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Discrimination and Reverse Discrimination in Hiring

Written by Randy Means

The law of discrimination and reverse discrimination, which is preferential treatment of traditional minority group members, is not exactly straightforward. For example, discrimination in the hiring processes is illegal except when it’s not. You must know when and how such discrimination is illegal and identify the limited but important circumstances when it is not.

The only intentional discrimination that is ever allowed involves relatively gentle efforts at affirmative action, showing slight preference for minority candidates. Before we take up this controversial topic, let’s first address the “original” kind of discrimination, which is discrimination against traditional minority groups, which is completely illegal.

What many do not understand is the law of unintentional discrimination— statistical discrimination. An employment criterion (a written test or physical fitness test, for example) is illegal if it causes a statistically significant adverse (“disparate”) impact on a class of people by race, gender, etc., unless the criterion can be validated by being proven to be so job related as to constitute, essentially, a business necessity.

So, if the cutoff score on a physical fitness test or a written test has a statistically significant negative effect on, say, women (in the case of a physical fitness test) or, say, people of color (in the case of a written test), that criterion is illegally discriminatory unless it can be “validated.”

Determining Adverse Impact

Determining whether or not a discriminatory impact is statistically significant is not always easy. For our purposes here, a useful rule of thumb is the 4/5 or 80 percent rule. Suppose, for example, that 90 percent of males “pass” the physical fitness test. If you take 4/5 of that number (80 percent of 90 percent), you arrive at the number 72. If less than 72 percent of women “pass” the physical fitness test, that test (or its cutoff score at least) may be deemed to have “adverse impact” on women as a group. That physical fitness test (or its cutoff score) is illegally discriminatory unless it can be proved to be so job related as to constitute a business necessity.

If an employer tries to avoid this problem by using “gender adjusted” cutoff scores (to make things better for female candidates), the employer runs the risk of intentional discrimination (against men) and possible violation of Section 106 of the Civil Rights Act of 1991, which explicitly forbids race and gender “norming” in employment-related tests. A written test, or any other selection criterion, would be analyzed in the same fashion.

Suppose your written test has a math section that produces a statistically significant negative impact on certain minority groups, causing a “violation” of the 80 percent rule described in the preceding paragraph—that portion of the written test would be illegally discriminatory, unless it could be proven that a police officer actually has to be able to do that kind of math to succeed at entry level police work.

If that math section involved, for example, long division by hand, validation would be unlikely because the job of entry level police officer does not require doing long division by hand. If it were necessary to do that kind of math, virtually everyone who needed to do it would use a calculator.

This area of the law gets a good bit more complex than just what we’ve explained here, but hopefully the concept is clear. We are not allowed to use a selection criterion that has adverse impact by legal classification (race, gender, etc.) unless the criterion can be validated. Let’s move now to the other side of the discrimination coin: so-called “reverse” discrimination.

Affirmative Action

As mentioned at the outset, some intentional discrimination in favor of a traditional minority group is sometimes allowed, but is not required. In an effort to remedy the effects of two centuries of institutional discrimination against traditional minority groups, the Supreme Court allows a little bit of temporary discrimination in favor of those groups. Here are the rules, in a nutshell.

Preference may be shown for wellqualified minority candidates if necessary to eliminate a “manifest imbalance” in your workforce, or if it is necessary to correct specific instances of recent past discrimination. Most employers are not anxious to prove that they’ve engaged in specific instances of recent past discrimination, so we’ll skip that theory and concentrate on the question of “manifest imbalances.”

Obviously, the complete absence of women from your sworn workforce shows a manifest imbalance. One officer of color in a workforce of a hundred sworn would surely show a manifest imbalance. In either case, an employer would be allowed (but not required) to discriminate in favor of well-qualified women or people of color, even if that discriminated in “reverse” against white males.

As percentages of “representativeness” rise, determining whether there is still a “manifest imbalance” gets harder and harder, but an agency that is 20 percent African-American serving a community that is 35 percent African- American is probably not suffering a “manifest imbalance.” In any event, the Supreme Court makes clear that any such “reverse” discrimination must be fairly temporary and certainly cannot be perpetually ongoing.

Preferential Selection?

We emphasize that an employer is not generally required to engage in preferential treatment of minority candidates. The question is whether or not the employer wishes to engage in that form of affirmative action. Obviously, there are pros and cons. The main negatives are that you’re not necessarily picking the best qualified candidate, the best qualified candidate may be understandably very upset, and internal morale can be adversely affected.

The primary benefit is that you are promoting inclusion and diversifying your workforce. Of course, if you can diversify your workforce without any discrimination that would obviously be the first choice.

You diversify your investment portfolio in an effort to assure its satisfactory performance. The same may be said about your workforce. Diversification of a law enforcement agency may pay substantial dividends in terms of heightened effectiveness and efficiency, as well as quality of service.

Culture, e.g., one’s social environment and the expectations contained in it, often determines behavior. To understand what motivates one’s behavior, it is useful to understand one’s culture. Misunderstanding among and between cultural groups can lead to conflict and even physical violence. Officers who grew up in the cultures of the people they serve may be better able to avoid such misunderstandings and thereby avert such conflicts.

Police depend on the support and assistance of the public; yet members of some racial and ethnic minorities may tend to view police with skepticism if not outright mistrust. A diverse law enforcement agency publicly displays its commitment to equality and fairness. This may forge a better trust between the community and its police force. Much crime is solved by citizen cooperation and assistance.

Officers from minority groups will assimilate to the departments they serve. Their non-minority coworkers will learn much from them simply through the daily duty performance. This type of on-the-job training is far more effective than classroom instruction. This is not to imply that formal sensitivity training should be abolished, but simply to say that if you plant some multi-cultural seeds in your organization, your harvest may be abundant.

In its cases allowing some preferential treatment of minority candidates in respect to university admissions, the Supreme Court has noted that educational processes go better when a student body is diverse. It may be, even more so, that police work goes better when a police force is diverse.

A Recent Case

In September 2010, the NYC Fire Department got hit by a federal judge with a serious ultimatum: Impose racial quotas on your hiring process, or throw out your entrance exam and create a new one. The 11,214-member FDNY is about 90 percent white, 7 percent Hispanic and 3 percent black. These numbers obviously do not reflect the demographic composition of the city of New York, and that’s what put their test under the Court’s microscope.

The federal judge has ruled that, based on its adverse impact on minority applicants, the test is illegally discriminatory. The city is still working this one out and trying to validate its test. Meanwhile it’s paying massive amounts of overtime to put the fires out, and more than 600 applicants have been left at the altar.

You might avoid this kind of judicial arm twisting by adopting a proactive approach. Try to eliminate “manifest imbalances” in your workforce. This may involve some gentle affirmative action. Engage in some “acceptable discrimination” temporarily, combine this for the long haul with active, targeted recruiting and valid selection criteria, and you will have legally defensible selection tools joined with a self-determined diversity program. Together, these initiatives may produce a more competent and effective police force.

Randy Means is a partner in Thomas & Means, a law firm specializing entirely in police operations and administration. He has served the national law enforcement community full time for more than 30 years and is the author of “The Law of Policing,” which is available at LRIS.com. He can be reached directly at rbmeans@aol.com.

Kevin Lowry recently retired as a chief from the Nassau County, N.Y., Police Department. He is a qualified attorney, arbitrator and hearing officer in matters of personnel and employment. Lowry has held supervisory and management positions in patrol, investigations and administration. He can be reached at Kevin@CALLaCOP.com.

Published in Law and Order, Dec 2010

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