Abstract
Research indicates that women and people of color have made progress in gaining entry-level jobs in government, particularly at the federal level, but still lag behind in gaining positions at the upper levels. But, can the same be said for police and fire departments which have had perhaps the worst history of employment discrimination against women and people of color? This study seeks to answer this question by examining the extent to which race, gender or ethnic discrimination suits are being filed against city fire and police departments across the country, and at what level—entry or senior. The U.S. Supreme Court’s recent decision in Ricci v. DeStefano has renewed interest in this issue.
Interestingly enough, while this study expected to find that lawsuits against police and fire departments are being filed by women and people of color in order to improve their representation in the uniformed services, it found just the opposite—the preponderance of the lawsuits filed against police and fire departments are “reverse discrimination” suits, filed by White men.
Keywords
There is a long history of race, ethnic and gender discrimination in fire and police departments across the nation. Recent experiences in Chicago and New York City—where federal courts ruled against fire departments for their discriminatory hiring practices against African Americans and Latinos 1 —suggest that the problem of race discrimination in fire departments continues to prevail and, indeed, remains entrenched. And certainly, the U.S. Supreme Court’s recent decision in Ricci v. DeStefano (2009) has sparked debate over how local governments attempt to promote diversity or prevent discriminatory practices against people of color in fire departments (see Peffer, 2009).
This study seeks to examine the extent to which race, gender or ethnic discrimination suits are being filed against city fire and police departments across the country, and at what level—entry or senior, in an effort to improve the representation of women and people of color. This issue remains a significant one for several reasons. First, these two departments were the most notorious for setting up barriers to the employment of women and people of color. Women in particular continue to lag in fire departments, where they comprise only 4.5% of this nation’s firefighting jobs (U.S. Bureau of Labor Statistics [BLS], 2011). In addition, as the Ricci case makes clear, women and people of color continue to face barriers as they seek promotion to upper-level jobs, which are more prestigious, higher paying and carry more power. These concerns have implications for the realization of social equity goals in public employment. Moreover, the inability of women and people of color to access upper-level positions in these uniformed services may serve as a barometer for the challenges they face in accessing upper-level jobs in general in the public sector. As such, this topic continues to require further exploration.
The study begins with a brief history of the problem of discrimination in the protective or uniformed services and a short review of the Ricci decision. It then examines the lawsuits filed against police and fire departments. The unanticipated findings here suggest that women and people of color are not filing lawsuits against local governments in order to improve their representation, possibly because police and fire departments may be seeking to promote diversity in their departments through affirmative action or diversity programs. Instead, reverse discrimination lawsuits are being filed by White males. Policy options for addressing this catch-22 are offered, followed by concluding observations.
Background
The Equal Employment Act of 1972 extended Title VII coverage of the Civil Rights Act of 1964 to state and local government employers. Heretofore, public sector employers, despite Reconstruction era mandates such as the Civil Rights Acts of 1866 and 1871, explicitly and openly discriminated against women and people of color. Perhaps the most glaring illustration of employment discrimination could be seen in police and fire departments across the nation. After passage of the 1972 Act, it was common for police and fire departments to set up more subtle or covert barriers to prevent women and people from gaining access to jobs in these departments or from being promoted to higher level posts. The most widespread practices included the use of minimum height and weight requirements and written and physical agility exams with no relation to job performance. Consequently, during the 1970s as well as 1980s, there was a surfeit of lawsuits by women and people of color against police and fire departments for job discrimination at the entry level as well as senior administrative levels. 2 In most cases, consent decrees or court orders required police and fire departments to end the discriminatory practices and develop affirmative action programs to diversify their ranks (Goode & Baldwin, 2005; Pynes, 2001; Riccucci, 1997, 2002).
To be sure, there has been some progress by women and people of color since 1972 in the protective services, as seen in Table 1. Comparatively, it seems that women and people of color fare better as police officers than as firefighters. For example, by 2010, women comprised 13% of police officers, but only 3.6 of firefighters. Similarly, Latinos represented 15.2% of police officers by 2010, but only 9.6 of firefighters. And at least for African Americans and Latinos, success in police departments is relatively sound, given the demographic makeup of the nation. In 2010, the breakdown of the U.S. population was as follows: Women, 50.7%; African Americans, 12.6%; Latino, 16.3%; Asians, 4.8%. 3
Percentage of Women and People of Color in Police and Firefighting, Selected Years.
