Crabs in a bucket

By Legal Eagle

In comments on my post on Michael Jackson, Su mentioned the “crabs in a bucket” syndrome that affects race relations in the US – the notion that those who were trying to escape from bad circumstances undermined others in the same predicament to further their own escape. Such a vivid metaphor for anyone who has gone fishing for crabs…I can almost hear the claws and legs scrabbling on the plastic of the bucket…*shiver*

SCOTUS has just handed down a decision on race relations which left the court divided 5 – 4.

Ricci v DeStefano arose as a result of the promotion procedures for firefighters in New Haven, Connecticut. In late 2003, the New Haven Fire Department required that applicants for promotion to Lieutenant and Captain undertake written and oral exams. Promotions were infrequent, and the stakes were high. Apparently, the exams were very carefully designed so that they would not favour one particular racial group over another. After the exams, the New Haven Civil Service Board (CSB) was to certify a ranked list of applicants who passed the test. Under the New Haven City Charter’s “rule of three,” the relevant hiring authority was required to fill each vacancy by choosing one candidate from the top three scorers on the list.

The difficulty arose when the results of the test were released (as related at pages 5 and 6 of majority judgment):

Seventy-seven candidates completed the lieutenant examination — 43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed — 25 whites, 6 blacks, and 3 Hispanics. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top 10 candidates were eligible for an immediate promotion to lieutenant. All 10 were white.  Subsequent vacancies would have allowed at least 3 black candidates to be considered for promotion to lieutenant.

Forty-one candidates completed the captain examination — 25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed — 16 whites, 3 blacks, and 3 Hispanics. Seven captain positions were vacant at the time of the examination. Under the rule of three, 9 candidates were eligible for an immediate promotion to captain — 7 whites and 2 Hispanics.

For the 118 firemen who took the exams, the pass rate for black candidates was approximately half that of the corresponding rate for white candidates. At page 2 of his judgment, Kennedy J notes:

When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded.

The CSB was required by the Charter to vote to certify the test results. The CSB held five hearings in early 2004 to deliberate whether to to certify the test results, as it was alleged that the results had a disparate effect on racial minorities.

Title VII of the Civil Rights Act 1964 (codified as Subchapter VI of Chapter 21 of 42 U.S.C. § 2000e), prohibits employers from discriminating against employees on the basis of race, colour, religion, sex or national origin. See 42 U.S.C. § 2000e-2 (a), which states that employers must not “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” or “limit, segregate or classify his employees or applicants for employment in any way” which might discriminate against a particular group. It seeks not only to prohibit direct discrimination (“disparate treatment”), but also unintentional discrimination, where a particular practice has a “disparate impact” on a particular group. 42 U.S.C. § 2000e-2 (k) outlines when a practice has “disparate impact” on a particular group. If an employer demonstrates that the practice is “job related for the position in question and consistent with business necessity”, then it is permissible to have a disparate impact on a particular group.

In the event, the test results were not certified. The City was worried that the test was racially discriminatory and would open them up to legal action by disaffected minority groups.

The plaintiff Ricci and 17 other test takers (of whom 16 were white and one was Hispanic) sued the City. They argued that the City had contravened Part VII because it had engaged in disparate treatment of white applicants. All of the plaintiffs would have qualified for consideration for promotion. Ricci’s story was a particularly poignant one:

Frank Ricci has been a firefighter here for 11 years, and he would do just about anything to advance to lieutenant.

The last time the city offered a promotional exam, he said in a sworn statement, he gave up a second job and studied up to 13 hours a day. Mr. Ricci, who is dyslexic, paid an acquaintance more than $1,000 to read textbooks onto audiotapes. He made flashcards, took practice tests, worked with a study group and participated in mock interviews.

Mr. Ricci did well, he said, coming in sixth among the 77 candidates who took the exam. But the city threw out the test, because none of the 19 African-American firefighters who took it qualified for promotion.

