By Ameet Sachdev
Chicago Tribune
WESTCHESTER, Ill. — Many police officers and firefighters don’t know who Fred Rafilson is, but they probably have taken one of his company’s exams.
Rafilson founded Industrial/Organizational Solutions Inc., a testing company in Westchester that specializes in helping police and fire departments across the country recruit and promote people. Rafilson and his 20 employees have toiled in obscurity until a lawsuit brought them unwanted attention.
The company designed the test in a now well-known case involving a group of New Haven, Conn., firefighters who claimed reverse discrimination when they were passed over for promotions after passing qualifying exams. The controversy went all the way to the U.S. Supreme Court, which ruled in favor of the white firefighters on June 29.
Legal experts claim the ruling leaves employers, especially civil service agencies that rely more on testing than private-sector companies, more confused about compliance with the nation’s discrimination laws. Some fire chiefs already are questioning the use of multiple-choice testing. The case also revisited the ongoing challenges the public-safety industry, and employers at large, face in attempting to diversify their workforces.
“The opinion leaves those who use testing betwixt and between,” said Cheryl Tama Oblander, a Chicago lawyer who focuses on employment discrimination law. “It makes a bigger mess out of testing and didn’t clarify the issues.”
Rafilson, 47, had a personal stake in the outcome. He is for the first time talking publicly about the case, after declining to discuss the matter as it wound its way through the courts for five years. In a recent interview with the Chicago Tribune, Rafilson acknowledged that a different outcome would have threatened the survival of the business he and his wife, Kimberly, have nurtured since 1997.
“We were sitting around holding our breath,” said Fred Rafilson, chief executive. “We’ve spent our entire careers making sure these agencies don’t end up in court. That’s why they hire us.”
He and President Chad Legel talked at length about the attacks on the company’s reputation they endured from City of New Haven officials as well as some of their peers in industrial-organizational psychology. In an interview with The New York Times in April, before the opinion was delivered, the city’s acting corporation counsel, Victor Bolden, said, “The fact of the matter is it’s a flawed test.”
Some of the criticism became personal.
“Some people would be out there painting us as racists,” said Legel, 33, who led the company’s team that developed and administered the New Haven tests.
But they say the high court’s ruling has helped repair the damage inflicted on their reputation.
“We’re definitely noticing the positive impact,” Rafilson said. “We’ve been hired by a major city to provide an expert review of their entire testing process.”
Legel added, “How can you ask for a better endorsement than the Supreme Court?”
But it was not a unanimous endorsement.
Political lines
The 5-4 ruling split the court along political lines. Justice Anthony Kennedy, writing for himself and the four members of the court’s conservative wing, ruled that the white firefighters were subjected to race discrimination when the city scrapped a promotional exam offered in 2003 in which they scored much higher than the black candidates.
Seventy-seven candidates completed the lieutenant’s exam and 41 took the captain’s test. A total of 56 firefighters passed the exams: 41 whites, nine blacks and six Hispanics. But of those, only 19 candidates were eligible for immediate promotion: 17 whites and two Hispanics.
New Haven refused to certify the tests because of the racially skewed outcomes, and no one was promoted. The city argued that it acted in good faith, afraid that minority firefighters would sue New Haven under a provision in civil-rights laws that prohibits unintentional discrimination in employment — “disparate impact” in the legal jargon. When an employer intentionally discriminates, this is called “disparate treatment.”
But Kennedy wrote, “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”
The majority opinion also said the disputed tests were fair, giving Rafilson and Legel the validation they were looking for. The tests consisted of a written exam with 100 multiple-choice questions and oral questions in front of a three-person panel.
“The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record,” Kennedy wrote, “which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions.”
In 2003, New Haven selected Industrial/Organizational Solutions out of a pool of bids to design a test to fill vacant lieutenant and captain positions in its fire department, an evaluation process mandated by city charter. The city paid the company $100,000.
Rafilson, who has a doctorate in industrial and organizational psychology, has years of experience in employment surveying and testing. Before starting his own company, he worked for two other testing companies, including Libertyville-based Wonderlic Inc., one of the pioneers in personnel testing.
Industrial/Organizational Solutions works specifically with police and fire departments, with more than 500 clients nationwide. The City of Chicago hired the company to administer its 2006 firefighters entrance exam, its first test after a decade of litigation following the 1995 exam.
Mayor Richard Daley praised the company’s test in a September 2006 news release. “The new exam, coupled with the City’s recruitment strategy, has produced a diverse and qualified candidate pool,” Daley said. “Chicagoans deserve nothing less.”
New Haven, like Chicago, has struggled to diversify its fire department. As of 2003, African-Americans held 30 percent of the entry-level positions in New Haven’s fire department but only 9 percent of the supervisory positions. The city is 40 percent black.
Because past exams produced racial disparities, Industrial/Organizational Solutions looked to minimize such outcomes, Legel said. He oversaw a test-design project that included interviewing incumbent captains and lieutenants and riding along with officers to identify jobs skills and knowledge needed for those positions. During the job analyses, the company deliberately sampled a higher proportion of minority firefighters to ensure that the results would not “unintentionally favor white candidates,” the Supreme Court majority ruling said.
Command skills
The oral tests were used to evaluate command skills and leadership and management potential. Two-thirds of the judges — all of whom came from fire departments outside Connecticut — were minorities.
“It was a valid test,” Legel said. “We can’t control the outcome.”
The statistical imbalance, though, raised doubts about the reliability of the exams among New Haven officials. The city held five public meetings in early 2004 that included testimony from Legel, firefighters who took the exam and other industrial psychologists. One industry peer, who competes with Industrial/Organizational Solutions, told the city, according to court papers, that multiple-choice tests are not as valid as other testing alternatives.
Legel disagrees, citing the use of multiple-choice exams to test job knowledge in many professions, including medicine and law. Critics also said the New Haven test had other deficiencies, such as weighing the written exam too heavily, 60 percent compared with 40 percent for the oral. Legel does not defend the ratio, saying the company was bound by the firefighters’ union contract to grade the test that way.
“You can’t judge a testing process based on things that should have been done differently by the city,” Legel said. “I would never suggest the selection process was perfect or best practice. There were some problems with it.”
Justice Ruth Bader Ginsburg, writing a dissenting opinion, also found the city’s selection process questionable. “That IOS representative Chad Legel and his team may have been diligent in designing the exams says little about the exams’ suitability for selecting fire officers,” she wrote in an opinion signed by three other justices.
Following the city’s decision to reject the test, 17 white firefighters and one Hispanic one, all of whom had high marks on the exam, sued the city and several New Haven officials in federal court. In a decision affirmed by an appellate court, the district judge ruled the city’s choice to discard the exams was not reverse discrimination.
The Supreme Court’s majority ruling, while finding that Rafilson’s company fulfilled its obligations, undermined civil rights law, Ginsburg said in her opinion.
“Congress endeavored to promote equal opportunity in fact, and not simply in form,” she said. “The damage today’s decision does to that objective is untold.”
If the end result of the court’s decision is to create better testing systems then the ruling will have a positive outcome, Rafilson said.
“It’s critical for communities that their public-safety agencies mirror their communities,” he said. “We want to develop tests that help achieve that goal.”
Copyright 2009 Chicago Tribune Company