Note. Because percentages are relatively small, “percent change” is not calculated.
Source (All accessed on June 14 and 15, 2011):
1972: Current Population Survey, U.S. Bureau of Labor Statistics, “Employed Civilians by detailed Occupation,” Table B-20, pp. 653-64.
1984: Current Population Survey, U.S. Bureau of Labor Statistics, “Employed Civilians by detailed Occupation,” Table 22, p. 178.
According to the Bureau of Labor Statistics (BLS), about 91% of firefighters workers represented by these data were employed by local governments. Most of the firefighters not employed by local governments worked in fire departments on federal and state installations, including airports. This may partly explain the high percentage of African-American firefighters in 1996, particularly the growth rate from 1984 to 1996.
Categorized by the U.S. Bureau of Labor Statistics as “Black and other.”
In fire departments, however, all groups are underrepresented. Women comprised only 3.6% of firefighter positions, Latinos 9.6%, followed by African Americans at 6.4% and Asians at not even 1%. Moreover, women and African Americans lost a share of firefighting jobs between 2000 and 2010, while Latinos increased their share. In short, greater progress around diversity especially in fire departments is certainly warranted.
At the higher, more senior levels in police and fire departments it becomes more difficult to measure the progress made by women and people of color, because data by rank are incomplete. Table 2 provides rank data for one time period, 2010 (comparable data for all categories are not available for earlier years). 4 Interestingly, in every job category, women represent a higher share of the senior level jobs as compared with people of color. Even in firefighting, women represent 2.3% of first-line supervisors or managers. This is somewhat surprising, in that women are so poorly represented in the ranks of firefighters. One possible explanation for this is that the designation of first-line supervisors or managers includes Fire Chiefs, who are generally appointed by Mayors, sometimes with the consent of city councils. This is not a civil servant post, and thus does not require a promotion exam or the approval of upper-level, or rank-and-file firefighters. It is important to note that given the manner in which the U.S. Bureau of Labor Statistics presents these data, it is unclear if the women are White or of color in any of the upper-level supervisory positions.
Percentage of Women and People of Color in Supervisory Positions, Police and Fire Departments, 2010 (Only Year for Which Complete Data Available).
Source: U.S. Bureau of Labor Statistics, ftp://ftp.bls.gov/pub/special.requests/lf/aat39.txt, and http://www.bls.gov/cps/cpsaat11.pdf, accessed June 15, 2011.
Data are not reported when the base is too low.
Also of interest is that although African Americans and Latinos have received some level of representation as police officers as seen Table 1, they are not well represented as first-line supervisors of managers of police and detectives. In addition, because all persons of color are so poorly represented in upper-level positions in fire departments, the U.S. Bureau of Labor Statistics, as noted in Table 2, is unable to provide descriptive data on their representation. Thus, as expected, upper-level ranks in fire departments are not very diverse.
Given that women and people of color are not well represented overall in the uniformed services, a lingering question remains: Are they continuing to file discrimination suits against the protective services at either the entry level or higher, administrative levels, especially in fire departments in order to improve their representation? The following sections address this question.
The Ricci Decision
It may be recalled that in the Supreme Court’s Ricci (2003) decision, the city of New Haven’s promotion exams for lieutenant and captain had a disproportionately harsh impact on African-American and Latino firefighters. 5 Out of 77 candidates taking the lieutenant exam, 43 were White, 19 were African American and 15 Latino. Twenty-five Whites (58%) passed the exam along with only 6 African Americans (32%) and 3 Latinos (20%). Because the top 10 scorers were White, and there were only 8 vacancies for lieutenant, under the rule of three, no African Americans or Latinos were eligible for promotion.
Forty-one applicants took the captain examination, of whom 25 were White, 8 were African American and 8 Latino. Of the 22 candidates who passed the exam, 16 (64%) were White, 3 (38%) were African American and 3 Latinos (38%) passed. There were 7 Captain vacancies, but under the rule of three, no African Americans and at most 2 Latinos would be eligible for promotion.
