- The Washington Times - Wednesday, March 10, 2010

ANALYSIS/OPINION:

Is an employment test unfair if it doesn’t produce a racially balanced result? A case before the U.S. Supreme Court deals with this question. The plaintiffs in Lewis v. Chicago claim that the city violated federal civil rights law because a disproportionate number of blacks failed a written exam for firefighting jobs.

The plaintiffs rely on a controversial concept known as “disparate impact” theory - a sort of “guilty until proven innocent” approach to charges of discrimination. Instead of focusing on concrete examples of bias by identifiable bureaucracies or individuals, disparate-impact analysis looks to statistical disparities. It says courts should infer discrimination if the results of a test or policy don’t parallel the community’s racial makeup.

This insistence on a predetermined racial outcome doesn’t square with common sense. Skills and aptitudes vary among people of every racial group, and all kinds of individual factors play a role in how test-takers perform on even the most objective exam.

Moreover, an employment test should be measured, first and last, by whether the questions test skills and knowledge that are essential for the job - especially with jobs that, like firefighting, are crucial for public safety.

Disparate impact may not make a lot of sense as an analytical approach, but that didn’t stop it from being written into federal law. Congress adopted it as part of the Civil Rights Act of 1991, signed by President George H.W. Bush. His White House counsel, C. Boyden Gray, acknowledged that the main goal wasn’t really to fight discrimination, but to produce a more racially balanced work force.

Though it may be “legal,” however, this doesn’t mean it’s constitutional. Quite the contrary: As Justice Antonin Scalia pointed out in a Supreme Court case last year, dealing with a challenge to a New Haven firefighters exam, the disparate-impact provisions of federal law can actually promote discrimination. In that sense, they’re in conflict with the Equal Protection Clause of the 14th Amendment, which bars government from treating people differently based on skin color.

How does disparate-impact doctrine give rise to race-based bias? By giving government an incentive to use skin color as a factor in hiring and promotion.

Government employers can take painstaking measures to craft tests that won’t disadvantage anyone on the basis of race or ethnicity (Chicago, for instance, spent $5 million on that goal with its firefighters exam), but they still can’t guarantee that an objective test will produce a “balanced” racial distribution among the top scorers.

So they’re pressured to give up the quest for objectivity altogether. In a defensive effort to avoid disparate-impact lawsuits, cities and other government entities will skew their tests with a specific racial outcome in mind. Instead of designing questions to be race-neutral, they will develop race-conscious tests that put skin color above genuine job-related concerns.

Meanwhile, some private employers (who also can be subject to disparate-impact litigation) have chosen to abandon communities that have high minority populations.

For public and private employers alike, another response is to drop anything resembling standard hiring procedures. Reportedly, the Chicago Police Department is considering scrapping entry exams, presumably for fear of the same kind of legal morass that ensnares the city’s fire department.

Disparate-impact theory debases employment standards and encourages - almost demands - discrimination by race. The Chicago case offers the Supreme Court a chance to right this wrong by striking down a doctrine that is at odds with constitutional guarantees of equal rights and equal justice.

Joshua P. Thompson is an attorney with Pacific Legal Foundation. He wrote the foundation’s amicus brief to the Supreme Court supporting Chicago against the challenge to its firefighters’ exam.

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