St. Louis Settles Promotion Discrimination Suit

A lawsuit filed by 140 black St. Louis firefighters in 2015 challenging the 2013 promotional test for captains and battalion chiefs has been settled with a comprehensive agreement to overhaul the promotional process.

The suit was filed in state court by the 140 named firefighters and the Firefighters Institute for Racial Equality (FIRE) alleging that the 2013 promotional process was racially discriminatory. The case was removed to US District Court where the settlement was reached.

According to attorney Joe D. Jacobson, who represented the plaintiffs, that allegations of discrimination in the promotional process is not new. The St. Louis Post-Dispatch quoted him as saying: “every test given in the last 25 years resulted in litigation” with just one exception. In addition, from 1974 to 2002 the city was under a consent decree requiring the hiring of one black firefighter for every white firefighter hired.

The settlement overhauls the promotional process in a comprehensive way. While not originally named as a party to the suit, St. Louis Fire Fighters IAFF Local 73 intervened and along with the City and FIRE consented to the terms of the new process. The agreement has a number of provisions that are worth noting, starting with a statement of the intent of the parties to:

Put into place a set of agreed-upon future promotional examination practices intended and designed to achieve the parties’ four mutually-shared goals of:

  • Ensuring that future promotional examinations for Captain and Battalion Chief in the City’s Fire Department are valid and fair and do not unlawfully discriminate against any promotional candidate or candidates on the basis of race;
  • Ensuring transparency in the Exam process;
  • Making reasonable efforts to ensure that future Exams are perceived by future promotional candidates, the City’s firefighters as a whole, and by the broader community in the City as valid, fair, and nondiscriminatory;
  • Avoiding litigation regarding future Exams.

Among the more important provisions:

  • The current Eligible Lists for Fire Captain and Fire Battalion Chief generated as a result of the disputed 2013 promotional examinations will continue to be used for promotions until such time that the Director certifies new Eligible Lists for Fire Captain and Fire Battalion Chief.
  • The City will not intentionally delay promotions from the current lists in anticipation of new lists being certified. Nor will the City intentionally delay the next Exam to extend the use of the current list.
  • The City will use its best efforts to hold the next Exams by December 2018. In any case, no new Exams will be held before July 1, 2018. The Director anticipates issuing by the end of November 2017 a Request for Proposals (RFP) to qualified testing Consultants to design and administer the Exams.
  • A copy of this Settlement Agreement will accompany all future RFPs and all future RFPs will provide that the testing consultant selected must adhere to the terms and conditions of the Settlement Agreement pertaining to the administration of the exam and the reporting of the exam results.
  • The Director will provide drafts of all proposed future RFPs covered by this Settlement Agreement to the presidents of Local 73 and F.I.R.E. no later than two months in advance of the dates scheduled for each RFP to be issued so that such organizations can make a detailed review of the draft RFP and provide comments and suggestions with respect to proposed changes to the RFP.
  • City will require the Consultant to provide one or more inperson sessions in the City to provide promotional candidates with an overview of the testing process and an opportunity to ask questions about the upcoming Exam.
  • If a multiple choice test is to be a component of the Exam, the Fire Chief and his staff will prepare 50 to 75 multiple choice practice questions based on source materials relied upon by incumbents in the position for which candidates are applying and provide such questions, along with an answer key and citations to the specific source material for each question, to the presidents of F.I.R.E. and Local 73 at least four (4) months prior to the administration of the actual multiple choice test. The president of F.I.R.E. will make good faith efforts to work collaboratively with the president of Local 73 to make whatever changes or add whatever questions they deem appropriate. F.I.R.E. will make good faith efforts to jointly, with Local 73, hold practice exams approximately three (3) months prior to the administration of the actual multiple-choice test and the Fire Chief and his staff and the Department of Personnel will provide any necessary support and assistance.
  • With respect to the first Exam given under this Settlement Agreement only, if a multiple-choice test is to be a component of the Exam, the results of the multiple-choice test will be used solely on a pass-fail basis.
  • The cut-off score to pass the multiple-choice test, if one is used, will be set by the Director, with the advice of his Consultant, at a meaningful level high enough to ensure that each candidate who passes the multiplechoice test has the knowledge base needed to perform the job requirements of the position for which he or she is a candidate.
  • Following the administration of the Exam and certification of the resulting Eligible List, the parties will reconvene to discuss the results of the Exam and whether the Eligible List satisfies the criteria discussed above.
  • The discussion will focus, in part, on the use of the multiple-choice test (if used) on a pass-fail basis. If the parties agree that the use of the multiplechoice test on a pass-fail basis test was satisfactory, then the Director will cause the next Exam to also use a multiple-choice test on a pass-fail basis.
  • If a multiple-choice test is used, each candidate taking the test will receive his or her raw score on the test before leaving the testing site.
  • If a multiple-choice test is used, the City will, within 30 days following the administration of such test, provide each candidate with an explanatory letter identifying each question that the candidate answered wrong and providing for each such question the correct answer and citation to the source materials for each answer.
  • If a multiple-choice test is used, the City will hold a review session open to all candidates at which the Consultant will discuss the multiple-choice test with interested candidates.
  • If oral board exercises are used and scored by assessment panels, each panel will have four members, two of whom will be Black.
  • If any assessor’s score awarded to a candidate on any assessed ability of an oral board exercise is more than two points higher or lower than the scores awarded by the other assessors on such assessed ability (assuming a ninepoint or ten-point scale), the assessors will confer with each other, outside of the presence of any candidate, and one or more assessors will adjust their score(s) so that there is no longer a scoring difference of more than two points on any assessed ability of the oral board exercise.
  • If oral board exercises are used and scored by assessment panels, candidates will be informed before their oral board exercises that they will have the right to immediately appeal any procedural issue with any oral board exercise, or that they may wait to make such an appeal until after the candidate is provided with his or her final test results.
  • All candidates who complete an Exam will have the right to appeal as provided by the City Charter and Civil Service Rules.
  • This Settlement Agreement will remain in force and will be binding upon the City and the other parties through the next four Exam cycles.

Here is a copy of the Settlement Agreement: Green v St Louis SETTLEMENT

Here is a copy of the original complaint: Green v City of St Louis

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Vinny Sheehan

    Whatever happened to the higher on the list gets the spot,

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