As far as I can tell, the DoJ said the test is discriminatory, and required that Dayton change it’s test. When Dayton changed it by lowering standards, DoJ saw that it was no longer discriminatory, and approved the change on that basis.
But this is not the same thing as ‘requiring,’ ‘forcing’ or ‘ordering’ Dayton to lower it’s standards. Presumably, if Dayton had raised it’s standards and by doing so had caused the test to stop discriminating, DoJ would have been fine with that. And presumably, if Dayton had instituted an entirely different test that didn’t discriminate, DoJ would have been fine with that as well.
But do I presume too much? Is there something somewhere showing that DoJ did in fact literally order, require or force Dayton, explicitly, in so many words, not just to change the test but to lower the standards on the test?
Improperly structured tests can contain significant racial bias.
For an extreme example:
Lets say a department really wanted spanish speaking bilingual officers. So all advertising, instructions, and testing materials were only produced in spanish, and using uncommon versions of words and or idiomatic usages rarely seen outside of hoseholds full of native spanish first langage speakers.
You could say that changing the test would be reducing the standards, but at the same time it is heavily slanted towards hispanics.
What I’m looking for is support for the claim that the DoJ explicitly required Dayton to lower its standards.
If the DoJ required Dayton to change its test, that’s not the same thing as requiring Dayton to lower its standards. I’m looking for support for the claim that what the DoJ required was specifically and explicitly that the city lower its standards.
If I’m not mistaken, this is the consent decree (PDF) entered into by the Dept. of Justice and the City of Dayton. The actual injunctions agreed to by the city start on page 3. So far as I can tell, the city was enjoined from using the old test, and the feds had to approve any new selection procedure proposed by the city. But it’s possible that there were other filings & amendments since then — the date of the consent decree I linked to is 2009.
Depends. I recall a Cnadian National Railroad case where the repair yards had for years not hired women because they rarely could pass the tests. One example - the applicant had to pick up a full-sized railroad wheel and carry it a certain distance. In the discrimination lawsuit, it came out that the standard procedure in the repair yard was that one person *never *picked up a wheel. when they had to be moved, a rod was stuck through the center and two people carried it. So, other than weeding out those with lower upper body strength, what was the purpose of this requirement?
The key is that requirements must be relevant to the job, and not have the side effect of weeding out certain protected groups without cause.
The article makes no mention of the test contents and how they discriminate or are relevant to the job. After googling for a while I find almost every article appears to be simply a re-write of the news release. None talk about the test, its contents, or why the difference in scores is relevant:
So it appears that without DoJ intervention, or any attempt at affirmative action, news reporting has become a dumbed-down profession. (Most likely due to cost-cutting… why hire the best when the rest are cheaper?) Following that trend, the opinionators seem to be divided between “DoJ ordered” and “Obama ordered…” Because Dayton hiring is obviously something that Barrak is personally involved in…
First, the scores were adjusted on a curve, according to one article. Second - a minor adjustment in writing ability that still requires 58% for reading comprehension, not 66% and 63% not 72% on “situational judgement” and “writing ability”? Any test that has the potential for “situational” suggests judgement calls and the real answer may be open to debate. Meanwhile, you’re also marking or writing talent?
Another article also mentioned that the rest of the scoring was now also including oral interview assessments in case writing was an issue. I think for situational judgement answers, I would want to explain my choice rather than have my “what would do if…” marked against someone else’s strict answer key.
So - hype and hysteria, a test which may or may not reflect the ability of candidates to actually be police officers, or perhaps their ability to perform in middle-class high-school test situations.
If the guy’s illiterate or stupid, no matter what race, he’s not going to get 58% / 63% anyway.
Let’s say that my test contains basic addition and subtraction problems. At the end 83% of white applicants and 65% of minority applicants pass the test. Was my test discriminatory? The DOJ would seem to say yes, but how so? It was just basic mathematics.
It’s discriminatory by definition–a discriminatory test is one that has disparate impact on different groups.
But it would be a mistake to think the test should be changed, necessarily, in the case you describe. In the case you describe, if it can be shown that basic addition and subtraction skills are necessary to the job being tested for, then the discriminatory effect of the test is justified by “business necessity” and need not be changed.
(If basic addition and subtraction can’t be shown to be necessary, then legally the test can be required to be changed because of its discriminatory effect.)
I think a lot of people here “discriminatory” and immediately understand it to mean “unjustifiedly discriminatory.” But that’s not the right way to think about it.
In the Dayton case, it seems clear that the test originally had a disparate impact, the city couldn’t or wouldn’t provide a “business necessity” defense for that disparate impact, so they had to change it–and in order to change it, they chose to make a test with lower standards. Since the test with lower standards was no longer discriminatory, the DoJ and court signed off on it. Not because it had lower standards but because it was no longer discriminatory. Then the city mischaracterized this as being “forced to lower standards.” No–they were forced to stop discriminating, and chose to stop discriminating by lowering standards.
In other words, a title xii violation occurs when there is a hiring policy with disparate impact on a protected group unless the policy can be justified by reference to business necessity.
