By Gordon Davis
Disparate Impact discrimination is the legal term that describes discrimination without animus.
It usually is found as a policy that results in an adversely negative impact on a protected class based on a so called neutral or nondiscriminatory policy.
The Equal Employment Opportunity Commission (EEOC) has ruled that criminal records disclosures can be considered disparate impacts.
It and other organization have created new policies to ensure that people who have been formerly incarcerated or arrested will get at least a chance for an interview when applying for work.
Another example of disparate impact is the so called School to Jail Pipeline which many people consider racist because it affects a disproportional number of Black Latino and poor students. The institutional mechanism and policies of the School to Jail Pipeline negatively affects all students.
The School to Jail Pipeline’s policies are racist, not because it is based on any negative animus but because it has a disproportional negative impact on Black, Latino and other students.
The solution to the disproportionally negative impact is a rewrite of policies. For Massachusetts the change has seemingly come in M.G.L. Chapter 222.
The opponents of the efforts to reform the policies leading to disparately negative impacts sometimes use the pretext of colorblindness.
We have seen this use by a local columnist to defend a lack of effective programs, the Worcester Police Department and people working in the Worcester Public Schools. In her recent column she said that white teachers are the victims.
A good teacher is a good teacher regardless of protected class or race. We should instead look at the policies that have the negative impact on our children.
It has been pointed out to me that the recent promotions of City of Worcester and Worcester Public School officials could be an example of Disparate Impact:
The present Commissioner of the Worcester Department of Public Works, Mr. Moosey, was, before he was appointed, the next in line to replace then DPW and P Commissioner Mr. Moylan.
Ms. Ledoux, the present Worcester City Clerk, was next in line when she was promoted and replaced her boss, David Rushford who recently retired.
The new City of Worcester Chief of Police, Mr. Sargent, was next in line when he was promoted to replace the retired Chief Gary Gemme.
All the people mentioned above are white and they were all well qualified for their experience and promoted to the top positions with in their respective departments.
There was one exception to this apparent policy of promoting the employee next in line: The Assistant Superintendent of our Worcester Public Schools was passed over in favor of a less qualified candidate. In this particular case the Assistant Superintendent is Latino and the less qualified candidate – now School Superintendent – is white.
In terms of unlawfulness this might not be disparate impact. The hiring process of department heads was not the same or similarly done, as was the hiring of the Worcester School Superintendent. The Worcester School Committee made the decision regarding the Superintendent. The aforementioned city department heads were appointed by either Worcester City Manager Ed Augustus or elected by the Worcester City Council.
Our School Suprintendent is hired by the Worcester School Committee.
However, the hiring of Maureen Benienda as School Superintendent certainly was not in compliance with Affirmative Action policies of the City of Worcester or their intent.
The policies were written to ensure that when a person in a protected class has the same or better qualifications as a candidate not in the protected class, the person in the protected class would be hired.
This Affirmative Action policy has worked very well for the Worcester Police Department for the protected class of armed forces veterans. One hundred percent of police cadets are veterans.
Is there animus in Worcester’s hiring practices?
Maybe there is.
Is there an adversely negative impact in Worcester’s hiring policies?
Yes, there is, as seen in the statistics.
All of the promotions to department heads have been white. The better qualified Latino candidate for School Superintendent is Latino and he was passed over.
Dr. Carter, the recent hire for the newly created Worcester Chief Diversity Officer position, does not seem to have any power to do anything significant.
I believe she is a good person in a position requiring moral courage.
Unfortunately, this was predicted during last summer Department of Justice “dialogues on race.”bThis writer said those “dialogues“ are a joke and that the position of Chief Diversity Officer would be just a token or crumb for “minorities” to fight over.