DISCUSSION CASE: REVERSE DISCRIMINATION
Equal treatment under the law is a fundamental principle of social justice. But equal treatment does not entail identical treatment. In the most obvious case, the law should not treat a guilty person exactly the same way it treats an innocent person. Equal Employment Opportunity also does not require all employees or all job applicants be treated in exactly the same way. Employers are not required to treat unqualified and low-performing employees identically to highly qualified and performing employees. The law allows employers to discriminate among employees as long as the ground for discrimination for discrimination is job-related, fair and objective. Concepts such as earnings, merit and deserts require that we have legitimate means for discriminating between employees.
For example, employers can promote a male employee over a female employee as long as the male is more qualified, the female has had an equal opportunity to qualify and the standard for qualifications are more fair and objective. A company may establish sales record as the qualification for being promoted to a position of sales manager. Promoting a male rather than a female for this position is just as long as the women had an equal opportunity to achieve similar sales and as long as sales performance is a fair and objective qualification criterion for selection as sales manager.
But how does one determine if criteria for jobs, promotions and pay increases are fair and objective? Could the criteria used to determine qualifications be unfair and discriminatory? What if the record shows only males, or only whites, were qualified for a certain jobs or a certain promotions? Would that facts alone be enough to demonstrate that the criteria were unfair? Consider the case of some firefighters in New Haven, Connecticut.
In June 2009, the United States Supreme Court ruled that the City of New Haven had discriminated against a group of firefighters when it ignored the results of a promotion exam that disproportionately identified white exam takers as more qualified. Twenty firefighters, nineteen white and one Hispanic, who were denied the promotions when the results of the exam were disregarded sued the city claiming that they were victims of reverse discrimination. By a vote of 5-4, the U.S. Supreme Court agreed.
Many employers establish tests to determine which employees might be qualified for promotions. Like other employers, the City of New Haven took steps to ensure that the exams measured the knowledge and skills that would be deemed necessary for promotion up the ranks in the city’s fire department. As an extra precaution, New Haven included diverse racial participation in the design and administration of the tests. In this particular case, 60 percent of the test was written and 40 percent was oral.
A group of 118 firefighters took the test for promotion to lieutenant and captain in late 2003. A score of 70 percent was the minimum score to pass and become qualified for promotion. Individuals with top score were promoted as positions became available. Nine of the twenty-seven blacks (33 percent) and six of twenty-three Hispanics (26 percent) who took the test passed, compared to forty-one of sixty-eight whites (60 percent). Given the top scores and the number of lieutenant and captain positions that were available, no blacks or Hispanic would have been eligible for promotion to one of the eight lieutenant, vacancies and only two Hispanics would have been eligible for promotion to one of the seven captain vacancies. The City of New Haven decided to invalidate these exams on the grounds that such disparate results demonstrated that the tests were racially biased. The firefighters who were denied promotions as a result, filed suit that they were victims of reverse discrimination. They claimed that they would receive promotions if they had been black and score the same results.
The majority opinion agreed with the firefighters and ruled that the city unfairly discriminated against them by ignoring the test results. The court ruled that unequal test results in itself was not sufficient evidence that the test were biased. Writing for the majority, Justice Anthony Kennedy concluded, “The city rejected the test results solely because the higher scoring candidates were white” and that this fact alone did not prove unfair discrimination. In a dissenting opinion, Justice Ruth Bader Ginsburg questioned the legitimacy of the written test for a firefighter positions: “Relying so heavily on pencil-and-paper to select firefighters is a dubious practice.” She concluded, “Congress endeavored to promote equal opportunity in fact, and not simply in form. The damage today’s decision does to that objective is untold.”
DISCUSSION QUESTIONS
Problem 1. Do you agree with the Supreme Court’s decision?
Problem 2. What do you think Justice Ginsburg meant by equal opportunity “in fact, and not simply in form”?
Problem 3. Can you think of job qualifications that might be racially biased?
Problem 4. What responsibility does a private employer have to create a racially diverse workforce?