At first instance, a single judge granted the City’s application for summary judgment. The plaintiffs appealed to the Second Circuit Court of Appeals, which initially merely confirmed the summary judgment, but then issued a short per curiam judgment, so short that it can be quoted here in full:

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

Significantly, one of the Second Circuit justices was Sotomayor J, now appointed to SCOTUS. This means that her questions of the parties in the Ricci case have been now been scrutinised with a fine-toothed comb.

The plaintiffs then appealed to the SCOTUS. A majority of the Court found in favour of the plaintiffs. Kennedy J delivered the majority judgment (with which Alito, Scalia and Thomas JJ and Roberts CJ concurred). It can be summarised as follows:

  • Contrary to the findings below, the City did engage in disparate treatment when it failed to certify the test results. It decided that too many white people had passed the test and not enough racial minorities had passed it, which was intentional discrimination against a particular group.
  • However, sometimes avoiding unintentional discrimination can justify intentional discrimination.
  • The plaintiffs’ position was that an employer must know that it is in violation of the disparate impact provision before engaging in disparate treatment. The defendants’ position was that an employer must merely believe in good-faith belief that disparate treatment was necessary. Neither extreme was correct.
  • The correct test was that an employer could engage in disparate treatment when there was a “strong basis in evidence” of disparate impact.
  • Given that there was disparate treatment in this case, the question was whether the City had a “strong basis in evidence” of disparate impact. The City did not have a “strong basis in evidence”. All it had was prima facie statistical results which suggested that black and Hispanic candidates were half as likely to pass as white candidates. The tests were job related and consistent with business necessity. The authors of the test conducted painstaking tests to ensure that the test did not unduly disadvantage minorities. The majority also found that there was no evidence of equally valid, less-discriminatory alternative exam.

Scalia J concurred fully with the majority, but also addressed the question of whether the disparate-impact provisions were consistent with the US Constitution’s guarantee of equal protection. Scalia J said at pages 1 – 2 of his judgment:

But if the Federal Government is prohibited from discriminating on the basis of race…then surely it is also prohibited from enacting laws mandating that third parties — e.g., employers, whether private, State, or municipal — discriminate on the basis of race. …Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory.

Alito J also fully concurred with the majority, but brought up the question of the extent to which the CSB’s decision was made because the New Haven mayor did not want to upset a black prominent supporter. His statement of facts was brought into question by Ginsburg J’s dissenting judgment.

Ginsberg J (with whom Stevens, Breyer and Souter JJ concurred) wrote the dissenting judgment. She noted the long history of underrepresentation of ethnic minorities in the New Haven firefighting force. She criticised the New Haven Fire Department for not administering a less discriminatory test.

Her Honour did not see the two provisions preventing “disparate treatment” and “disparate impact” as being in conflict. She said at page 19 of her judgment:

A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity.

She found that the failure to certify the exam results was not disparate treatment because the CSB had good cause to believe that the exam was discriminatory by reason of its disparate impact; nor would the exam pass the strict requirements of the business necessity test.

A difficult case. At the end of it all, I can still hear those crabs scrabbling in the bucket.

40 Comments

  1. Posted July 4, 2009 at 3:14 pm | Permalink

    And people wonder how we got into “all shall have prizes” territory…

    As there seems to be little difference between the candidate numbers/performance/results of African-American and Hispanic applicants I’m surprised that they seem to be saying that the particular group on which the test has a disparate impact is “anyone who isn’t white”. (You call that a particular group?)

    More likely is that the test has a disparate impact on those “without a college level education”, who are more likely to be candidates from among ethnic minorities. However I don’t think this is an inappropriate or unacceptable point of discrimination when you are trying to find the best possible candidates for a limited number of promotions.

  2. Posted July 6, 2009 at 11:54 am | Permalink

    I’d side with SCOTUS on this one. The disgruntled minorities in cases like this should have to show exactly what aspect of a test was discriminatory.