It’s that “unless” clause that people seem to overlook when they attempt to assess the consequences of the law. The law doesn’t force standards to be lower–it explicitly allows for standards to justify discrimination. When it comes to standards, the law says the opposite of what a lot of people think/are told it says.
I understand the law, but I wonder why the government takes the position that disparate impact is per se discriminatory for unlawful reasons. Let’s say that basic math is not a job requirement, but as a business owner, I see mathematical knowledge as indicative of overall intelligence and what I look for in an employee. That might be ridiculous, but hey, so are all of the other stupid job interview questions.
So, I have my math test for my job with nary a racist thought in my head. In fact, when you break down the numbers, if you correct for socio-economic factors, all race groups score equally, it’s just that more minority applicants were poor than white applicants.
I have a test that’s fair on its face, not motivated by racism, is no more silly than any other requirement, but it is no good simply because not enough minority applicants can pass the test?
So the DOJ makes me change it. What do I change it to? My first test was objectively fair. How do I know that my new test that I spend money to design won’t have similar disparate results? Statistics show that minority groups do worse on tests than white counterparts. I could spend money to change the test, but really the easiest, surefire and best way to get the DOJ off of my back is to simply lower the standards on the first test.
In a way, this does implicitly force lower standards.
If it’s not a job requirement, and it has a disparate impact, then regardless of your intentions, you’re doing a bad thing, so prima facie it’d be a good thing if you stopped.
I don’t understand the objection. What’s wrong with this?
Above you said it’s not objectively fair–that it has a disparate impact, for reasons that have nothing to do with the nature of the job.
Okay, but think of a typical job and how many factors go into an employment decision that can hardly be deemed “necessary” for the business. If I muck up the “What is your greatest weakness?” question, does that mean that I wouldn’t make a good plumber? What if more minorities muck up that question? The government would take the position that you can’t ask that question anymore, even though its not motivated by any racial animus at all.
The same could be applied to all questions: “Why do you think you are a good fit for this position?” The real answer is that you don’t care if you are the best fit. You want them to hire you so you can earn money. But the point of the question is to see how you handle your response. Is the ability to think on your feet and make up lies necessary to work as a ditch digger? If not, then out goes that question.
The reason why my answer to the OP is “Yes” is because in crafting a “solution” to the DOJ problem, you have a limited amount of options. You didn’t try to discriminate to begin with, and now you have to come up with a way not to discriminate. It’s obvious that it didn’t work the first time, so you can spend a bunch of money trying to craft a solution that works well, or you can just lower standards.
It would be like the government saying that you can either get rid of your pool or pay $125k to prevent seepage into the ground water. You give up your pool. The government didn’t “force” you in so many words, but the actual effect of the policy was that many people gave up pools. Just like how businesses simply lower standards.
Motivations are irrelevant, AFAICT. I’m not sure why you’re bringing them up.
If the question turns out to have a disparate impact, then I don’t see how you could argue there’s not something prima facie wrong with asking the question. The question affects black people negatively because they are black. In the absence of a business necessity justification, how can such a question be justified at all?
Yes. If the question has a disparate racial impact, then out goes the question. Can you explain what is supposed to be wrong with that?
In the pool case, you’d be lying if you said the government forced you to do it. You’d need to say something like “they didn’t leave me any meaningful choice”–and then you’d need to explain why. $150,000 sounds like a pretty good argument there.
Similarly, in the Dayton police case, they’re lying if they say the government forced them to lower standards. If what you’re saying is accurate, they need to say “they dind’t leave us any meaningful choice,” and hten explain why that is so. I have seen no such explanation. Instead they have simply misleadingly said 'they forced us to do it" and left it at that.
From my quick reading of the story, it appears the candidates for police positions must take a generic Dayton Civil Service Exam. As far as I can tell, the exam has not changed. They have lowered what they consider a “passing score.” This course of action was approved by the DOJ. It does not say this particular remedy was imposed by the DOJ. Presumably, they could have changed the exam in a manner acceptable to DOJ.
The problem with the argument that Dayton chose not change the exam in a way that would be acceptable to DOJ is that it assumes there would be another way to change it that is acceptable. Civil Service test are intelligence tests and all intelligence test are correlated. Local governments are caught in a bind. They must give tests for hiring and promoting because of union contracts and civil service laws designed so that government jobs are not handed out to political supporters but are given to qualified people. However they have to use tests that do not have a disparate impact. The problem is that no such tests currently exist. So Civil Service laws force them to have tests and discrimination laws outlaw the currently available tests.
Thus the only solution for most governments are to lower the bar so that the tests do not have a disparate impact. Thus even though the DOJ does not tell local governments to lower the standards they force the standards to be lowered.
What I recall from other cases: It’s very difficult to correlate tests with actual business necessities. It’s often difficult to establish that the standards had been required or necessary in the past, or for all current employees.
As to your initial question, the government, in effect, forces people to do a lot of things by removing reasonable alternatives. It depends on your definition of force.
All I came to say that when I lived in Dayton in the 90’s the standards for police officers was already pretty low. :eek: I had one put a loaded gun to my head for not using my turn signal at a stop sign in a residential neighborhood even. :mad: I shutter to think about even lower standards.