WASHINGTON (Legal Newsline) - The Federal Aviation Administration must defend itself against a long-running class action over a discarded test for air traffic controllers that gave higher scores to applicants who said science was their worst grade in high school than if they reported previous experience in an air-traffic related job.
Some 1,000 would-be controllers sued the FAA in 2015, claiming the agency adopted a “biographical assessment” in 2014 to screen out non-minority candidates and increase the number of African-American, Latino and female candidates. The FAA adopted the new test – developed by diversity consultants who were paid more than $1.5 million for their work -- without first studying its effectiveness and discarded a pool of thousands of candidates who had already qualified under a standardized aptitude test that had been used for years.
The ”biographical assessment” asked questions including where a candidate heard about air-traffic controller jobs, their grades in high school and college, and whether they were unemployed. A key plaintiffs uncovered in discovery shows candidates who rated themselves as poor science students in high school and played varsity sports but were unemployed would score higher than candidates who were employed and had previous experience with air-traffic control. The FAA abandoned the test under Congressional pressure in 2016.
Plaintiffs succeeded in having the case certified as a class action on behalf of the 2014 candidates in February 2022. The two sides have been engaged in discovery ever since, with the FAA turning over tens of thousands of documents and the plaintiffs demanding more. One objective of the lawsuit is to uncover how the FAA decided to adopt a test that screened out thousands of candidates without first validating it under a process the agency had used with every other such exam, said Sean Nation, deputy general counsel with Mountain States Legal Foundation, which is representing the plaintiffs.
“The real tragedy here is we still have an air traffic controller shortage, and we have 1000 people who would be controllers but for a bureaucrat trying to achieve racial balance,” said Painter.
The abandoned test got new scrutiny recently after a post on X by a person identified as Tracing Woodgrains got 1.8 million views and 8200 “likes” for a lengthy description of the controversy.
The FAA adopted the test after years of pressure from minority advocates including members of Congress and the National Black Coalition of Federal Aviation Employees over the perceived shortage of Black flight controllers. A “barrier analysis” by a pair of University of Maryland researchers concluded the FAA relied too heavily upon the Air Traffic-Collegiate Training Initiative, which pre-qualified candidates who attended specialized schools and scored highly on the AT-SAT aptitude test.
The researchers recommended adopting multiple “hurdles” to screen candidates before looking at their AT-SAT scores, starting with a test that had “components with least adverse impact” on minority candidates. The FAA hired APT Metrics, which cites expertise in diversity, equity and inclusion among its skills, to develop a front-end test that would assess various social and economic attributes of candidates. APT Metrics worked under a pair of contracts for more than $1.5 million.
As part of the revamp, the FAA disqualified several thousand applicants who had already gone through the Air Traffic-Collegiate Training Initiative and required them to achieve a passing grade on the biographical assessment first. Many failed, including lead plaintiff Andrew Brigida, who scored highly on the AT-SAT but couldn’t pass a test that rated candidates on whether they learned about air traffic control from a public notice, participated in multiple high-school sports, never went to college or were recently unemployed.
The test gave the highest points to people who reported being unemployed in the last three years, for example, with less if they reported having a job. It also gave high scores to people who said they were reluctant to express their views in a group, were more likely to be bothered by criticism of their performance and had less than three years of training in air traffic control. Candidates scored zero if they reported five or more years of formal training and got lower scores if they said their previous supervisor would describe them as accomplishing tasks quickly or if they said they started earning money after they were 18.
Not all the questions appeared unrelated to the job. Candidates scored highly if they were at the top of their high school class or got A’s. They were also rewarded for having a pilot’s license or military experience in aviation. But the overall effect of the exam, plaintiffs allege, was to disqualify otherwise-qualified candidates because of their race alone.
Even though the test is no longer in use, U.S. District Judge Dabney L. Friedrich has allowed plaintiffs from the class of 2014 to seek damages. Judge Friedrick has refused to allow discovery into the documents of contractors who devised the test for the FAA. But he is allowing some contractors to be deposed. While the plaintiffs now know how questions in the biographical test were scored, they are still interested in knowing the reasoning behind those scores and whether race was a motivation, said Painter of Mountain States.
“We are still in the process of connecting that specific dot,” he said.
The FAA states on its website that as of 2018, the biographical assessment is gone. Painter wants to know if the agency is using some other method to pre-screen applicants, however.
“We don’t exactly know what they’re doing today, we know they are using what they call a personality test,” he said. The FAA didn’t respond to a request for comment.