun 2009 19:20:38 +0000

[...] decision came in a case from New Haven, Conn. brought by a group of white and Hispanic firefighters who scored high enough on a promotional exam to have been appointed to one of several captain and [...]

By: Supreme Court Makes Age Discrimination Harder To Prove : ERE.net

Supreme Court Makes Age Discrimination Harder To Prove : ERE.net — Fri, 19 Jun 2009 18:10:23 +0000

[...] that case (story here), not one black firefighter scored high enough to be considered for promotion, while 18 of the top [...]

By: David Arnold

David Arnold — Thu, 04 Jun 2009 23:49:19 +0000

It’s good to see the above post concurs that the “written test” is not the only hiring practice at issue as implied by the article. Also, constituitional issues don’t lurk in every federal case as indicated in the post–many focus exclusively on federal law (e.g., Title VII, anti trust)–this case does not. Finally, I’m not quite sure why the writer felt compelled to note that I’m General Counsel for Wonderlic, Inc.–for disclosure sake I’m also General Counsel for the Association of Test Publishers, and have previously worked for an an international airline, a large municipality and conducted work for many federal government agencies–although I’m not sure of the relevancy thereof regarding this post? That aside, my legal opinion on the impact and issues of the case are still valid.

David Arnold, Ph.D., J.D.

By: John Zappe

John Zappe — Thu, 04 Jun 2009 21:54:55 +0000

Dr. Arnold, general counsel for test publisher Wonderlic, is certainly correct in noting that an oral exam was part of the testing procedure in the New Haven firefighter case. However, the written test accounted for 60 percent of the total. The passing score for both parts combined was 70.

Thus even a perfect score on the oral portion was insufficient. And passing the test was not the same as qualifying for a promotion, as only the top three scorers were eligible to be considered for each spot.

Dr. Arnold also questions the lack of discussion of 14th Amendment Equal Protection issues. Constitutional issues lurk in the background of every federal case and this is certainly no exception.

But there is no indication from the principal briefs or the oral argument that the Supreme Court is struggling with the constitutionality of Title VII.

In the trial court decision, Judge Arterton dismissed the firefighters’ Equal Protection argument in 3 pages of her 48 page decision. Her reasoning, in a nutshell, was that since no one got promoted, no one group was discriminated against.

We’re very likely to see some discussion of that thinking, given Justice Scalia’s comments, which I quote in the article. But unless the Court throws judicial restraint to the wind, it can decide this case on narrower grounds.

By: Jim Sullivan

Jim Sullivan — Thu, 04 Jun 2009 19:09:24 +0000

I believe it’s time that we remember that “Equal Opportunity” is that it allows everyone to compete on level ground but it does NOT guarantee that everyone will have equal success.

I would venture a guess that everyone that took these tests knew the components of the tests – did some just study harder?

Personally, I would like my firefighters to know what the heck they are doing, and if they want a leadership positon then they should know it better than everyone else.

By: Joshua Letourneau

Joshua Letourneau — Thu, 04 Jun 2009 16:48:00 +0000

David, agreed – I was surprised as well to not see the paramount issue of the Equal Protection Clause brought up.

After all, didn’t Plessy vs. Ferguson substantiate the U.S. Constitution’s stance that “All Men are Created Equal”? Oh yeah, it didn’t – I must be thinking of another case :)

By: David Arnold

David Arnold — Thu, 04 Jun 2009 16:28:16 +0000

This article provides a reasonable discussion of Title VII issues to be addressed in Ricci v. DeStanfo. However, it does not address the constituional issue raised (Equal Protection) and incorrectly implies that the exclusive focus of the litigation is a written test. In reality, the hiring tools at issue are a written job knowledge examination and an ORAL EVALUATION of the ability to command others in emergency situations. Moreover, the Supreme Court’s opinion could impact an employer’s approach to the use of hiring tools well beyond written tests–the decision may impact the use of the many hiring tools that frequently exhibit disparate impact (e.g., criminal background checks, credit checks, educational requirements, physical requirements, drug testing).

David Arnold, Ph.D., J.D.

By: Sean Kent

Sean Kent — Thu, 04 Jun 2009 16:21:16 +0000

Very cogent summary and analysis of the facts, John. Thank you for following up on what will surely be a seminal case affecting employment testing in the US.