Akron Fire Department Battle Hits Sixth Circuit

     CINCINNATI (CN) – Firefighters who claim they missed out on promotions because of discrimination in Akron, Ohio, continued a near-decade-long battle Wednesday in the Sixth Circuit.
     Akron, which has not promoted a firefighter to lieutenant or captain on a permanent basis since 2004, argued that any disparities in promotions before that time were solely coincidental.
     Several firefighters sued the city in 2005 on claims that promotional tests discriminated against both black and white members of its fire department.
     A protracted legal battle and jury trial ended with an injunction and back pay for the firefighters.
     Representing Akron at the appellate hearing today, attorney Ben Sasse decried the judgments as “totally disproportionate” to the “unintentional discrimination” experienced by the firefighters.
     Throughout his 30-minute argument, Sasse stressed that violations of the “four-fifths” rule – a common methodology used to judge disparate impact – do not alone determine whether discrimination has occurred.
     He said statistics in the current case “show no significant disparities with respect to age or race.”
     “The four-fifths rule is not a legal test,” Sasse said.
     Judge Deborah Cook questioned Sasse about whether sample size determines disparate impact.
     Sasse responded: “I believe this is a small enough sample size [that the four-fifths rule is not applicable.] The sheer randomness of the findings points to chance rather than discrimination.”
     Attorney Bruce Elfvin meanwhile stressed that reversing the jury’s finding here would be a “fundamental abuse of the Seventh Amendment.”
     When pushed by Judge Cook about the sample size, Elfvin replied that “size does not undermine the validity of the four-fifths rule.”
     “The jury considered every bit of statistical evidence” regarding the promotions, the attorney said.
     Sitting on the panel by designation from Detroit, U.S. District Judge Avern Cohn interrupted Sasse’s initial argument to ask why the matter hasn’t been resolved.
     “Is it the attorneys?” Cohn asked. “Is it the district court judge? I want an honest answer. A candid answer.”
     Sasse’s time expired before he could respond, but Judge Cohn continued the train of thought when Elfvin approached the podium.
     Elfvin blamed Akron.
     “The Mayor declared that he would never promote ‘any of these guys’ shortly before he resigned,” Elfvin said.
     Sixth Circuit Judge Karen Nelson Moore rounded out the panel.
     No timetable has been set for a decision.

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