The U.S. Supreme Court has now issued its opinion in the incendiary case of the New Haven, Conn., firefighters.
The nation's top court came down on the side of the 20 mostly white firefighters who, claiming reverse discrimination, filed suit after not securing promotions despite attaining the highest scores on a promotions test test on which all African American and all but two Hispanic firefighters received a poor score.
Was justice served? We think not, but not for the obvious reason. Polarization rather than greater fairness will rule the day, and this would have been the case had Court had voted 5-4 for the City of New Haven, not the firefighters.
The case itself, while raising complex questions about workplace bias, involved civil rights law fashioned in an era that saw far more blatant discrimination. Back then, the urgency of segregation and widespread, institutional racism did not allow for a thoughtful undertaking of more nuanced forms of bias. Now, subtle bias has become more insidious.
Discrimination law considers how people are treated solely due to their membership in a particular group--race or gender or national origin or religion. It gives short shrift to a careful analysis of how being part of said group can impact such factors as our self esteem, our life experiences, the resources we enjoy or don't receive, our fears and what we believe to be our entitlements.
We applaud the city of New Haven for critically examining the test results and wondering why so few firefighters of color performed well. Although most of us believe tests and other performance indicators to be accurate measures of qualifications, the truth is they often can be ridden with subtle bias.
Our research bears this out. When the Level Playing Field Institute conducted a landmark study of 19,000 professionals and managers in 2007 to determine the role of bias in voluntary employee turnover, we found that people of color were three times more likely to leave due solely to unfairness.
Hundreds of stories poured into the Institute about the failure of managers to recognize employees' abilities. An Asian attorney wrote about the partner who referred to her typos, even minor ones like whether a term should be capitalized, as an issue with the English language. An African American MBA graduate compared notes with her fellow classmates after interviews to learn that she was the only one being asked about diversity; her classmates, in contrast, received substantive case study questions. Most of their experiences wouldn't fall under current discrimination law.
The problem goes beyond employment measures. The SAT, accepted as the measure of how a student will perform in college, turns out instead to be the best indicator of one's family income. Stories abound of how biased test results and measures, rather than hard work and merit, can give some an unfair advantage over others.
Take, for example, an immigrant high school student who studied night and day for the SAT exam without the benefit of prep courses or parents who spoke English. For months, she memorized every word she came across. Yet, when asked in class to answer an analogy question using the word "gazebo," she drew a blank.
The student next to her answered the question quickly and correctly. That student didn't learn the word from a vocabulary sheet; she had a gazebo in her backyard growing up, she divulged later, just like almost all of the houses in her neighborhood. Despite such hurdles, that immigrant student would go on to become a lawyer - and one of the co-authors to this commentary.
If we truly want to promote our society as a level playing field, then we must become more adept at differentiating between what actually is earned versus what is a matter of circumstance. We need thoughtful new standards that consider what our performance indicators truly measure.
One alternative is for colleges and workplaces to adopt a "distance traveled" metric, one that measures not just who crossed the finish line first, but also the distance from each individual's starting point to the finish line. For example, a college might consider a system that requires disclosure from parents of all the resources provided to the child - writing coach, tutors etc. Workplaces might give added weight to candidates who earned their accomplishments, including by paying their own through college.
The results might surprise us.
In the future the Court should not oversimplify the issue of equal opportunity and access to create bad civil rights law. Instead, we need to design new ways of attacking unfairness and bias in the 21st century.