This week, a federal judge in Washington, D.C., determined that the agents had met all of the requirements for a class action certification and approved the case to move forward. The ruling contrasts with an eariler case in which another federal judge threw out an age discrimination lawsuit brought by FBI supervisors because, he said, federal employees are not entitled to bring disparate impact claims under the Age Discrimination in Employment Act.
The plaintiffs in the race discrimination case, which was initially filed in May 2000, had to try three times before their class action was approved.
Nevertheless, the agents may face an uphill battle of competing statistics. In a case filing from Jan. 2012, the Department of Homeland Security claimed that African-American agents score similarly on the Special Agent Merit Promotion Program evaluations and receive promotions at a similar rate as non-African American agents. Furthermore, the agency asserted, African-American agents tend to be promoted earlier in their careers than other agents.
"This evidence conclusively refutes plaintiffs' overarching claim that the Secret Service has refused to eliminate racism from the fabric of its promotion process," the document read.
DHS filed a motion asking the judge the exclude all testimony by the plaintiffs' expert witness, a statistician, but the judge refused. The agency had argued that the statistician's testimony was "unreliable and irrelevant" -- but not because there is any dispute about his qualifications as an expert in statistics. DHS's essential argument seems to be that its own statistical models, which show no disparate impact, are better than the statistical models the plaintiffs would like to present.
The plaintiffs' statistical models will be allowed into evidence. That may mean that much of the trial will be spent explaining the differences in the two models to a jury. Will a trial court believe the agents' evidence of race discrimination or the agency's evidence of none? We'll have to wait and see.
Source: Thomson Reuters News & Insight, "Judge certifies black Secret Service agents in discrimination case," Brendan O'Brien, Feb. 27, 2013