Fort Smith City Administrator wants ‘diverse’ talent pool for openings, EEOC responds

Fort Smith City Administrator Carl Geffken appears to be taking Fort Smith’s minority hiring problem seriously.

In a July 15 email to Strategic Government Resources (SGR), the recruiting firm used by the city in pursuit of its three open department head positions in human resources, police and utilities, Geffken asked if the applicants had been “forthcoming with their EEO information,” noting that he would “like to have as diverse a pool as possible to interview.” While there is good reason for Geffken’s request, surveying for race in the pre-employment process could have some legal jeopardy.

The city’s hiring history has been deficient when it comes to representing the demographics of its population, especially as it relates to the Fort Smith Police and Fire Departments and African-Americans.

While approximately 9% of the city’s population is African-American, the combined percentages of both fire and police departments come nowhere close to reflecting it.

Out of 164 sworn officers, the FSPD employs only one African-American officer – Wendell Sampson, who previously filed a lawsuit against the department for discrimination in employment and promotion practices. The department has not promoted a black officer since 1988 and has not hired a black officer since 1995.

As for the fire department, it has just three uniformed personnel out of 149 (and a total of 152 employees). Comparing percentages, the fire department features 1.9% African-American representation while the police department has just 0.6%.

Overall, there were 49 African-Americans employed with the city out of 895 total employees as of April, an employment percentage of 5.47%. Hispanics, who comprised 16.5% of Fort Smith’s population as of April 1, 2010, are represented in only 3.02% of the April employment data (27 out of 895 total employees). The number of Hispanics in police and fire ran slightly better at 3.34% (12 out of 359 employees), but was still way under the city’s population makeup. Women also fell under the mark with 19% employment representation against a city population makeup of 51.3%. Whites were the only group overrepresented with 774 employed out of 895 positions, or 86.48% versus the Census demographic of just 69.3%.

Still, Geffken has a challenge in balancing the line between hiring the most qualified applicant and the perception of hiring based on race, gender or ethnicity. As well-meaning as the request to SGR is, Corbett Anderson, assistant legal counsel with the Equal Employment Opportunity Commission (EEOC), said in comments to Talk Business & Politics that it could get “dicy” if one of the applicants not chosen wished to pursue action against the city. That dicy-ness wouldn’t necessarily mean Fort Smith would lose a hypothetical lawsuit, however. It would just “require the employer to explain why the person wasn’t selected.”

“In a sense, they wouldn’t get thrown out of court without looking at it twice,” Anderson said, adding that if the applicant was qualified, applied, and, after doing so, didn’t get the job, and the employer — in this case, the city of Fort Smith — continued to seek applicants, then the city might have to provide an explanation as to why the individual didn’t get the job, “which wouldn’t be hard to do.” Since Geffken’s email was sent on July 15 and SGR continued to seek applications until July 22, Anderson said, this scenario would meet such criteria. However, Geffken is likely within his right to ask that type of question, “certainly in a context where there has been a dearth of minority hiring.”

Anderson continued: “If people hired over time haven’t reflected the qualified labor pool expected to be considered for those types of jobs, a lot of employers will ask their recruiters.”

While EEO surveys should not be used as the basis of employment, Anderson said, “there are some exceptions to that rule that would allow race or ethnicity or gender to be used in a very modest way, but doing that is very legally dicy. It can be done under the right circumstances and interests and with the right legal counsel as long as it’s not too heavy-handed.”

Anderson could not give a clearer picture of this particular scenario without knowing how Geffken planned to use the EEO information in the decision-making process, so that was a question Talk Business & Politics posed to him on Thursday (Aug. 18).

In an emailed response, Geffken wrote, “When I sent Gary Holland (of SGR) that question, I wanted to know if they self-reported the information to him so I could gauge the interest in the positions across all EEO categories.”

Geffken continued: “I, as well as other City officials have been asked about the make-up of the applicants and providing our residents with that information would be beneficial. As you should have seen in his reply, they did not do so directly, but may have done so confidentially at the end of the end of the (rather long) application process.” (NOTE: The EEO question arose from documents received from the city via a FOIA request, but Talk Business & Politics did not receive the response to which Geffken is referring.)

Geffken said according to federal law, “employers are asked to hire a person with a minority status if the two or more of the candidates for the position are of equal capability. As I have been clear when asked, the City will hire the most qualified people for the Department Head level positions.”