Diversity Is Strength!!! Keep Title VII and Constitutional Protections Alive for Professional Black Firefighters/First Responders!
Press Conference New Haven Firebirds - New Haven , CT March 25. 2009
Case Summary ·
·
A case currently pending before the U.S. Supreme Court,
Ricci v. DeStefano, et. al., No. 07-1428; 08-328, is
seeking to seriously undermine minority claims for
discrimination in testing (Title VII disparate impact) and
Equal Protection under the United States Constitution.
The “reverse-discrimination” suit was brought by 19 white
firefighters and 1 Hispanic firefighter (known as the “New
Haven 20). The firefighters allege that they were
discriminated against in denial of promotion, and complain
that the City violated the Fourteenth Amendment of the
Constitution by creating “racial categories” favoring
African-Americans on two promotional examinations (Fire
Lieutenant and Captain).
·
The city had chosen (after holding four civil service public
hearings) not to certify both exams because the results were
slanted highly in favor of promotion of whites and the city
believed any promotions would violate Title VII (disparate
impact). The tests were never validated and the plaintiffs
(the “New Haven 20”) have introduced virtually no evidence
that the tests were valid.
Both lower courts sided with the city and found there was no
“discrimination.” But the Supreme Court has agreed to hear
the case, possibly for the purpose of making a sweeping
pronouncement.
The Lower Federal Court Proceedings
Congress and the White House are currently controlled by
Democrats, so a court dominated by justices who lean to the
right could emerge as the last bastion of conservatism, says
Stanford University law professor Jeffrey Fisher, who argues
regularly before the court. "Will the justices say, 'We
should heed the winds of political change?' " he says, "Or
will they say, 'It's even more important to protect certain
conservative principles that are not popular right now?' ".
The Supreme Court is deeply divided on
government policies that consider an individual's race. In
the firefighter case, city officials in New Haven, Conn.,
offered a written civil service test to firefighters seeking
promotions. Of the 118 applicants for promotion to captain
or lieutenant, 50 were racial minorities. No blacks and only
two Hispanic applicants qualified for promotions based on
their scores.
City officials said they feared that, if the results were
certified, they would hurt black firefighters and the city
would face bias lawsuits.
Eighteen candidates (17 white and one Hispanic)
sued under the Constitution's equal protection clause and
Title VII of the Civil Rights Act. They said the results
should not have been discarded. Lower courts sided with the
City of New Haven and its decision to throw out the test.
____________________________________________________________
Other Second Circuit Court of Appeals Proceedings
Additional Information
What is At Stake
The Supreme Court hearing this case could have a
significant impact to the future blacks in the fire
service. Should the Supreme Court reverse this decision, it
could have deleterious effect on blacks being able to serve
their country as fire fighters and officers in their
respective cities. Depending on how far the Supreme Court’s
decision goes, a possible outcome could be that cities would
return to the days of using selection methods that
inherently favor whites, in effect authorizing the defacto
white affirmative action program that has so dominated the
fire service for as long as it has been in existence.
CAFFA or Concerned American Fire Fighters
Association, which used to be Caucasian American Fire
Fighters Association, has been advocating for a written only
exam for entry and promotions for over 12 years – a testing
format that inherently favors whites due to the test
structure, not the content or capabilities of those being
tested. In fact, studies in industrial psychology have
demonstrated that written job knowledge tests have little
value in predicting who will perform well in any position,
yet they also have a demonstrated adverse impact on black
candidates. In recognition of the serious shortcomings of
using written tests for safety force testing, many
jurisdictions have either minimized their use to threshold
requirements as pass/fail or eliminated them altogether.
Should this decision be reversed, cities will
undoubtedly go to this highly questionable format of testing
as a matter of economic expedience, being able to avoid the
burdens of using validated testing devices that are more
likely to select the most qualified candidates and instead
replacing them with those that can memorize or recognize the
answers placed before them. Moreover, this will result in a
fire service that does not reflect the communities being
served, especially since so many cities do not or cannot
have residency requirements, such as New Haven. This
weakens not only the fire service, but weakens capabilities
of our fire services to protect us all.
Since 1978, all employee testing processes has
been performed under UNIFORM GUIDELINES ON EMPLOYEE
SELECTION PROCEDURES (the “UGES”) which addresses
employee selection procedures and methods. The Uniform
Guidelines are regulations issued by the EEOC that
incorporate a single set of principles which are designed to
assist employers, labor organizations, employment agencies,
and licensing and certification boards to comply with
requirements of Federal law prohibiting employment practices
which discriminate on the grounds of race, color, religion,
sex, and national origin. They are designed to provide a
framework for determining the proper use of tests and other
selection procedures. They have been adopted by the United
States Department of Labor, the Office of Federal Contract
Compliance and virtually every government agency.
