Citizens Gas & Coke Utility is battling allegations that a test used to screen employees and outside job applicants was biased against blacks, hindering their chances of getting hired or advancing.
The city-owned utility last year reached a confidential settlement with the Equal Employment Opportunity Commission on behalf of applicants who weren't hired because the test "has an adverse impact on black employees and applicants for promotion, transfers and hire," according to EEOC documents.
Now, that settlement-which included cash payouts of undisclosed size to dozens of job applicants from outside the company-is helping fuel a federal lawsuit filed by eight employees. They allege the test developed by a Purdue University professor kept potentially hundreds of blacks from moving up within the utility.
It cites 2000-2004 test results that purportedly show black employees failed the test at a rate of 61 percent vs. 31 percent for their white co-workers at the utility's Prospect Street coke plant.
The case moving at a glacial creep through U.S. District Court for the Southern District of Indiana has been broadened to class-action status on behalf of all workers and external job applicants who took the test since it was introduced in the late 1980s.
Some workers question whether they really failed. Among them is Citizens employee Kenton Smith, who said he's taken the test at least four times over the years and finds it highly improbable that the results always come back just short of passing.
"You take any test and sooner or later you master it. ... There's no way you can fail the test that many times," said Smith, who is no stranger to tests as the holder of a commercial driver's license.
According to the complaint, the test "has resulted in African-American employees being promoted at a lower rate than white employees of similar background and seniority."
The plaintiffs are Smith, Todd Davidson, Wilbert Wiggins, George Douglas, Charles Magee, Daron Thompson, Eugene Smith and George Rodgers. They say they have 16 to 26 years of experience at the utility's east-side Manufacturing Division, which bakes coal to produce foundry coke and natural gas.
Some of the workers have more advanced skills; Davidson is an electrician. The workers seek to be placed in the jobs for which they applied-or receive lost wages, benefits and future earnings, plus compensatory damages.
Most sought transfers to better working conditions and higher pay in Citizens' Gas Division. The Indianapolis utility employs about 1,000 people, split principally between the two divisions.
The complaint alleges that each worker has taken the test and applied for transfers at least once within a two-year period, yet often found out later that Citizens "filled the position with a white employee with less seniority or experience."
The company denies the claims.
"Citizens Gas does not believe the allegations made in the Davidson suit have merit and we will defend them vigorously," said Citizens spokesman Dan Considine.
He said the test was part of the collective bargaining contract with International Brotherhood of Electrical Workers Local 1400 covering the transfer of union employees between operating divisions of the company.
A Local 1400 officer declined to comment. The union previously filed a number of grievances on behalf of employees who had issues with the test, according to court records.
Considine said the company "has a very strong program to promote diversity ... in order to create a work environment in which all individuals are respected and valued. Citizens Gas sees having a diverse work force as a competitive advantage that ultimately produces outstanding customer service."
Test at heart of case
At issue is a battery of tests used at Citizens starting in the late 1980s to measure "basic work competencies." That's the description given by the test's developer, Roland Guay, president of West Lafayettebased Personnel & Research Services Inc.
Guay also is an associate professor in the Department of Organizational Leadership and Supervision at Purdue University. His biography lists more than 20 years of experience as a consultant to companies including Citizens, Columbusbased Cummins Inc. and Lafayette-based Wabash National Corp.
Citizens stopped using Guay's test about a year ago following the settlement with the EEOC, according to depositions from company managers.
Exactly what questions were asked in the 120-item test is unclear; Guay, who did not respond to requests for comment, has been battling in court to prevent his "work competency assessment" test from being admitted in court, claiming it is proprietary.
"The dissemination of the WCA would result in a loss of hundreds of thousands of dollars to PRS for its development/ copyrighting of the WCA and its marketing of the WCA to its other employer clients," he said in response to workers' request for the records.
But Guay elaborated a bit in a February 2003 letter he sent to an investigator at the EEOC's Indianapolis district office, which was looking into allegations the eight employees made before filing their lawsuit later that year.