  3. Posted July 6, 2009 at 8:54 pm | Permalink

    DeusExMacintosh, very scary stuff in the last paragraph of your comment.

    Firefighting promotions should be on leadership ability and firefighting experience.

    Discrimination in firefighting promotions based on college education would take a lot of justifying. A more irrelevant qualification for firefighting would be hard to find.

    I’ll take my firefighters based on ability to put out fires and rescue people.

    You can take them by their performance in an academic test at your own peril.

    Firefighting isn’t a chattering profession, it is an action profession.

  4. Patrick
    Posted July 6, 2009 at 11:24 pm | Permalink

    I was sitting there when they read the summary judgements out. Accordingly I consider myself well-qualified to note that Roberts CJ also concurred in Kennedy J’s opinion 🙂

    I can also testify to the bitter tone of Ginsburg’s attack on the majority (for her oral summary of her dissenting judgment was mainly that). She started with the ‘context’ of black American oppression and got more negative as she went. She literally spoke of eviscerating Title VII.

    But what it boiled down to was that the tests were about as good as anyone could reasonably have hoped for. The majority said that if you have made reasonable efforts to have a reasonable test, then that is fine even if it turns out that the blacks don’t star on it.

    Ginsburg and the minority (and the execrable issue-ducking muppets on the second circuit appeal panel) effectively concluded that a test hat has a disparate impact, post facto, is inherently racist unless it was provably the best possible test for the job which took account of racial performance. The key part is that what was challenged was the Board’s ability to validly throw out the test – so Ginsburg J’s dissent would have amounted to: ‘you can throw out the results of any test, and maybe even have to do so, if there is a disparate impact., unless that test was beyond any plausible criticism whatsoever.’

    But possibly worst of all is that a 93-page Supreme Court opinion dividing 5-4 with two separate concurrences was not thought even worth commenting on (or only most barely) by the second circuit.

  5. Posted July 7, 2009 at 4:23 am | Permalink

    I agree with the majority here, but like Steve at the Pub, I do wonder why they had firefighters taking a bunch of pen and paper tests anyway.

    More creeping credentialism?

  6. Patrick
    Posted July 7, 2009 at 6:14 am | Permalink

    Um, no, more desire to save lives?

    The test was about things like how different materials burn and react to heat, how different kinds of fires spread, what effect wind/humidity can have on different types of fire.

    Sounds like kinda useful stuff for at least some of the firemen to know…

    (also, I forgot to point out that not only did Roberts CJ concur but Thomas J concurred separately, and they are indeed two separate people).

  7. Posted July 7, 2009 at 6:30 am | Permalink

    I would imagine that at the ranks of Lieutenant and Captain you are moving into management responsibilities which entails a lot more paperwork and organisational skill. Firefighting is subject to local authority regulation and employment law like any other profession. There are budgets to juggle and public funding scrutiny. Police officers sit examinations for promotion to higher positions, so why not fire officers?

    Discrimination in firefighting promotions based on college education would take a lot of justifying. A more irrelevant qualification for firefighting would be hard to find.

    No one is talking about academic-style exams for street level firefighters, this is management level personnel. I can’t think of any industry where entry into management isn’t conditional on either industry examinations or possession of a relevant bachelor (and sometimes masters) degree.

    In the UK these days you can’t get a job as a secretary without a degree. The fire officers are actually privileged in NOT being required to have one in order to be eligible for promotion.

  8. Patrick
    Posted July 7, 2009 at 8:32 am | Permalink

    I agree if I was interested in affirmative action I would have paid the council, Ricci, or anyone else off to NOT take this case ahead.

    But then again the 2nd circuit bench, including (amazingly) Judge Sotomayor, all happily rolled poor Mr Ricci and his white (and hispanic!) friends.

    A note of caution is that whilst Justices Ginsburg, Breyer, Souter and Stephens all seemed to be saying that the throwing of poor Ricci under the bus was legitimate, they didn’t say that the second circuit’s method of doing so was legitimate. The District Judge (and by extension the second circuit) accepted at face value that the council was only concerned about the revealed disparate impact and not about there being no successful black candidates.

