[IPAC-List] Ricci v DeStefano

[Bryan Baldwin]

re: 4/5ths and rule of 1: interestingly on the Captain exam the rule of one would nearly eliminate the adverse impact against Black candidates (another +1 and it'd be gone).  Ditto if we added 3 passing Black candidates to the Lieutenant exam.  We're not dealing with big numbers here, which makes it all the more surprising that the majority court stated "The racial adverse impact here was significant".
 
To a large extent this really isn't about the pass point.  Hispanics actually were tied with Black candidates for the lowest pass rate on the Captain, and had the lowest pass rate on the Lieutenant exam.  As others have noted, it really was more the rule of 3 that had the biggest impact; it excluded any black candidates from consideration.
 
I can't help but think that one of the things this decision does is remind us that the Supreme Court is not SIOP.  What our profession may find to be heavily flawed, they see as reasonable.  If the City is sued for adverse impact, it'll be interesting to read what the experts have to say.
 
 
Bryan Baldwin
Staff Services Manager II
California Department of Justice
Division of Administrative Support
Personnel Programs
(916) 322-5446



>>> Eric Palmer <epalmer613 at yahoo.com> 7/2/2009 1:54 PM >>>

Jeffrey and Paul both make good points.  To Jeffrey's point: underrepresentation is underrepresentation, and needs to be addressed, but most jurisdictions would give their eye-teeth to have representation as close to the general population as New Haven has at entry-level fire fighter (30:40 and 16:20).  At the officer rank, there is obviously a much greater disparity.  

This segways to Paul's point: given that's where the major disparity lies, New haven needs to take a thoughtful strategic approach to develping appropriate recruitment and selection plans to address it, particularly (since the City says this is what it wants) selection tools that are as valid as the disputed test in the Ricci case, but with less adverse impact.  A well designed assessment center might achieve that.  The danger with assessment centers is when the various components become little more than "FYI's" to the selection committee instead of being weighted items.  Unfortunately assessment centers of that sort are sometimes used as a means of masking subjective selection.  

On Paul's point about strict application of the 4/5th rule: I couldn't agree more.  I assume people in this group are all familiar with the "rule of 1" (i.e. if passing or failing one additional member of a particular group would remove the adverse impact, then there is no statistically significant adverse impact).  I've administered numerous exams where the rule of 1 applied; in fact I can remember several times, testing for highly technical positions, where the rule of 1 was the only reason we didn't have adverse impact against whites.

Eric

--- On Thu, 7/2/09, Pluta, Paul <ppluta at hr.lacounty.gov> wrote:


From: Pluta, Paul <ppluta at hr.lacounty.gov>
Subject: Re: [IPAC-List] Ricci v DeStefano
To: IPAC-List at ipacweb.org 
Date: Thursday, July 2, 2009, 12:52 PM


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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