OK, here's the thing about tests used in hiring and promotion--if they have a disparate impact on one or more minority groups, then the employer has the burden of showing that the test is job related and consistent with business necessity. To meet this burden, the employer has to show that the test is valid. There are several ways a test can be valid. It can predict success on the job--in other words, the better people did on the test, the better they did on the job. Or the test can be shown to measure some skill or ability required by the job, like typing speed and accuracy for a typist job, or it can be shown to measure some quality or characteristic necessary for the job, like people skills for a sales job. (See 29 CFR 1607, the Uniform Guidelines on Employee Selection Procedures). Most employers with any sophistication have their hiring/promotion tests validated by outside experts.

So if the test that New Haven gave was valid under the law, why didn't the city go ahead and promote the white firefighters based on the test results, and then defend the test in the litigation which would inevitably follow? Instead, they chose to throw the test results out and promote no one, thereby drawing an equally inevitable lawsuit from the white firefighters who were not promoted. Could it be that they didn't really believe the test was valid, and its use was just another way to perpetuate the pattern of hiring and promoting whites?

If the test was valid, promote the ones who did best. If not, dump it and find another way to evaluate candidates for promotion. But keep in mind that for generations, police and fire departments have adopted formal (e.g., height and weight requirements) and informal (family preferences) criteria which kept them almost all male and lily-white. So pardon me if I'm a little suspicious of New Haven's motives here.

I don't have a lot of hope that Obama will prosecute, at least not early in his first term. Having said that, if I were going to do so, I wouldn't tell anyone until Bush no longer has the power to pardon.

We hear a lot from conservatives about how awful and self-indulgent the 60's were. Anyone who watches Mad Men knows, however, that whether the 60's gave us what we needed, we damn sure needed something. The awful, pervasive sexism is a just a bad memory for me, but it makes my law school daughter alternate between thinking they must be making this stuff up and having to get up and leave the room for a moment. Blacks are almost invisible, and when one man actually dates a black woman, the assumption is that he must be doing it for either shock value or to experience jungle fever. (And imagine if he tried it in Birmingham rather than New York....) A smart, accomplished, wealthy Jewish woman is the object of disdain, of course, except when you're trying to get into her pants. In fact, it looks like the only people having any fun are the ones in charge, the white males. Except that when you get behind the three-martini lunches and the white picket fences, their lives don't look so hot, either.

And that may be the best part of Mad Men. The exercise of power has not only corrupted them, it's left them unhappy and unsatisfied. They run after power and money and women, and even when they get them, it leaves them empty, and worse off than they were.

We know from our vantage point that the Man in the Gray Flannel Suit, the Organization Man, will go away to a large extent, replaced perhaps by Sensitive New Age Guys who are trying to get in touch with their emotions. Hell, Maureen Dowd will make a career out of making fun of them and helping Democratic men who try not to be Don Draper lose elections. But men are better off when they do try to get in touch with their emotions, when they try to be real fathers to their kids and real husbands to wives whom they know to be equal partners. They are better off when they include in society all of its members, and when justice trumps power. None of those things has entirely come to pass, but to the extent that they have, it's partly because of the 60's.

So, power to the people, give peace a chance, and remember, all you need is love.