The UGES were used as the yardstick against
which the fire promotional tests that were successfully
challenged recently in Cleveland and Akron, Ohio, and were
the basis of New Haven throwing out their promotional exams.
In fact, the UGES are the basis of virtually every challenge
to discriminatory employee selection methods since 1978. If
this decision is reversed, it is possible that every city
that has consent decree will be challenged based on the
reversal of the Supreme Court decision.
What is needed in information and support, first
thing we need to do as an International is to consult an
attorney to file an Amicus Brief (Friend of the Court) to
the Supreme Court. This has already been done. The law
firm of Thompson & Bishop, located in Akron, Ohio has agreed
to draft an amicus brief on behalf of the IABPFF. The brief
will be filed March 25, 2009. These are experienced lawyers
who specialize in fire service employee testing cases across
the country.
In order to help with this effort, we need data
from other cities. Mostly, demographic by race and gender
information for the fire departments, including attrition
projections by race and gender for the next 5 years. This
can be extrapolated from seniority lists. This information
can be sent directly to Thompson & Bishop. Contact
information is as follows:
Attorneys: Dennis Thompson
Christy Bishop
Address: 2719
Manchester Road
Akron, Ohio 44319
Telephone: 330-753-6874
Facsimile: 330-753-7082
e-mail:
tmpsnlaw@sbcglobal.net
website: http://www.employeerightslawyers.com/
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We need to contact other organizations to make
them aware of this action and ask that they follow suit by
filing amicus briefs. Several have already agreed to join
in the IABPFF brief, including some fire chiefs from fire
departments.
We need to contact our Legislatures to make them
aware of this monumental hearing and the negative impact
that it will have on people of color in America. There
isn’t time to discuss or take under advisement or to think
about what we can do. Time is of the essence and this needs
to be done sooner rather than later. Should we set idle and
leave this to chance then you can point to exactly the date
in time when the IABPFF was killed.
There is no guarantee should we do these things
that the Supreme Court will rule in the favor of the City of
New Haven, but doing nothing is not an option.
This case will likely have a strong if not debilitating
impact on municipal fire testing and the limits of city
control over examinations, as well as possibly
“reverse-discrimination” suits.
The white firefighters want the Court to hold that any
race-based remedies for African-American workers,
particularly fire and police, are swept out of existence.
This includes settlements, consent decrees, and possibly
entire right of action under Title VII or the U.S.
Constitution.
Because of the increasing influx of “reverse discrimination”
complaints and expiration of many hiring and promotional
consent decrees, fewer African-Americans are represented in
city fire departments around the country, particularly at
the command level. Many of those at command level – who
fought so hard to get there – will soon be retiring,
restoring fire departments’ composition as largely
Caucasian.
·
This is not a “touchy-feely diversity issue;” it is an
essential national security issue. The military learned
long ago and has repeatedly gone on record stating that
diversity at all ranks is the key to an effective fighting
force. Firefighters are our first responders. They are an
integral part of our national response forces, so says the
United States government. This is reflected by their
inclusion in the Department of Homeland Security. We simply
cannot afford institutional or systemic discrimination
anymore; our safety depends upon it being eradicated.
We are Emergency First Responders, and keeping diversity in
all ranks is a compelling state interest to our National
Security.
What you can do:
· Our
brief is due for printing and binding by March 20, 2009.
Take affirmative steps.
We have gathered support of other fire chiefs from some
cities and the Black Chief Officers Association. But
we need further support! If you know any high-ranking
official, or minority group that may join the cause, let
us know!
We need information and data.
What do the fire departments in various cities look like
by race and gender? What will they look like in 5
years, 10 years?
We appeal to Sororities, Fraternities, Churches, Civic,
Community Organizations and Women Advocacy Groups, etc., to
lend your name and support to this Amicus Brief.
Support us today with
a
tax-deductable donation!
Issue: Whether municipalities may decline to certify
results of an exam that would make disproportionately
more white applicants eligible for promotion than
minority applicants, due to fears that certifying the
results would lead to charges of racial discrimination.
Opinion below
(2nd Circuit)
Petition for certiorari
(07-1428)
Supplemental brief of
petitioners
(07-1428)
Petition for certiorari
(08-328)
Brief amici curiae of Center
for Individual Rights, et al.
(in support of petitioners) (08-328)
Merit briefs
Amicus Briefs
Brief for National Association
of Police Organizations in Support of Petitioner
Brief for Mountain States
Legal Foundation in Support of Petitioner
Brief for the Claremont
Institute Center for Constitutional Jurisprudence in
Support of Petitioner
Brief for Bridgeport
Firefighters for Merit Employment in Support of
Petitioner
Brief for the Eagle Forum
Education and Legal Defense Fund in Support of
Petitioner
Brief for the Anti-Defamation
League in Support of Neither Party
Brief for the United States of
America in Support of Vacatur and Remand
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