The City of Chicago ran an entry-level firefighter test in 1995. After many subsequent uses of the results, a court ruled in 2004 that the test was discriminatory, based on race. The city did not try to defend the test. Instead, city officials argued that discrimination charges were time-barred. Finally in 2010 the U.S. Supreme Court agreed in Lewis v. Chicago that the test was bad but found the charges were good. The Chicago Tribune reported on August 17, 2011 that the decision will cost the city $45M. This does not include the city‘s legal costs.

In Ricci v. Destefano the City of New Haven not only did not defend its firefighter promotional tests, but portrayed them as somehow flawed to avoid certifying promotional lists. It was not until the final Supreme Court substantive brief that the city asserted that there was a problem with the tests’ validity. The Court ordered the city to live with the results. Along the way some well known industrial-organizational psychologists filed an amicus brief asserting that the tests could not be valid because they were content-deficient. And now the Second Circuit in Briscoe v. New Haven has cleared the way for the discrimination suit the city said it was trying to avoid. The court noted that Briscoe is arguing, among other things, that the “industry norm” for firefighter promotion is 30% for the written test and 70% for the oral component, rather than the 60/40 weighting that the city used. (more…)

While it cannot compare to Wal-Mart, the Borough of Duyea, Pennsylvania v. Guarnieri ( No. 09–1476 , 6/20/2011) was another closely-watched case for its implications for public employees. Police Chief Guarnieri had a running battle with the borough council in which he was fired, filed a union grievance, and was then reinstated (after suspension) by an arbitrator. After further unpleasantries and another partial win through arbitration, he sued under 42 U.S.C. §1983 (Civil Rights Act of 1871, deprivation of rights under color of law); later, having been denied payment for overtime, he added retaliation for what he alleged was violation of his rights covered by the First Amendment of the U.S. Constitution, specifically the ―right “to petition the Government for a redress of grievance” in bringing his original charge.

The trial judge instructed the jury that Guarnieri’s grievances and suit were constitutionally protected activity.

This was the interpretation of the law in the Third Circuit, but not elsewhere. The jury awarded punitive and compensatory damages as well as attorney’s fees. On appeal, the Third Circuit threw out the punitive damages but left standing the rest of the award. The council appealed again on a central issue: Was the chief’s action as an employee constitutionally protected activity?

The Court said no, more-or-less unanimously on the outcome, but with some disagreement on the legal theory. Justice Kennedy wrote the opinion of the Court. Justice Thomas wrote a separate opinion concurring in the judgment. Justice Scalia wrote an opinion partially concurring and partially dissenting. The majority held that, as with the First Amendment’s Speech Clause, activity is protected only when it involves a matter of public concern. Even when it does, there is a balance between the employee’s rights and the rights of the government as the employer. This does not mean that the Speech and Petition Clauses should be considered as equivalent, or that every petition situation comes down to a speech situation. But allegations of retaliation should not entail a need to consider exceptions to the public concern standard. Public employees can petition for redress via lawsuits. Public employees have protections established by law. “The Petition Clause is not an instrument for public employees to circumvent these legislative enactments when pursuing claims based on ordinary workplace grievance” (slip op. at 11). In contrast, “Outside the public employment context, constitutional protection for petitions does not necessarily turn on whether those petitions relate to a matter of public concern” (slip op. at 13). The distinction rests on whether the government is in the role of sovereign power, or in the role of employer trying to conduct orderly business.

Justice Scalia thought that the matter could be resolved more simply on the principle that constitutional protection does not apply to petitions addressed to the government as the petitioner’s employer. He did not favor conflating petitions with speech, or petitions with lawsuits. He also noted that historically petitions involved private issues, and so took issue with the majority’s emphasis on petitions being used to effect change in government. Justice Thomas agreed with Justice Scalia’s principle. In addition, he noted that the initial suit under § 1983 was not a “petition” to the borough government as employer, but to the federal government as sovereign, for which the borough council allegedly retaliated. If the suit were frivolous and intended to be disruptive to the employer, there were ways to deal with it in the courts, not by retaliation. He would have preferred to have the case remanded to the Third Circuit to sort out this aspect.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

A public sector physical ability test bit the dust on summary judgment in Easterling v. The State of Connecticut Department of Correction (DOC), No. 3:08-CV-0826 (D. Conn. 6/5/2011). Easterling, an applicant for Correction Officer (CO), failed one part of the physical ability test, the 1.5 mile run in 2004. She subsequently filed a class action sex discrimination suit. The class was certified in January 2010; both sides filed motions for summary judgment.

Experts for DOC admitted that there was no evidence that the 40th percentile cut scores correlated with minimum level of aerobic capacity to perform the CO job. No study had been done to determine cardiovascular capacity for CO.

The physical ability test has four events: sit and reach, one minute of sit-ups, one minute of push-ups, and the timed 1.5 mile run. All events need to be passed. Scoring is age- and sex-normed for the 40th percentile of performance for each age/sex cohort as established by the Cooper Institute. (The issue of age- and sex-norming is discussed below.) The Institute is a non-profit health and preventive medicine organization established in 1970 by Dr. Kenneth Cooper, who popularized aerobics. Adverse impact against women was established in three administrations of the run in 2004-2006 via the Four-Fifths Rule and Fisher’s Exact Test. DOC presented evidence that when results of the run event are pooled over CO, State Trooper Trainee, and Public Safety Trainee, the women’s pass rate meets or comes close to meeting the Four-Fifths Rule. There was an expectation that the norms used would eliminate adverse impact. The plaintiff presented expert testimony that the female norms were based on a sample of women more fit than the overall female population. DOC argued that it had targeted recruitment at racial/ethnic minorities, and these minorities had poorer cardiovascular health than the general population. That could account for the unexpectedly low pass rates for women. But the court noted that DOC had not presented evidence that black or Hispanic women were being recruited; there was no evidence presented by DOC that minority women were less likely to pass than minority men. (more…)

Alabama’s proposed immigration law is reputedly one of the toughest of any state. But rather than going into effect on September 1, it’s been blocked by a federal temporary injunction. The legislation makes it a crime to knowingly harbor or transport an illegal immigrant, and it suspends or revokes the business licenses of firms who knowingly employ illegals.

The U.S. Department of Justice (U.S. v. Alabama, No. 2:11-cv-02746, N.D. Alabama, 8/29/2011), the U.S. Departments of Homeland Security and State, immigration activists, and Christian church leaders had all gone after the proposed law. Conflict was cited with the federal Immigration Reform and Control Act of 1986 and the Fourth Amendment (unlawful search and seizure), the latter pertaining the provision that law enforcement officers investigate the immigration status of people they stop.

The court issued a ruling on the case in late September.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.