Twenty-four fire lieutenants with the Cleveland Fire Department are suing the city alleging that the results of a recent captain’s exam produced such a statistical imbalance that it violates federal anti-discrimination guidelines. While such an claim, referred to as disparate impact discrimination, is hardly precedent setting, what is unusual is that white firefighters are making it.
The suit was filed late last year in Cuyahoga County Court of Common Pleas, and removed to US District Court for the Northern District of Ohio last week. It contends that race played an impermissible role in the promotional process, as evidence by the statistical imbalance in the selection rates between whites and blacks. The Equal Employment Opportunity Commission long ago established the 80% rule as a guideline to help employers understand if their hiring or promotional process inadvertently impacts along racial, gender or ethnic lines.
Under the 80% rule, if the selection rate for any race, sex, or ethnic group “is less than four-fifths (4/5ths) or eighty percent (80%) of the selection rate for the group with the highest selection rate”, it is said to have a “disparate impact” indicating that an impermissible factor may have played too great a role in the selection process. As the EEOC and courts have ruled, it is not necessary to identify exactly what the offending criteria was, nor that the discrimination was intentional. Once a party demonstrates that the 80% rule has been violated, the burden shifts to the employer to prove that the criteria used were “job related for the position in question and consistent with business necessity.”
Assuming the employer is successful, the burden the shifts back to the employee to establish that a less discriminatory employment practice is available, or that the practice was a pretext for discrimination. This three-step burden shifting comes from Griggs v. Duke Power Co., 401 U.S. 424 (1970); Grant v. Bethlehem Steel Corp., 635 F.2d 1007 (1980); Wards Cove Packing Company, Inc. v. Atonio, 109 S. Ct. 2115 (1989):
According to the complaint:
- In 2017, the City administered a promotional examination for the rank of Captain in the Division of Fire.
- There were many irregularities and deficiencies in the Exam, relating to its development, content, administration, and scoring.
- The Exam was not content-valid, meaning it was not entirely representative of or correlated to the knowledge, skills, and abilities necessary to perform the duties of the job of a Captain in the City’s Fire Division.
- Out of all African-American candidates who completed all portions of the Exam, 57.14% were promoted to Fire Captain.
- By contrast, out of all Caucasian candidates who completed all portions of the Exam, only 26.53% were promoted to Fire Captain.
- Based upon the foregoing information, Caucasian candidates were promoted at a selection rate of only 46.43%, when compared to selection rate for African Americans.
- Because the selection rate for Caucasians is far less than 80%, the City’s promotional process to Fire Captain violates the Four Fifths Rule as provided in the Uniform Guidelines on Employee Selection Procedures (UGES) adopted by the federal government.
- Based on information and belief, prior to the City’s developing and administering the Exam, City officials publicly and privately expressed a desire to increase the number of African Americans throughout the Fire Division ranks, including in the officer ranks, such as Captain.
- In 2014, Safety Director Michael McGrath told a local news outlet that the City is stepping up recruitment efforts to attract more minorities to the fire department;
- In 2015, City Councilman Jeff Johnson described how it was a “travesty of the Fire Division” that only 12% of the employees were African American, and only one of 74 Fire Captains was African American at that time; and
- Councilman Johnson described it as “unacceptable for the Fire Division of Cleveland to have this racial disparity,” going on to say that “how we select firefighters.it has a racial impact.it is racially disparate.”
- Upon information and belief, the City developed and/or administered the Exam in a manner that would achieve its stated goals of promoting more African Americans, to the detriment of candidates of other races and national origins, including Plaintiffs.
This is the first time I have seen white firefighters use a disparate impact theory to make a reverse discrimination case. Here is a copy of the complaint.