[IPAC-List] Ricci v DeStefano

[Eric Palmer]

Excellent point.  Not much has been said about the impact of the rule of 3, which is extremely restrictive.  No doubt such a restrictive rule is in place to avoid subjective hiring and the continuance of the good ole boys club, but if New Haven Fire hires in strict rank order, as most fire and police departments do, then there's no reason to keep that restriction in place.  A rule of ten might have made a great difference.

--- On Thu, 7/2/09, RPClare at aol.com <RPClare at aol.com> wrote:


From: RPClare at aol.com <RPClare at aol.com>
Subject: Re: [IPAC-List] Ricci v DeStefano
To: ppluta at hr.lacounty.gov, IPAC-List at ipacweb.org
Date: Thursday, July 2, 2009, 2:00 PM


As the city moves to utilize the list, the suit looming may be regarding  
the artificial restriction of hiring to a rule of 3. I can't imagine  
justification exists to support that when a broader, more statistically  defensible 
approach may reach more protected class members. The downside to the  
current rule is not that protected class members will "just have to wait" but  
that seniority in fire services impacts so many other things including 
training  availability and choice of assignments. Promotional opportunities are 
critically  impacted by seniority and training completed. In these economic 
times,  promotional opportunities could easily be unavailable for years if not 
a decade  or more.


In a message dated 7/2/2009 3:47:42 P.M. Eastern Daylight Time,  
ppluta at hr.lacounty.gov writes:

The  courts have already weighed-in on voluntary affirmative action 
programs.   However, there is no indication that the City of New Haven had a 
voluntary  affirmative action program in place.  If it did, perhaps it would have  
developed a different selection plan to better achieve its goals.   
Affirmative action plans are usually strategic and address how a manifest  racial 
imbalance is to be corrected over a specified period of time.  A  post hoc 
race-based decision is in no way an application of affirmative  action: it is 
a knee-jerk reaction that was taken to achieve some non-specific  goal.  Had 
the City and its employees acted more deliberately and  consistently, they 
might not have looked like such buffoons and we wouldn't  have all been put 
through this nonsense.

Don't even get me started with  the strict application of the 4/5 rule with 
small sample sizes.  You  would think that nobody ever heard of sampling 
error.  It is interesting  that we also run into that problem in LA where 
whites are usually not the  majority group; at least not a very large one.  With 
small sample sizes  (i.e., small examinations) impact calculated using the 
4/5 rule-of-thumb  shifts across different groups from administration to 
administration.   However, if one looks at the results across time, the impact 
tends to  disappear.  Fancy that!

Paul E. Pluta, MA, SPHR
Human Resources  Analyst III
Los Angeles County Department of Human Resources
Workforce  Planning, Test Research, & Appeals Division

-----Original  Message-----
From: Crenshaw, Jeffrey [mailto:crenshawj at PBJCAL.ORG]  
Sent: Thursday, July 02, 2009 12:26 PM
To: Eric Palmer;  IPAC-List at ipacweb.org
Subject: Re: [IPAC-List] Ricci v DeStefano

To  help address Eric's statement ("I'm not even sure underrepresentation 
is still  an issue in the (New Haven) fire department"), the dissenting 
opinion presents  info (below) to shed light on that issue.  Despite 
litigation-induced  efforts, it appears there that minorities are still substantially  
underrepresented at the officer ranks (i.e., assuming the data in the  
dissenting opinion is correct): 

- "In the early 1970's,  African-Americans and Hispanics composed 30 
percent of New Haven's population,  but only 3.6 per-cent of the City's 502 
firefighters... [O]f the 107 officers  in the Department only one was black, and 
he held the lowest rank above  private." 

- "New Haven's population includes a greater pro-portion of  minorities 
today than it did in the 1970's: Nearly 40 percent of the City's  residents are 
African-American and more than 20 percent are Hispanic. Among  entry-level 
firefighters, minorities are still underrepresented, but not  starkly so. As 
of 2003, African-Americans and Hispanics constituted 30 percent  and 16 
percent of the City's firefighters, respectively. In supervisory  positions, 
however, significant disparities remain. Overall, the senior  officer ranks 
(captain and higher) are nine percent African-American and nine  percent 
Hispanic. Only one of the Department's 21 fire captains is  African-American."  

