Running head: THE NEW HAVEN 20: AFFIRMATIVE ACTION

The New Haven 20: Affirmative Action and Discrimination In The Workplace Joshua R. Doty TUI University Business Ethics / ETH501 December 23, 2011 Dr. Loar

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The New Haven 20: Affirmative Action and Discrimination In The Workplace When the results of a 2003 promotion test were released, few, if any, members of the New Haven Fire Department or New Havens city leaders were prepared for the heated debate and imminent battle that would follow. None can doubt that New Havens civil service commission was caught in a difficult position that it never expected to encounter. The city had taken reasonable efforts to hire an outside firm, specializing in designing fair tests, to help identify the best candidates for vacant captain and lieutenant positions. Unfortunately, the citys leaders did not act reasonably in rejecting the test results based on the lack of minority representation. This paper will discuss the ethical issues surrounding the controversy including the implications for a diverse workplace, demographic representation as well as the utilitarian implications of certifying or not certifying the promotion test results. In discussing the ethics of the case, the paper will attempt not to discuss the legal details or arguments of the discrimination case filed by the New Haven 20 nor anti-discrimination in general from a legal standpoint. Between A Rock and A Hard Place The New Haven Civil Service Commission was faced with a tough decision. When the results of the 2003 test came back and showed that no black firefighters were eligible to even be considered for promotion under the citys rule of three mandate, they knew they would come under fire from minority advocate groups. The city had taken steps to ensure they singled out the best-qualified candidates for promotion, regardless of race, creed, color, religion or any other protected class that should not be a factor in hiring. None can argue that there was any intent to discriminate and that, in fact, the city was doing the right thing by hiring IO Solutions Inc. to design a neutral test. However, when the test results revealed a significant disparity between the test results of whites and other skin colors, particularly blacks, it seemed to meet the definition of

THE NEW HAVEN 20: AFFIRMATIVE ACTION a disparate impact claim (Ricci v. DeStefano, 2009). Disparate impact is the idea that a particular employment practice is facially neutral but actually has an unjustified adverse impact on a protected class of people. The commissions members thus found themselves between a rock and a hard place. Though there was never any actual evidence of discrimination against black applicants, they were certain to face a discrimination suit if they certified the results. Instead of outright rejecting the results, the commissions vote ended in a tie, which ultimately equaled rejection since certification required a majority vote. As a result, city officials engaged

in disparate treatment against the white firefighters who performed well. An employer commits disparate treatment by singling out a person or group based on race, gender, or any other protected status. Seemingly, the city considered only the backlash it would face if it appeared to ignore the potential disparate impact. Ultimately, the city failed to do diligence to the situation by actually determining if any real discrimination had taken place or if the results simply revealed who had studied harder for the tests. Instead, the citys leaders caved to pressure from outside forces, who led them to believe that the consequences of certifying the tests results would be too great (Ricci v. DeStefano, 2009). Diversity in the Workplace At the core of this issue, as with any Affirmative Action case, are the implications for a diverse workplace. Diversity yields a mix of ideas, different perspectives and solutions to problem solving. However, diversity should not be the goal of any business, but rather, a tool to achieving it real objectives. In the case of the New Haven Fire Department, diversity helps it to be viewed as representative of the community it serves. During the 2000 Census, just three years before the tests were administered, New Haven enjoyed a relatively evenly diverse population with 37% whites, 21% Hispanics, 37% blacks and 5% other races (US Census Bureau, 2000).

THE NEW HAVEN 20: AFFIRMATIVE ACTION Protecting the community is the departments goal and diversity is one tool it can use to show a link between the community and the department (New Haven, 2010). Maintaining the publics

trust is important to the departments effectiveness and diversity is beneficial in this area as well. Humans are naturally attracted to others similar to themselves (Syed & Kramar, 2009). An all white or overwhelmingly white department and leadership might be detrimental to the departments image as a reflection of the community at large and lead to resentment by citizens who think that the department is discriminating against or favoring particular groups of the community. A diverse department enables the department to relate well to a wider segment of society and promote a higher sense of pride in community. Diversity also aids the department in recruitment, demonstrating that everyone has an equal opportunity to join the department. The image might also yield a larger pool of applicants for the department, increasing competition and potential quality of recruits. Clearly, a diverse fire department has many benefits for the city of New Haven, but is it more important than a qualified department? Diversity Vs. Qualifications In deciding to reject the results of a fair qualification test merely because they did not yield the expected diversity in its results, it infringed upon the rights of those to worked hard to earn a promotion to the next higher grade. The necessity to hire qualified firefighters is obvious. Assuming the promotion exams were race neutral (there was no evidence to the contrary), the city faced a difficult ethical dilemma of deciding whether race should reign supreme when the test results did not yield a diverse group of candidates (Winrow & Schieber, 2009). The city chose a path of taking rights away from one group as a means of leveling the playing field, but it does not necessarily create equality. In its effort to promote equality for all groups, the city has a duty not to disregard the rights of any group. The city could have more fairly leveled the playing

