Promotions Needed After Biased Firefighter Test

     CINCINNATI (CN) – A fire department found to have discriminated against white and black candidates cannot avoid promoting them now, the 6th Circuit ruled.
     The case revolves around two tests that the city of Akron held in December 2004 to promote firefighters to the positions of lieutenant and captain.
     Both exams involved a 100-question multiple choice section and oral assessments. While lieutenant candidates also faced a written exercise, captain candidates had ann additional oral assessment involving group exercise.
     A group of 23 firefighters ended up suing the city for racial and age discrimination, and a jury credited their claims after a 2008 trial.
     That judgment concluded that the “2004 promotional exam adversely impacted twelve Caucasian captain candidates on the basis of their race, adversely impacted three African-American lieutenant candidates on the basis of their race, and adversely impacted eleven lieutenant candidates on the basis of their age,” the 6th Circuit explained last week.
     The court ultimately awarded the candidates damages and front pay but held another damages trial to account for the “differing circumstances of each of the 23 plaintiffs.” A final judgment on that damages trial is still pending, but the court previously gave the city a July 18, 2011, deadline to promote the plaintiffs.
     Objecting to the ordered promotions, Akron told the 6th Circuit that either there was insufficient evidence to show disparate impact liability or that the injunction was an abuse of discretion.
     Considering only the abuse-of-discretion question, the federal appeals court sided with the firefighters.
     The 16-page ruling notes that the firefighters showed “adverse effect by applying the ‘four-fifths rule’ to promotion rates instead of exam pass rates.”
     Under the four-fifths rule, “[a] selection rate for any race, sex, or ethnic group which is less than four-fifths … of the rate for the group with the highest rate” can be “generally … regarded … as evidence of adverse impact,” according to federal labor law.
     “The city does not dispute that African-American candidates and candidates over the age of forty were promoted to lieutenant at less than 80% the rate at which Caucasian candidates and candidates under the age of forty, respectively, were promoted,” Judge R. Guy Cole Jr. wrote for a three-person panel. “Instead, the city argues that promotion rates were an altogether inappropriate metric, and exam pass rates should have been compared. The plaintiffs, however, distinguish between pass-or-fail promotional testing, where the actual score does not matter except insofar as the exam taker passes or fails, and graded testing, where those who achieve passing scores are not on equal footing, but are selected for promotion in rank-order.”
     Akron also failed to save its test by pointing to the “Rule of Three” it used to interview candidates, according to the ruling. The rule requires “that for each vacant position, the three top-ranked candidates [be] considered for the vacancy.”
     Though Akron said the rule meant that its promotions were not rank-ordered, the appellate panel highlighted that “all of the dozens of promotions made coincided exactly with the candidates’ places on the rank-ordered list.” (Emphasis in original.)
     Akron additionally cannot argue now that the evidence does not reveal it as “that unusual employer who discriminates against the majority,” according to the ruling.
     If Akron wanted to make that argument, it should have done so earlier in the proceedings, the appellate panel found.
     Akron also failed in its attempt to convince the panel that the loss of a job does not constitute irreparable harm – because the loss could be remedied by damages, back pay or both.
     “Plaintiffs here have much more invested in their careers than a probationary employee does,” Cole wrote. “Most have over two decades of seniority. ‘Many’ plaintiffs were already acting in their new ranks at the time the district ordered the promotions. And even with the ordered promotions, the district court pointed out that plaintiffs ‘would still be at a significant disadvantage when compared to those that benefitted from the prior testing process.’ Among other things, the district court noted that, without promotions, plaintiffs will be unable to gain experience and unable to seek the next rank during the following round of testing.”
     Akron lastly failed to show that the ordered promotions harm the public at large since leadership positions in the fire department “must be filled by firefighters who possess the appropriate skills, knowledge and abilities.'”
     “Presumably the city is trying to imply, though it does not say so explicitly, that the promoted plaintiffs do not possess these qualities, and their promotions harm the public interest by placing incompetent firefighters in leadership positions,” Cole wrote. “However, out of eighteen plaintiffs promoted pursuant to the injunction, only three were ineligible according to the test. Furthermore, the city does not specify which skills, knowledge and abilities are absent in which plaintiffs, and why these qualities are particularly ‘appropriate’ for leadership positions. This argument fails for lack of development.”

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