In effect, the city refused to certify the results of the exams. This, in turn, prompted a disparate treatment lawsuit filed by White firefighters as well as one Latino firefighter who passed the exam. The U.S. Supreme Court majority ruled against the city opining that there must be a “strong basis in evidence” that the exam did, in fact result in disparate impact before it could rely on race-based decision making. 6
Parenthetically, the dissent in Ricci takes great issue with the majority’s application of the strong basis in evidence standard, arguing that the “Court’s standard, drawn from inapposite equal protection precedents, is not elaborated. One is left to wonder what cases would meet the standard and why the Court is so sure this case does not” (Ricci, 2009, p. 2700). The dissenting opinion, written by Justice Ginsburg, also argued that
the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” . . . That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes. (Ricci, 2009, p. 2690)
In the end, the dissent stated that “the record solidly establishes that the City had good cause to fear disparate-impact liability” (Ricci, 2009, p. 2707). 7
The Ricci decision renews interest in the status of women and people of color in the uniformed services. For example, are they filing discrimination suits at the entry level or senior levels? Or, are local governments, similar to New Haven, seeking to promote diversity in police and fire departments through affirmative action or diversity program?
Lawsuits Filed Against Police and Fire Departments
Table 3 presents the results of a Westlaw computer search for employment discrimination suits filed against police and fire departments between 2000 and 2011. 8 Most interesting, contrary to expectations, the preponderance of the lawsuits filed is based on “reverse discrimination” 9 claims (32 out of 35 lawsuits). Only three discrimination suits based on hiring practices were filed by persons of color against fire departments. None were filed against police departments. The remaining cases for both departments were reverse discrimination claims against local governments for their diversity or affirmative action efforts to hire or promote women and persons of color. It should be stressed that the data presented in this table do not reflect the instances where race, gender or ethnic discrimination is perceived by an individual, but no formal complaint is filed. Nor do the data reflect the cases that are filed with the relevant federal, state or local administrative agency (e.g., the U.S. EEOC; state or local Commissions or Divisions of Human Rights, etc.), 10 and never make their way to the court system.
Number of Employment Discrimination Suits Filed against Police and Fire Departments.
One case involves transfers (see Lomack v. City of Newark, Appendix).
Ricci case.
The Appendix provides further details on each of the discrimination lawsuits filed against police and fire departments. It should be noted at the outset that the cases are placed in an Appendix (as supplemental material) instead of a table primarily because the cases are extraordinarily unique. There are very few common threads running between or among the cases. An examination for commonalities within courts, between courts and among courts fell short. Even judicial decisions around the soundness of local governments’ actions (e.g., to use race as a classification) are so unique that only a few examples can be offered, as seen below. Notwithstanding, the Appendix offers useful information for those interested in further research in this area.
One interesting finding from the Appendix is that despite the lack of progress made by persons of color and women particularly in fire departments, they are not filing lawsuits. Consider, for example, the case of New York City’s Fire Department. The first woman, Brenda Berkman, was not hired until 1982, after she filed a class-action suit against the city for gender discrimination (see Berkman v. New York City, 1982). Today, of the city’s 11,500 firefighters, only 31 are women (Fire Department, New York City [FDNY], 2010).
It should be noted that the Westlaw search revealed one case, not captured in Table 3 or the Appendix, which entails gender discrimination of a female firefighter (but not in hiring or promotion). Mangum v. Town of Holly Springs, North Carolina (2008) involves the town’s hiring of its first woman firefighter in 2006. Before Melanie Mangum was offered the position she was told by several firefighters that she needed “‘to make sure’ she knew what she was ‘getting into’ before accepting the job as a firefighter” (Mangum, 2008, p. 441). One firefighter said that “he was not comfortable with [her] as a female firefighter and that he would refuse to engage in a fire suppression service call with [her] on his team” (Mangum, 2008, p. 441). Mangum resigned after eight months on the job and filed a lawsuit claiming gender discrimination under Title VII in the form of a hostile work environment, as well as disparate treatment (unlike newly hired men who were assigned to a newer, larger fire house, Mangum was assigned to a smaller much older one, which had fewer opportunities for training and advancement). Mangum’s lawsuit also claimed retaliation in violation of Title VII (when she complained about harassing behavior to the fire chief, the Town Manager and the human resources director, the harassment became more frequent and pronounced). The federal district court ruled against Mangum on the hostile environment claim, but for her on the claims of disparate treatment and retaliation.