    This, he majority thought, was syntactically possible but logically implausible. Even the minority thought that this required more review of the evidence.

    Frankly I think this was easy. Nothing in the purpose or intent of the Civil Rights Act could possibly support something as pernicious and divisive as such a post-facto rejection of a reasonable test solely because the racial ratios were ‘wrong’. Like I mentioned, I was also rather surprised at how abrasive Ginsburg’s oral remarks (and judgement) were.

  9. Posted July 7, 2009 at 10:15 am | Permalink

    The ‘crabs in a bucket’ metaphor becomes especially powerful when one recalls Ricci’s dyslexia. As someone who’s dyslexic myself, I can assure you it’s no bloody fun. I’ve always found the comparison of disabilities odious (precisely because it leads to people scrabbling each over the other, as in the ‘crabs’ metaphor)… But that said, how do you weigh an intellectual disability against the fact of black skin in a situation like this?

    Enquiring minds would like to know.

  10. Posted July 7, 2009 at 11:21 am | Permalink

    “I would count myself liberal, but I do not favour affirmative action, in part precisely because of cases like this. As the majority pointed out – do you have to have “quotas”? That’s what the minority is edging towards. How do you categorise people according to race anyway?

    I think it also does more harm than good and increases racial tension. Look at the furore in this case.”

    Agreed.

  11. Posted July 7, 2009 at 8:17 pm | Permalink

    I always thought that’s the one where you’re supposed to parrot out an “oh, I’m a workaholic and it limits my social life” answer.

  12. Posey
    Posted July 8, 2009 at 6:04 pm | Permalink

    Crabs in a bucket syndrome?! How degenerate.

    I don’t know why you don’t call ’em cockroaches and be done with it.

    But then I guess you couldn’t/wouldn’t dine out on cockroaches and thus the precise meaning would be lost.

  13. Posted July 9, 2009 at 6:51 am | Permalink

    I think it’s meant to emphasise the futility, Posey. The crabs are biting and clawing each other but it’s pointless because there’s no way out of the bucket and they’re ALL going to end up eaten.

  14. su
    Posted July 9, 2009 at 10:13 am | Permalink

    It is also about how class differences are not only maintained by oppression or exclusion from above, they are partially perpetuated by values and behaviours within groups, because you can’t really be ‘one of us’ when you are desperately trying to be something else, even if ‘we’ all would prefer not to live like this ourselves. The metaphor may have arisen in Black America but I recognize that behaviour so it’s probably pretty universal. And I like animal metaphors since that is what I believe we are.

  15. Posted July 9, 2009 at 10:29 am | Permalink

    Given the crabs are about to be slipped into a deep pot, boiled lightly then cracked and incorporated into a creamy bisque, I’m convinced the metaphor really teaches us not to bother.

    As to the decision, leaving aside the main debate about positive discrimination, as touched on by Steve, Skeptic and others the real problem is the use of questionable blunt instruments in work selection and advancement.

    Unless the role was one where the intellectual component would overwhelmingly mark out and define good performance (which seems unlikely in a leadership role), the test scheme and in particular its blunt instrument method of mandating the shortlist, is a complete fail.

    What would seem reasonable is that there is a minimum threshold all candidates have to meet, and then that the score above that is one of the factors (presumably together with work record, leadership skills, people skills, and strategic value to the organisation) that are considered, and judged, in decision making.

    Fear of using judgement and an obsession with ‘objectively quantifiable’ criteria are to blame, imho.

  16. Posey
    Posted July 9, 2009 at 3:46 pm | Permalink

    “Crab in a bucket” syndrome has been used synonymously with “lateral violence” in a range of contexts including in Canadian, American and very recently Indigenous communities, as well as in African American communities. In relation to Indigenous communities it has been explained this way: Indigenous people living on a reserve (metaphorically representing the bucket) who try to climb out (or move up), are pulled back by the rest of the community who will not allow them to leave (or move up in) the reserve.