"The basic work competencies that the WCA measures are not specific job knowledge or skills which often can be developed in a relatively short period of time.
"Instead, the basic work competencies that the WCA measures are abilities [e.g., logical reasoning] and behaviors [e.g., conscientiousness] required to learn and perform complex jobs that are very stable because they are developed over long periods of time."
Guay said Citizens initially used the tests to help screen internal candidates for transfer. In his letter to the EEOC, Guay said the eight employees bringing the suit were hired before Citizens' Manufacturing Division tested for the so-called basic work competencies.
"Had the charging parties been subjected to the testing implemented after they were hired, they almost certainly would have not qualified for employment," Guay wrote, noting that many black applicants did qualify.
"It is easy and convenient for the charging parties to blame the discriminatory nature of the current [test] as the reason for their not being able to qualify for the transfer from manufacturing to gas operations.
"The evidence suggests, however, that the real problem is not that the WCA discriminates against black applicants, but that the charging parties lack sufficient levels of basic work competencies that the WCA and older testing were validated to accurately measure."
EEOC, manager concerns
But the EEOC in February 2004 determined that the "baseline test has not been validated and has an adverse impact on black employees and applicants for promotion, transfers and hire."
Depositions show that some Citizens Gas managers also had some reservations.
"One of our managers-at least one of our managers-felt that the test was screening out some people they would like to hire for entry-level jobs," said Kimberly R. Hackett, a human resources manager. In another deposition, Robert Hummel, vice president of human resources at the utility, said: "The only concern that I always had was that the test was valid and would stand up in court. And that was the question we always asked Dr. Guay. And we were always given an affirmative answer."
Citizens executives put faith in Guay, said Amy Ficklin DeBrota, an Indianapolis attorney representing the eight workers.
"They never even asked him any questions about how he developed it. How it was validated. There are managers in the Manufacturing Division saying, 'My guys can't pass that test. We've got a problem here.' They just ignored all that and kept using the test."
DeBrota said one version of the test essentially was used for "every single job in the place.
"As a single test used as a prerequisite for a wide variety of jobs, the test could not possibly be predictive of success in each job. Yet it was the first step an applicant or employee took in order to be considered for most jobs ..."
In June of last year, the company reached a settlement with the EEOC stemming from the complaint the eight employees filed. As part of that deal, Citizens agreed to discontinue the test. Also, the company agreed that current employees in a division where an opening arises would have priority to fill the opening.
The company also paid cash-the amount is blotted out in court records-to outside minority job applicants. DeBrota estimates nearly 50 people were paid.
Also, the settlement states, "with respect to the class of minority applicants identified by the EEOC, [Citizens] will invite 15-20 class members to re-apply and offer them special consideration in the hiring process."
While the ink was still drying on the EEOC settlement last summer, DeBrota's team was taking affidavits from a number of other black employees at Citizens.
Bart Dickerson, a 15-year employee who works in the Manufacturing Division, said he applied for a mason job three years ago.
"I had the most seniority and should have been granted the position. Citizens Gas gave this job to a white employee with less seniority" and who had to be trained to do the job, Dickerson said.
He testified he was eventually hired for the job, after the white employee bid on another job. Dickerson said he learned in 2002 that he was being paid less than a white employee doing the same job. He filed a grievance and later was awarded $1,800 in back pay, he said.
Some black employees have complained of discrimination beyond the test itself.
Manufacturing Division employee Craig Crenshaw said that nearly two years ago he applied for a position as a foreman but was told the company was not hiring for that position.
"Less than a month later, Citizens Gas gave the foreman's job to a white employee who knew nothing about the plant. I have a bachelor's degree and had seven years of relevant experience. The white employee that was hired over me had only two years' experience, no experience in this area, and did not have any higher education," Crenshaw said in a deposition.
The case filed in December 2003 has proceeded slowly, partly due to the EEOC complaint and recent attempts to broaden the case on behalf of job applicants. About 25 motions now are pending in the case.