The case law presented in the Appendix also suggests that local governments are making some efforts, either voluntarily or through consent decrees, to promote diversity in the ranks of police and fire departments, but continue to face resistance mainly from White males who perceive they are being treated unfairly, à la Ricci v. DeStefano. And, as the disposition of the cases in the Appendix shows, some reverse discrimination suits prevail, as in Ricci, others do not, primarily on the grounds of the soundness of a city’s promotion and hiring decisions that take racial, ethnic or gender classifications into account. 11 For example, the courts are unwilling to allow local governments to use dual lists that separate test scores by race and ethnicity (see, for example, Dean v. City of Shreveport, 2006; Biondo v. City of Chicago (2004). They are also unwilling to allow local governments to promote persons of color in the uniformed services, when those decisions appear on their face to be capricious (Nugent v. City of Houston, 2001; Dumont v. City of Seattle, 2009).
In determining the soundness of affirmative action efforts, the courts, as seen in the Appendix, will also apply the strict scrutiny test. The two prongs of this Constitutionally driven test ask whether (a) the program has a compelling governmental interest (e.g., to redress past discrimination) and (b) it is sufficiently narrowly tailored to meet its specified objectives (i.e., is there an alternative plan or program which could be employed that does not classify people by race). 12 As late as 2003, 13 the U.S. Supreme Court upheld in Grutter v. Bollinger, 14 under the Equal Protection Clause of the Fourteenth Amendment, an affirmative action admissions program whose goal is to promote diversity, on the grounds that the U.S. Constitution permits the “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body” (Grutter, 2003, p. 307). 15
As seen in the Appendix, the U.S. Court of Appeals for the 8th Circuit, for example, in Kohlbek v. City of Omaha (2006, p. 556) applied the strict scrutiny test to determine the constitutionality of the city’s affirmative action plan which resulted in the promotion of minority firefighters to fire captains over Whites. In ruling against the city, the court stated that its “affirmative action plan, as it applies to promotional decisions, is not narrowly tailored to further the goal of remedying past discrimination.”
Another reason for the variance in the outcomes of the reverse discrimination lawsuits can be attributed to differing interpretations by courts as to whether there was intent to discriminate against Whites or White men. For example, in Bolton v. City of Bridgeport (2006, p. 256), a federal district court in Connecticut found that there was “simply no evidence of discriminatory motivation or intent” by the City of Bridgeport when it did not hire 18 White males for firefighting positions. In Bourdais v. New Orleans City (2007, p. 300), however, the Fifth Circuit Court of Appeals in upholding the reverse discrimination claim, found that race was a “substantial or motivating factor” in the city of New Orleans’ decision to hire African American firefighters rather than Whites.
One final important observation is that some uniformed services, as seen in the Appendix, are still under consent decrees to hire or promote people of color. And despite early, favorable decisions by the U.S. Supreme Court, some lower courts have more recently been willing to strike down their continued use. It may be recalled that the High Court had, in the past, upheld the legality (under Title VII) and the constitutionality of consent decrees and court-ordered affirmative action plans under certain conditions. 16 For example, in U.S. v. Paradise (1987) the U.S. Supreme Court upheld the use of a court-ordered affirmative action plan to remedy hiring and promotion discrimination against African Americans in the Alabama Department of Public Safety. The Court ruled that the plan met the strict scrutiny test (i.e., that it was sufficiently narrowly tailored and intended to rectify past discrimination). 17
There are six lower court decisions involving cities’ efforts to meet the obligations of consent decrees; in two cases, courts upheld their use (see Sullivan v. City of Springfield, 2009, and Thigpen v. Bibb County, Ga., Sheriff’s Dept, 2000, 2002). In four, the courts struck down their use.
