Ruling on firefighters likely won’t impact HFD

As with many U.S. Supreme Court rulings, the one issued last week in a reverse discrimination case brought by a group of Connecticut firefighters produced a slew of headlines but little clarity. At first it seemed that a major victory had been achieved by the white employees of the New Haven Fire Department. The high court said it was wrong for their performances on a promotion test to be tossed out by city officials who were concerned that the test wasn’t fair, because none of their African-American firefighters were eligible for promotions after taking it.

Conservatives embraced the ruling. Liberals decried it. But lawyers who specialize in employment law are far from convinced there will be major impact anywhere. That includes the city of Houston, which is being sued by a handful of black firefighters who are complaining about the same sort of test.

“What the court did not like was that the city had set the rules and then, in the court’s view, changed them willy-nilly,” said longtime Houston employment attorney Joe Ahmad. “We don’t know what it really means. It’s one slap at affirmative action. They are kind of chiseling away at it. That much is clear.”

The chisel in this case seems to be a small one. For non-lawyers, the high court’s decision in Ricci v. DeStefano is likely to appear procedural. Even in victory it’s hard to know what the New Haven firefighters have won. Likely it is just an opportunity to have another day in court to prove that the test they took should stand. Also entering the fray now will be black New Haven firefighters, who find themselves in the interesting position of suing city officials who used to agree with them.

The attorney for those black firefighters, Dennis Thompson, also represents the seven Houston firefighters who are suing the city. He said the Supreme Court’s decision will have no effect on the local case, which was filed in August in federal court here.

The reason is that the city of Houston took no steps to invalidate or modify the test results. That challenge came from affected firefighters who claim the “disparate impact” of the test on minorities place the city in violation of federal civil rights law. The high court did not address that provision of the law, which has long been used to attack bias in hiring and promotion practices.

“It may be a sweeping change, but it may be a sweeping change with a whisk broom,” Thompson said of the ruling. “It does not alter disparate impact.”

In New Haven, officials acted before minority firefighters formally challenged the test — “voluntary compliance” in the parlance of plaintiff lawyers, who fear the Ricci ruling encourages cities to do nothing if test results appear skewed, other than wait to be sued.

The court said an employer must have a “solid basis in evidence” to justify setting aside a test, but it did not define what that meant.

“Once you’ve administered a test, an employer is going to have to show more than a good-faith belief (that it is discriminatory) in order to throw it out and start over,” said Lowell Denton, a private lawyer in San Antonio who is representing the city of Houston in the current discrimination lawsuit.
The standardized test

Denton, like Thompson, does not think the Ricci decision will come to bear on the complaint brought by Dwight Bazile and six black colleagues in the Houston Fire Department. The lawyers do disagree on the merits of the suit. Thompson is a strong advocate for doing away with written tests. He says that correctly answering multiple-choice questions does little to show whether someone is a good firefighter and deserves to move up in the ranks.

“It’s like giving someone a written test and then saying, ‘OK, now you’re a pilot,’?” said Thompson, pointing to studies that have explored why blacks fare poorer in standardized tests than other races and ethnicities. “Given three months to study, I could probably perform well on one of these tests, and I’ve never been on a firetruck.”

In a perfect world, Denton said, the argument makes sense, but in the world of government employment, where civil service rules were implemented to reduce patronage and cronyism, “subjectivity” is a dirty word.

Private employers rarely face this type of lawsuit, but Denton says government agencies have to walk an endless tightrope.

“Most of my clients feel that it’s an impossible line. How in world can we get it right?” Denton said. “We have a civil service structure that gives us very little flexibility. But the city of Houston has been walking it and will continue to walk it. I think it’s doing a pretty good job.”

Thompson disagrees, saying the numbers will bear out the inadequacy of written tests to achieve racially balanced promotions.

The city has been sued numerous times over the years over allegations of discriminatory hiring and promotion practices, including a 2008 complaint brought by female firefighters.

Some of those complaining have been minorities and some have been whites. The highest-profile suit involving minority hiring involved the Houston Police Department. It lasted 18 years before the city settled in 1993 with a promise to promote 106 black and Hispanic officers.

By MIKE TOLSON
Houston Chonicle