The U.S. Department Of Justice ("DOJ") reached a settlement agreement with the City of Durham, North Carolina, to resolve claims that the hiring process for firefighters in the Durham Fire Department (DFD) violated Title VII of the Civil Rights Act.

The DOJ found that DFD's hiring process was discriminatory against Black applicants, particularly using a biased written test.

The City of Durham has agreed to revise its hiring practices to ensure compliance with federal anti-discrimination laws.

The agreement includes measures to prevent future discriminatory practices in the DFD's hiring process. https://www.justice.gov/opa/pr/justice-department-secures-agreement-durham-north-carolina-end-discriminatory-hiring (Oct. 08, 2024).

Commentary

According to the cited source:

The settlement agreement resolves a civil pattern or practice investigation the Civil Rights Division opened in February 2020. As part of the investigation, the division conducted an in-depth review of DFD's hiring practices, applicant data and other information received from the DFD. The division concluded that the fire department was using a written test that does not meaningfully distinguish between applicants who can and cannot perform the job of a firefighter. The test also disqualified Black applicants from employment at significantly disproportionate rates. The department thus concluded that the test violates Title VII.

"Discriminatory employment tests do more than cost applicants a fair chance to compete for public service jobs like firefighting; they also prevent communities from being served in these crucial positions by the most qualified candidates for the job," said Assistant Attorney General Kristen Clarke of the Justice Department's Civil Rights Division.

Written hiring tests are a litigation lightning rod for public employers. Pre-hire tests are often viewed as inherently biased against minorities. 

The claims of bias against pre-hire tests vary. Critics claim tests may contain language, scenarios, or references that are more familiar to certain cultural or socioeconomic groups, and that disadvantage minorities.

According to the source, the city was using a written test that does not meaningfully distinguish between applicants who can and cannot perform the job of a firefighter. While missing specifics, these types of claims often center on requiring an applicant to have knowledge of subjects unrelated to the job.

For example, a pre-hire test might require a fire department applicant to know advanced algebra; however, to fight fires, simple math skills would likely suffice for entry-level positions.  

The final takeaway is that organizations that want to use pre-hire tests should seek the advice of an attorney and avoid using tests that have been declared discriminatory or that do not have a track record of withstanding independent scrutiny of its legality. Independent evaluation of the test by experts is recommended before implementation.

Here are some additional best practices for avoiding race discrimination in hiring:

• Do not use words or phrases that signal a preference for workers who are, or are not, a certain race or color, such as "preferably [e.g., Caucasian, African-American, Asian, Hispanic, Native American]" or "[e.g., light-skinned, dark- skinned] applicants only"
• Do not state that an applicant of a certain race/color would "offend [e.g., customer, coworkers]" or would not be a good fit based on race/color
• Avoid expressing a preference for applicants who are, or are not, a certain race/color in written job advertisements, including terms such as "like us", or "reflect our customer base"
• Do not disqualify an applicant because they would "stand out" or be "too different" or would not further diversity goals because of their race or color
• Do not express a preference for applicants in terms of race/color. For example, do not state that the position is a "diversity hire" or that the applicant should be "non-[e.g., Caucasian, African-American, Asian, Hispanic, Native American]
• Never describe positions in terms that refer to race- or color-related stereotypes or characteristics.
• Ensure that applicants of different races/colors are considered in the same manner as all other workers are considered
• When discussing applicants, do not use words or phrases referring to the applicant's race/color or race- or color-related stereotypes
• Do not include questions about race/color in interview questionnaires or applications
• Provide race/color discrimination prevention training for all employees, particularly those involved in the hiring process