18
A review of the cases indicates that lower courts are unwilling to uphold consent decrees unless some statistical evidence of racial disparities or inequalities is offered. For example, in Vivenzio v. City of Syracuse (2010, p. 107), the city, in accordance with a consent decree entered into in 1981, attempted to increase the hiring of African Americans in its fire department. The district court in Vivenzio ruled for the city, but the U.S. Court of Appeals for the Second Circuit reversed, and struck down the use of the consent decree. It ruled that
. . . the City did not adduce any evidence as to the percentage of African Americans in its labor pool. Indeed, the City’s Mayor and the Chief of SFD, in their deposition testimony . . . seemed unaware that the labor pool was the Consent Decree’s stated frame of reference. The City having made no showing as to the racial makeup of its labor force at the time of the hiring decisions challenged here, its claim of reliance on the Consent Decree was entirely inadequate to show a legitimate nondiscriminatory reason for the challenged hiring decisions.
In another case, the appeals court upheld the use of a consent decree in the hiring of police officers. In Sullivan v. City of Springfield (2009, p. 7) the U.S. Court of Appeals for the First Circuit held that police “officers’ speculation that there may have been a causal link between officers being laid off and racial classification of police officers, without supporting evidence, was insufficient.” The case law seems clear, then, that certain managerial actions are necessary to ensure the continued use of consent decrees—concrete, statistical evidence of racial inequities or disparities.
The issue of ongoing obligations under consent decrees to promote diversity is certainly a topic for further research. For example, many of these consent decrees were entered into in the 1970s and 1980s when city officials, rather than admitting discrimination in their uniformed services, agreed to court supervised arrangements to increase the hiring or promotion of people of color, and sometimes women. The question then is why are they still in effect? Is the problem of discrimination still paramount? How effective have consent decrees as well as court orders been in diversifying police and fire departments and at what level?
In sum, this review of case law suggests, from a management standpoint, that employers face a catch-22: attempt to increase the representation of women and people of color in police and fire departments but be prepared for lawsuits filed by White men who feel that their rights have been violated.
Policy Options
Today, employers are placed in a precarious situation, as evidenced by the Ricci ruling as well as the court decisions presented in the Appendix. As local governments seek to promote diversity or attempt to avert job discrimination complaints by women and people of color in their bids for employment or promotions in police and fire departments, their actions may precipitate suits by White firefighters. So, in the post-Ricci era, if a local government is seeking to diversify its uniformed service ranks—either voluntarily, under obligation of consent decree or to stave off a potential lawsuit by women and/or people of color—what managerial or policy actions might it take, particularly if it wishes to avoid a reverse discrimination lawsuit? Peffer (2009, pp. 408-409) offers the following important guidance:
The one proactive step that employers can take is to review their testing procedures and the business validation of those procedures. Employers must ensure that employment practices and procedures, such as exams, are unbiased, fair, and, above all, job related. Furthermore, employers should research all the alternatives available to them and avail themselves of the best one . . . Finally, employers should remember that race is not the only consideration when looking at practice and procedures—Title VII also prohibits discrimination on the basis of gender, color, religion, and national origin.
Another viable solution would be to provide a battery of tests for promotion to upper-level jobs. Oral exams, for example, are critical, and could be weighted more heavily than written exams, as some cities have called for (e.g., Bridgeport, Connecticut). Of course, unions have sometimes set up roadblocks here, as in New Haven, where the firefighters’ union contractually negotiated that written promotion exams be weighted higher than oral exams. Some civil service laws may also require written exams, which present another hurdle.
If written exams are necessary, local government may revert back to practices they relied on in the 1980s to help recruit and hire women and people of color as police officers: coaching and tutoring (see Panzarella, 1986). Police and fire departments genuinely seeking to diversity their ranks could offer free tutoring or coaching to all police officers or firefighters on taking written exams for promotion or even entry-level jobs in the uniformed services. For entry-level firefighting, in-house training of women to prepare for physical agility tests is another strategy.