THE NEW HAVEN 20: AFFIRMATIVE ACTION field by making the test preparation guides equally available to everyone taking the test. Although all the test questions came directly from open source manuals freely available to all firefighters, one might argue the city had a duty to provide the study guides to everyone. The knowledge gained would improve the qualifications of all participants and thus the level of

protection they provide the community aiding the department in its stated mission. As it was, the city allowed the testing company to make study materials available as a means of creating additional revenue. In doing so, the city put a price on promotion as a means of gaining an advantage dividing the applicants who chose to spend money on the study guides from those who did not. While the costs for the study guides was not insignificant, it could have deterred many from purchasing them, opting instead to study the open source manuals which were freely available. While there is no evidence to suggest that the black firefighters were unable to afford the study guides, many of the white firefighters testified they paid for and used the study guides (Ricci v. DeStefano, 2009). If none of the black firefighters purchased the study guides and many of the white firefighters did, it might easily explain the difference in test results. When faced with a choice between promoting the most diverse firefighters or the most qualified firefighters, how can the city defend its decision to place diversity over qualifications? Essentially, it cannot. In this case, achieving a diverse leadership over a most qualified workforce is not a legitimate goal. If the study materials had been equally available to all applicants, the tests results may have yielded greater equality among the applicants. The city could have then inserted diversity into the department leadership by choosing the more diverse candidate from each group of three more or less equal candidates. Applying diversity in this manner does so without sacrificing job qualifications. Ethical Buzz Words

THE NEW HAVEN 20: AFFIRMATIVE ACTION A fair discussion of the case could not take place without discussing the utilitarian and

deontological implications of the citys decision. The citys leaders were elected or appointed to their positions under the expectation they would act in the communitys best interests; doing the greatest good for the people. As previously stated, there are several goods the city and the fire department should provide. The first good is providing the best possible emergency services. The second good is doing all that is possible to ensure the fire department continues to do so into the future by hiring and promoting the best qualified fire fighters. These duties correspond to every tax-paying citizens rights and expectations. The city also needed to consider the greatest good for itself and the fire department. The city must maintain the publics trust by governing justly and ethically. Governing justly and ethically is the greatest good for the people and for it self. The city owes to the department the tools and personnel necessary to fulfill the departments mission and duties to the people. Finally, the city must also consider the greatest good for the individual firefighters. The greatest good for each firefighter is to have a workplace free of prejudice and unnecessary harm and to be justly compensated for just work. What about people groups? Does the city have a duty to examine the greatest good for minority workers in general? And is that good greater or merely equal to the good it owes to all people groups? It is a good ethical question (and legal question) that the Supreme Court and ethical experts agree is not properly addressed by Title VII (Chandler, 1979; Ricci v. DeStefano, 2009). When the city learned of the possible disparate impact, it had a legal and ethical duty to investigate the prima facie finding to determine if it had inadvertently discriminated against the black and Hispanic firefighters through its test. The responsibility is on the employer for determining if a test is valid (Kaur, 1994). The city failed to do its ethical and responsible duty when it acted based on the prima facie finding of disparate impact without first determining if the discrimination was

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actually based in evidence or purely a result of the actions of the individual applicants. The city engaged in unethical and disparate treatment of the applicants who performed well by discarding their hard-earned scores without proper justification. As a result, the department was forced to leave the open positions vacant or fill them with less than fully qualified personnel. In the months and years following its decision, the citys action and judgment was questioned and critiqued by the nation. By all accounts, the city did not perform the greatest good for the citizens, department, it self or the applicants. Conclusion Six years after the city of New Havens Civil Commission Board threw out the results of the 2003 captain and lieutenant promotion tests, the US Supreme Court ruled on the discrimination suit filed by the white firefighters. It said the city had committed real discrimination against one group based on an unverified claim of discrimination by another group (Barnes, 2009). The test was never proven biased toward or against any racial group. In the end the ethically just idea of promoting equality for diverse peoples was dishonored by New Havens city leaders who failed to consider the greatest good for the citizens, the department or the firefighters themselves. Diversity is good but it is not the goal. When diversity is used as a tool for achieving a organizations goals, it is an assent. However, when it is misapplied, as in this case, it becomes a liability and a distraction for us all.

THE NEW HAVEN 20: AFFIRMATIVE ACTION References Barnes, R. (2009). Justices rule for white firemen in bias lawsuit: Sotomayor's decision is overturned. The Washington Post,p. A.1. Retrieved from ProQuest Newsstand. (Document ID: 1768952851). Chandler, M.B. (1979). The business necessity defense to disparate-impact liability under title VII. The University of Chicago Law Review, 46(4), 911. Retrieved from ABI/INFORM Global. (Document ID: 7126598). Kaur, A. (1994). Affirmative action: An evaluation. Retrieved from http://newman.baruch.cuny.edu/digital/2000/honors/kaur_1994.htm. New Haven, City of. (2010). Fire Department Overview. Retrieved from http://cityofnewhaven.com/Fire/Overview.asp. Ricci v. DeStefano, 129 S. Ct. 2658, 2671, 174 L. Ed. 2d 490 (2009). Retrieved from http://www.supremecourt.gov/opinions/08pdf/07-1428.pdf. Syed, J., & Kramar, R. (2009). Socially responsible diversity management. Journal of Management and Organization, 15(5), 639-651. Retrieved September 19, 2010, from ABI/INFORM Global. (Document ID: 1970680141). US Census Bureau. (2000). New Haven City, Connecticut Statistics and Demographics (US Census 2000). Retrieved from http://newhaven.areaconnect.com/statistics.htm. Winrow, B., & Schieber, C. (2009). The disparity between disparate treatment and disparate impact: An analysis of the Ricci. Allied Academies International Conference. Academy of Legal, Ethical and Regulatory Issues. Proceedings, 13(2), 27-29. Retrieved from ABI/INFORM Global. (Document ID: 1993619361).