    It would be interesting to know the provenance of both terms and to what extent the former in particular grew out of sociological theories of welfare trap/dependency mindset and other pathologies mistakenly posited as primary causes rather than symptoms of social and economic inequality and community dysfunction. Thus, by this reasoning Aboriginal people are on welfare (unemployed, addicted to alcohol, undereducated, etc.) because of internal or mental factors.

    I think this approach is wrong, dangerous (and yes we are animals, but higher animals I think, not comparable to crabs or cockroaches) and therefore also repugnant.

    It’s an approach too that leads to diverting attention away from broader cultural, social, political and economic factors at play onto individual or group pathology and focuses on band-aid or surface “solutions” and blame-the-victim games that foster and recreate the very situation being moralised against.

  17. Posey
    Posted July 9, 2009 at 3:55 pm | Permalink

    Moderated?

  18. Posey
    Posted July 9, 2009 at 4:03 pm | Permalink

    sorry, very recently “Australian” Indigenous communities…

  19. Posey
    Posted July 9, 2009 at 4:55 pm | Permalink

    What you say is true to some extent, LE, but what worries me is the application of this notion by government, welfare services, etc.

    Being a bit simplistic here for a moment, I think people like Noel Pearson & Marcia Langton are applying these notions to Aboriginal communities and ending up with what? Yet more focus on community and individual dysfunction at the expense of wondering why and what to do about in a way that can work and build the confidence of Aboriginal people themselves that there are solutions that don’t all involve them “shaping up” as human beings.

    In Canada I know Native Canadian groups are using these notions to offer counselling services or Reclaim Your Inner Warrior training for the men. Sorry if I guffaw. And they are being used as a defensive/aggressive stick – now I have personally witnessed this – by elements of the Aboriginal bureaucracy in government and in the lands council fiefdom to berate and whip back into line far more representative groups from the grassroots of these communities who challenge and yes make a great bloody fuss about “their” corruption, cronyism, uber-cosy employment packages and, in the end, their goddam ineffectualness and failure to address or even acknowledge that.

  20. Posted July 9, 2009 at 5:36 pm | Permalink

    Reclaim Your Inner Warrior training for the men.
    .
    Seems like a good idea all ’round.

  21. Posted July 9, 2009 at 5:43 pm | Permalink

    Posey – welfare trap/dependency mindset/social and economic inequality and community dysfunction..
    .
    Both/and, as distinct from either/or?

  22. Posey
    Posted July 9, 2009 at 5:59 pm | Permalink

    You could say Aboriginal people have lived off the welfare of white Australian society in one way or another since colonisation. Aboriginal people have always lived on the outskirts of settlements, towns, farms, white communities and in return were given scraps or work that enabled them to survive.

    Doesn’t explain why many academics agree that a qualitative downward spiral at least in the 20th century can be dated back to the 1980s. Why? Alcohol was given to Aborigines by the First Fleet whose officers described the effects of this on Aborigines and its addictiveness. So not alcohol or other substances per se. Not welfare necessarily either as this existed in one form or another, delivered either by the state or religious or philanthropic sources for many decades as well.

    So what is going on? Why does this syndrome of “crabs in a bucket” now become an explanation that is getting attention and traction politically and bureaucratically?

  23. Posted July 9, 2009 at 9:14 pm | Permalink

    Re: the qualitative downward spiral since the 80’s

    I’ve not heard this being attributed to “crabs in a bucket” syndrome, just to the fact that it was only in the 70’s that Australian society finally stopped forcibly “managing” Aboriginal lifestyles (through involuntary fostering, intrusive social care and the remnants of the christian mission movement). The 80’s were effectively the first time since colonisation that native communities have truly been left to their own devices and the results have been mixed.