Other assessment tools such as computer simulations or group exercises might also be deemed more important than written exams. These types of arrangements may facilitate an employer’s goal to diversify its upper echelons, while staving off possible litigation. Indeed, a recent study by the U.S. Merit Systems Protection Board (U.S. MSPB, 2009), found that, although not used extensively in the federal government, job simulations are associated with lower rates of adverse impact, have higher predictive ability, and are more likely to be perceived as fair and job related among job candidates.
In addition, affirmative action and diversity programs are also important policy tools employers should continue to consider. However, if these programs are to stave off reverse discrimination charges, the programs must adhere to the exacting legal standards, such as those of the strict scrutiny test, as discussed earlier. Also, as the case law in the Appendix made clear with respect to the continued use of consent decrees, local governments must be able to produce concrete, statistical evidence of racial inequities or disparities.
Conclusion
Based on the analysis presented here, there is still considerable room for improvement in the representation of women and people of color in the uniformed services. Women still lag behind in both police and fire departments, and people of color are particularly underrepresented as firefighters. They have also made few inroads into the ranks of lieutenant or captain in fire departments. This study sought to determine whether women and people of color are filing discrimination suits in an effort to make employment gains in these departments. But the findings suggest that they are not; rather, local governments are making some effort to improve their representation. As a result, White males are filing reverse discrimination suits against local governments.
As discussed in this article, it seems clear that employers are challenged to develop programs and policies that would both improve the representation of women and people of color in the uniformed services, and at the same time stave off discrimination suits by White males. A number of options were offered here. For example, testing procedures and affirmative action or diversity programs—even those developed pursuant to consent decrees—that are able to withstand scrutiny under Title VII and the Constitution are critical if police and fire departments seek to achieve diversity and improved representation of women and people of color at all levels. Certainly, future research on this topic is warranted, especially if there is an interest in tracking the progress made by women and people of color in the uniformed services over the next decade as well as beyond.
Footnotes
Appendix
5. Police Department: Suits Filed on Basis of Race, Challenging Promotion Practices, 2000-August 2011
| Case | Court | Synopsis | Disposition | |
|---|---|---|---|---|
| 1. Petit v. City of Chicago (2003) | U.S. Court of Appeals, 7th Circuit | Eighty-two White officers challenged promotion, which used standardized test results and considered race/ethnicity. This practice arose from 1980s plan to increase underrepresented officers. Officers filed suit under Title VII, claiming “adverse impact.” | Court found procedures legal, in accordance with Grutter and were attempting to minimize harm to members of all racial groups. | “Reverse discrimination claim” |
| 2. Reynolds v. City of Chicago (2002) | U.S. Court of Appeals, 7th Circuit | White officers filed suit challenging the promotion of 20 African American, Latino, and female officers to lieutenant/captain under Equal Protection Clause. These promotions in rank were done in 1990-1991 and based on a policy that allowed minority officers to be promoted out of order for the sake of affirmative action plan. City argued its numbers of Latino lieutenants and captains were negligible, and promotions were necessary to increase trust in officers among Latino communities. | Court decided there was an imperative need for affirmative action in increasing trust and efficacy of police in Latino communities. The Court ruled the city proved its decision to promote one Latino sergeant out of order was justified, and “was the smallest increase it could have made.” | “Reverse discrimination claim” |
| 3. Majeske v. City of Chicago (2000) | Court of Appeals, 7th Circuit | Eighty-three White police officers filed equal protection claim against the city claiming they were not promoted because of its affirmative action plan. | District Court and Court of Appeals both decided affirmative action plan was constitutional. | “Reverse discrimination claim” |
| 4. Thigpen v. Bibb County, GA, Sheriff’s Dept. (2000, 2002) | Court of Appeals, 11th Circuit; U.S. District Court, GA Middle District | Two White officers claimed department’s policy requiring 50% of rank promotions be awarded to African Americans violated their equal protection of laws guaranteed by the 14th amendment. This policy was implemented after litigation in 1978 resulted in a consent decree and promotion goals. | Reversing the district court, Appeals Court allows White officers to challenge affirmative action consent decree. Court remanded the case, asking district court to determine constitutionality of consent decree. District court found that the consent decree did not violate equal protection rights, but the judge did settle with the defendants and awarded them promotions. | “Reverse discrimination claim” |
