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Changing city law will be easier than complying with federal employment law

Published: Wed, January 6, 2010 @ 12:00 a.m.

Changing city law will be easier than complying with federal employment law

Youngstown City Council will be asked tonight to pass legislation that will permit the city to waive the “rule of 10.” It would allow the mayor to make appointments to the fire department from a list of all applicants who got a passing grade on the most recent Civil Service test, not just from the 10 highest scorers.

The new system replaces the city’s practice of a generation in maintaining two eligibility lists, one for minority candidates and one for nonminorities.

It is a reflection of changing times that the bifurcated eligibility lists that were the creation of a federal court as a response to what was then viewed as the unconstitutional exclusion of minorities from public employment are now themselves seen as unconstitutional. The dual lists grew out of a time when affirmative action was seen as a reasonable response to the systemic underrepresentation of minorities in public employment. In recent years, the Supreme Court of the United States has turned affirmative action policies on their head, finding that nonminorities — principally white males — were being discriminated against when minority men and women received preferential treatment in matters of educational opportunities, employment and being awarded public contracts.

Youngstown not alone

The death knell for the minority and nonminority lists was sounded by the Fifth Circuit Court of Appeals in a 2006 case brought by white firefighters against the city of Shreveport, La. Like Youngstown, Shreveport adopted two lists in response to a federal court decree. But the appeals court found that while there was adequate evidence of past discrimination to support the remedy in 1980, there was insufficient evidence to support a quota system today.

The court prohibited the use of separate cut off scores for different classes of applicants, but it did not bar a city from seeking to remedy the effects of past discrimination in hiring. It suggested that any plan could not require the hiring of unqualified minorities or pose an absolute bar to nonminority employment.

So if city council gives the Mayor Jay Williams wider latitude in hiring from the entire pool of applicants who passed the test, rather than from only the highest 10 scores, it will be Williams’ responsibility to work within a rather narrow band that separates legitimate attempts to avoid returning to a day when a city with a high black population had only a handful of black firelighters and the unconstitutional mistreatment of nonminority applicants.

The almost-inevitable suit

Regardless of what council does and regardless of who is hired, Youngstown — like New Haven, Conn., in a prominent reverse discrimination case involving the promotion of firefighters — will probably be sued by someone.

If no minority applicants are hired, a discrimination suit is likely. If demonstrably less qualified minority applicants are hired over nonminorities, a discrimination suit is likely.

It will fall to Williams, acting on the advice of the city law department, to pursue a hiring process that can be defended in court. Hiring the best applicant involves more than looking at test scores, and a case could be made for hiring one applicant over another if they are separated by a few or even a dozen places on the scale. But defending the hiring of an applicant who scored, say, a 75 over one who scored 95 could be difficult.

Regardless of how the numbers game plays out, having a diverse public payroll is a legitimate goal. But some of the responsibility for achieving that diversity falls on the minority community itself. Those who value diversity most highly should be pursuing a proactive agenda in which minority candidates for Civil Service jobs are recruited, beginning at an early age in schools and colleges. Tutoring programs and assistance in studying for the tests given prospective police officers and firefighters should be held at community centers and churches, with the assistance of minority employees and retirees from the departments.

We’ve suggested that before; but this seemed an appropriate time to repeat it. We’ll doubtless say it again, until the day arrives that it is no longer necessary to say.


1RogerClegg(6 comments)posted 6 years, 6 months ago

Reasonable people can differ about the extent to which qualifications other than test scores ought to be weighed and how. But there is no reason to weigh skin color or national origin -- and doing so is not only unfair and divisive, it's illegal. If the city engages in such discrimination, it is indeed asking for a lawsuit.

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2Silence_Dogood(1677 comments)posted 6 years, 6 months ago

"It would allow the mayor to make appointments to the fire department from a list of all applicants who got a passing grade on the most recent Civil Service test, not just from the 10 highest scorers."
This is the most important paragraph of the entire storyline.
There was a day when you were required to be in the top three on an active civil service list to be hired, Then they changed it to the top ten. After that they created two lists, one list for white men and another list for everyone else. One needs to ask the question, why were white men singled out? This can only be looked upon as discrimination no mater how many hoops you try to jump thru and intellectual gymnastics you try to perform when all is said and done you are discriminating against a group of people. And NO it is not "reverse discrimination ", plain and simple it is DISCRIMINATION.
In the not to distant past Youngstown had the misfortune of having one of it's Firefighters shot in of all places a house were drugs were being used and or sold ( the details escape me), but the point is this person was hired off of the "other them white male list". He would not have made it to the top three or the top ten for that matter. What the City did was LOWER it's standard and for what end, to get a lesser qualified Fireman. Does this make sense to any thinking person, remember these are the people that we all rely upon to save our LIVES.
Also in the not to distant past the local Civic watchdog Ms Maggie Lorenzi called out Mayor Jay Williams about his hiring of well over 100 people to the City payroll's. The Mayor denied this on the local radio show, but with her ever vigiliant nature she called him on his statement and offered to read him the list of names on the air if need be .She got the list I believe from the Civil Service office thru the freedom of information act.
What is the point of all this you might ask? It would seem to me that this Mayor is trying like he!! to circumvent any and all laws that have been enacted over the years to keep politics and political favoritism out of the hiring process.The whole reason for the Civil Service Department in the City Government is to prevent the gaming of the system by these Politicians. By removing the "top ten provision" we are in essence putting a bunce of four year old's in a candy store and letting them eat to their hearts content. We all know what the ramifications of an act like that is, in no time flat you will have a sick child on your hand. In this case it will not be a child that will be sick but a city that is sick, disfunctional and in need of serious help. In short City Council needs to be very careful what it does tonight for the effects and unintended consequences will be around for a long time

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3howardinyoungstown(591 comments)posted 6 years, 6 months ago

The private sector uses many criteria to determine the best applicant for a position and that may include a test score, but it is never exclusively based on a test score.

I see no reason why any government should do differently; especially for jobs such as police and fire protection which rely on so many diverse skills and the ability to make rational judgement calls in times of extreme stress.

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