    Personally I think we’re seeing the same range and levels of disfunction you would expect to see with post-institutional individuals (children aging out of care for example), it’s just in this case you’re seeing them across an entire ethnic group.

    Wonder if there’s any research in this area?

  24. Patrick
    Posted July 10, 2009 at 1:57 am | Permalink

    Armagny, I have to laugh. You say:
    What would seem reasonable is that there is a minimum threshold all candidates have to meet, and then that the score above that is one of the factors (presumably together with work record, leadership skills, people skills, and strategic value to the organisation) that are considered, and judged, in decision making.

    I say: that’s what they did. The test in question was one of the criterion for determining the promotion pool. Other factors such as references from senior officers and records were also taken into account.

  25. Posted July 10, 2009 at 12:01 pm | Permalink

    Well, for a very small group, but the test operated as a list whittler rather than a threshold. The test cut the list down to a small number of candidates irrespective of how the rest went, based on what is written in the post above:

    “the relevant hiring authority was required to fill each vacancy by choosing one candidate from the top three scorers on the list.”

    By contrast, for example, if there were a mark, say 85%, that they had to meet as a threshold, it might still throw up the same quandrary (all applicants from one race might not make it), or you might find that in fact 60% or 80% of applicants met the threshold, moving them into being considered on other bases.

    This is what I meant by it being a threshold test, just to clarify.

  26. Posted July 10, 2009 at 11:30 pm | Permalink

    Just saw this in Salon

    The Senate Judiciary Committee has just released the witness list for hearings on the nomination of Judge Sonia Sotomayor to the Supreme Court, which will begin Monday. It provides a pretty strong insight into the Republicans’ plans for opposing Sotomayor: Hit her hard, and often, on race and guns.

    Two names, especially, stick out in the Republicans’ witness list: Frank Ricci, the director of Fire Services with the Connecticut Council on Occupational Safety and Health, and Lieutenant Ben Vargas of the New Haven Fire Department. Ricci was the named plaintiff from one of the most controversial rulings in which Sotomayor has taken part, Ricci v. DeStefano.

    Looks like we’ll be hearing a lot more about the case next week.

  27. Posted July 11, 2009 at 10:09 am | Permalink

    Posey – So what is going on?

    I believe that the problems of fringe dwellers are universal amongts dispossesed indigenous peoples everywhere. Their economy is destroyed, they are not assimilated into the now-dominant mode and their culture erodes.

    Hence they seek oblivion.

  28. Posey
    Posted July 11, 2009 at 1:05 pm | Permalink

    DEM, Peter Sutton’s work especially ‘The Politics of Suffering: Indigenous Policy in Australia since the 1970s’ and Gillian Cowlishaw’s reply are the best research work I’ve come across (social anthropology) addressing this issue though they are at loggerheads.

    Peter Sutton expands on the Pearson/Langton theses with many additional convincing points, including the excellent ones you made, and Cowlishaw’s is the more traditional leftist big-picture Colonisation Original Sin defence.

    On ATSI data collection more generally, apart from the basics indicators, I gather it is highly problematic for a range of reasons including the reliability of the primary sources, the continuing significant growth in the population identifying as Aboriginal, the constant definitional change and focus of the social and economic indicators used by government and the individual mobility that characterises Aboriginal communities.

  29. Posey
    Posted July 13, 2009 at 3:54 pm | Permalink

    “Personally, I’m getting tired of the “crab syndrome” because it is so insulting to the Deaf community. Most of us are better than that.”

    Fascinating. Being doing a bit of research and the crabs in a bucket syndrome or discussion thereof is HUGE in the deaf community.

    e.g. this witty comeback

    http://www.deafdc.com/blog/chris-heuer/2007-05-09/overcoming-crab-theory/

  30. Posted July 14, 2009 at 8:38 pm | Permalink

    Conclusive proof that civilisation is collapsing. People trying to spam this blog have now taken to registering gravatars.

    That’s right, we now have spammers with cutie-pie pictures.

    The mind boggles.

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