-----Original Message-----
From: Eric  Palmer [mailto:epalmer613 at yahoo.com] 
Sent: Wednesday, July 01, 2009 10:27  AM
To: IPAC-List at ipacweb.org; Mark Hammer
Subject: Re: [IPAC-List] Ricci  v DeStefano

Mark,

You make some very good points.   One reason I don't think the New Haven 
case will change the contours of the  discussion radically is that New Haven 
seems an unusual case.  One of the  salient facts of the New Haven case, as I 
understand it, is that they have a  history (at least the last couple of 
decades) of being very effective at  addressing underrepresented groups and 
increasing their representation.   I'm not even sure underrepresentation is 
still an issue in the fire  department.  In fact it goes beyond being 
effective: they've received  warnings from several courts on several occasions for 
deliberately skirting  the law in order to hire minority candidates over 
white candidates.  The  evidence, such as it is, seems to suggest that this is 
less related to HR  concerns about underrepresentation or the bias of exams, 
and more related to  the mayor solidifying his political base of power.  As 
I read the court  decision, this is what drove the majority
opinion toward seeing the city's  arguments as pretexts, and their decision 
to throw out the test as one more  step in an ongoing trend.

There are of course many people,  especially in this group, who understand 
the facts of this case much better  than I, and I welcome any feedback if my 
facts are wrong.

Eric  Palmer
City of Fort Worth

--- On Wed, 7/1/09, Mark Hammer  <Mark.Hammer at psc-cfp.gc.ca> wrote:


From: Mark Hammer  <Mark.Hammer at psc-cfp.gc.ca>
Subject: Re: [IPAC-List] Ricci v  DeStefano
To: IPAC-List at ipacweb.org
Date: Wednesday, July 1, 2009, 7:07  AM


I'm not deeply steeped in this stuff with respect to the legal  aspects, so 
I'll add an outsider's view.

Seems to me that one of the  aspects of such cases that never gets 
discussed is...time.  In other  words, the actions of New Haven were based partly on 
one point in time (i.e.,  we don't have enough of THESE demographic 
group-members at THIS point in  time), as opposed to any assumption about what 
could happen over time in the  future (i.e., we didn't meet our goals today, but 
we will eventually).   The perspective of the plaintiffs was also based on 
time: "But I qualified  NOW.  Why are you telling me that I will have to 
wait  longer?".

Here in Canada, a 2000 report on increasing the  representation of visible 
minority members in the federal public service (the  so-called Perinbam 
Report) recommended aiming for 20% of all new recruits to  be visible minority 
members.  This target is, at present, well in excess  of their actual labour 
market availability.  So why such a high  proportion?  Simple - to make up 
for lost ground.  Members of  under-represented groups ask a very legitimate 
question: "If not now,  when?".  And the answer to the question can't be, 
nor should it be,  "Wait.  It will happen eventually."  Of course, this is not 
the  perspective of those who see things like a 20% hiring target as an 
artificial  quota and.....wait for it.....a basis for valuing demographic 
characteristics  over merit, when it comes to hiring.  Still, the forecasting 
people look  at our influx and outflow, and say "Jeez, if we stick with a 
target of 12% or  even 15% in recruitment, it's gonna take us
another 10 years or more to  simply 
be juuuuuuust a little bit behind LMA.".  And, like it or not,  rate of 
accomplishment conveys a message that can easily speak louder than  what 
management says.  I.E. "They talk a good game, but how come I don't  see any <XX> 
faces in here YET?"

So, from where I stand, a great  deal of this debate revolves around time, 
how long people think things  *should* take, and what organizations do (or 
not) to meet the time-related  expectations of different agendas.  Some of 
those agendas are clearly  based on a sort of restitution model (i.e., we've 
been "shut out" for too long  a time, let us in), and other agendas - 
particularly in a country based so  much on immigration - are based on a 
the-government-has-to-reflect-the-country  model.  Certainly some of those 
time-related concerns can be addressed by  the types of tools available and used.  But 
it takes more than  that.  It takes messages, and "authentic acts" (i.e., 
acts of  demonstrable integrity and sincerity), to create the sort of patience 
needed  to fill in what selection procedures themselves cannot do.  It is  
unreasonable to expect the selection process and tools alone to accomplish a 
broader social agenda at the pace that people expect. 
However, it is  unreasonable to expe
ct the social agenda to simply ignore the passage of  time.  There is a 
world - already in progress - that employers in all  sectors have to face.

Mark  Hammer
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