| 5. Alexander v. Fulton County, GA (2000) | Court of Appeals, 11th Circuit | Eighteen employees of sheriff department filed suit under Title VII, claiming pattern of discrimination against Whites in promotion of ranks. | Court found evidence to support failure to promote claims, discriminatory discipline claims, discriminatory transfer claims, and discriminatory reclassification claims for nine employees. | “Reverse discrimination claim” |
| 6. Jones v. City of Springfield (2009) | Court of Appeals, 7th Circuit | Alan Jones, White male, was next in line for promotion on eligibility list; list expired and city created a new list. Jones was promoted two years later and filed suit under Title VII claiming if he had been African American, he would have been promoted sooner. City argued it had no vacant positions for promotion before Jones was promoted. | Court ruled in favor of city, stating there was no evidence a vacant position existed for which to promote him to earlier in the two years. | “Reverse discrimination claim” |
| 7. Cotter v. City of Boston (2003) | Court of Appeals, 1st Circuit | Seven White officers filed suit when they were not promoted, but three African American men were, claiming their constitutional rights to equal protection were violated. | The Court agreed with the district court in that the City’s race conscious decisions were narrowly tailored, passed strict scrutiny, and thus were constitutional. The court still granted the White officers immediate promotion. | “Reverse discrimination claim” |
| 8. Nelson v. City of Flint (2001) | District Court, E.D. Michigan | Two White men passed for promotion three times in 1996, 1997, and 1998 filed suit under Title VII stating it was because they are White and male. The men were promoted in 1998. | The Court dismissed the two White men’s claim because they failed to “make out prima facie claims of reverse discrimination.” | “Reverse discrimination claim” |
| 9. Barnhill v. City of Chicago, Police Dept. (2001) | District Court, N.D. Illinois | Four White men filed suit under Title VII and the Equal Protection Clause of the 14th challenging the city’s promotion policy. The men argued the merit component resulted in disparate impact against White males. | Court found, after statistical analyses, the City’s promotion policy was legal and that the White men had no substantial evidence to support their claim. | “Reverse discrimination claim” |
| 10. Klawitter v. City of Trenton (2007) | Superior Court of NJ: Appellate Division | Klawitter, a White female officer, filed a claim against the city alleging an African American male was unlawfully promoted in her place. | Jury awarded Klawitter US$79,538 as compensation for emotional distress damages. The judge then awarded Klawitter US$21,993.43 in prejudgment interest and US$33,846.45 in attorney’s fees and costs. The City’s request for reconsideration of damages and amounts awarded was denied by Superior Court, which reaffirmed the damages the jury awarded. | “Reverse discrimination claim” |
| 11. Brackett v. Civil Service Commission (2006) | Massachusetts Supreme Judicial Court | Seven White male police officers filed suit alleging they were unlawfully bypassed for promotion on the basis of race and gender because it promoted six racial minority or female officers. This was done in accordance with the city’s rule (Rule 10) on civil service and race, color, national origin, and sex. Suit was filed to determine whether Rule 10 was violating Title VII of the Civil Rights Act. | The Court found Rule 10 to be valid, constitutional, validly enacted, procedurally satisfied, and constitutionality sound. | “Reverse discrimination claim” |
| 12. Jefferson County v. Zaring (2002) | Kentucky, Supreme Court | Upon expiration of its consent decree, the Jefferson County Police Department was using the rule of three for promotion of officers. They soon found the underrepresentation of persons of color when 35 White males had been promoted and 0 African Americans. The county began using “banding” as their affirmative action plan to increase representation of people of color. Two White men filed suit because county promoted two African American men over them, and they all belonged to the same band, making them all equally qualified. Chief Jones admitted he promoted the two African American men because it was the first time in his tenure of four years he was able to promote an African American candidate and wanted to boost morale in the county. He also argued the four candidates were equally qualified. Suit filed challenging whether practices violated Title. | Court sided with the County, stating there is no evidence to suggest banding is an invalid affirmative action practice and was implemented to correct the record of 4 years of 0-35 in favor of White males. | “Reverse discrimination claim” |
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.