Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
A major decision in the FDNY race discrimination hiring case was delivered yesterday, January 13, 2010, and it’s impact is only now starting to sink in. In a 70 page ruling, Judge Nicholas G. Garaufis lambasted FDNY for ignoring statistical imbalance numbers for years, and continuing to use hiring policies and procedures that resulted in a workforce that was approximately 93% white male.
The lawsuit, filed in May, 2007, challenged two examinations administered in February, 1999 and December, 2002, as part of the hiring process. In July, 2009, Judge Garaufis ruled that the examinations were discriminatory under the disparate impact theory. The ruling yesterday was important because FDNY was also being accused of deliberate, purposeful discrimination. There are two basic types of discrimination, disparate treatment and disparate impact.
Disparate treatment is the most easily understood type of discrimination, but often the hardest to prove. It occurs when someone acts intentionally and deliberately to discriminate. For example, an employer who refuses to accept an application from a black applicant, or who purposefully destroys an application once filed, would be guilty of disparate treatment. Usually, disparate treatment cases are few and far between these days.
Disparate impact occurs when despite the fact that there is no clear evidence of intent to discriminate, a statistical imbalance exists that is evidence that some neutral appearing factor must be causing the imbalance, and thereby results in unlawful discrimination. The July, 2009 ruling determined that the 1999 and 2002 examinations had a discriminatory impact. The ruling yesterday was nothing short of historic in so far as it concluded that the continued use of such tests despite a longstanding knowledge that they had a disparate impact, constituted disparate treatment. In other words, the judge ruled that FDNY purposefully discriminated against minorities.
The city’s primary line of defense in the case was that the entrance examination, while possibly burdensome to minority applicants, was valid and justifiably rigorous as a business necessity. However, the court found:
· “the City could not demonstrate a correspondence between the tasks or work behaviors required of entry-level firefighters and the abilities that the examinations were meant to measure”,
· “the City failed to consult outside experts to construct appropriate test questions, and did not conduct sample testing on the questions it adopted”,
· “the examinations did not actually test for the job-related abilities they were intended to test for”,
· “the examinations failed to test for cognitive and noncognitive abilities that are important to the job, the cognitive abilities that were tested for were not the most important cognitive abilities for the job, and as a general matter, non-cognitive abilities were more important to the job than cognitive abilities”,
· “the examinations were written at an unnecessarily high reading level”, and
· “the chosen cutoff scores for the examinations did not bear any relationship to the necessary job qualifications”.
The court went on to state: “The undisputed facts also demonstrated that the rank-ordering procedure failed to distinguish between qualified and unqualified candidates because it relied on the faulty written examinations and produced significant differences in ranking based on statistically insignificant differences in test performance. … Moreover, the City could not show that an applicant’s ranking corresponded to future job performance.”
Even more concerning, the court looked back to a 1973 case brought by the Vulcan Society, where FDNY made very similar arguments that were rejected by the court, and the city was ordered to hire one minority for every three whites hired. That court order expired in 1977. In his decision yesterday, Judge Garaufis pointed out that the percentage of black FDNY firefighters was higher in 1973 when the court ordered the 1 for 3 hiring as a remedy to past disparate impact discrimination, than it is currently.
The city also attempted to use its recruitment efforts as a defense to discrimination claims. The court concluded “While laudable, these facts do not raise any doubts about the Intervenors’ proof. The issue in this case is not whether the City recruited enough black applicants, but whether the screening and ranking procedure that the City applied to those applicants was racially discriminatory.”
“In 1973, Judge Edward Weinfeld held that the City’s practice of using non-validated written examinations to screen and rank prospective firefighters was illegal because it had statistically and practically significant adverse effects on black applicants and was not justified by legitimate business necessities. … In 2009, this court held that the City’s practice of using non-validated written examinations to screen and rank prospective firefighters was illegal because it had statistically and practically significant adverse effects on black applicants and was not justified by legitimate business necessities. … In the interim, the City cycled through six mayoral administrations and ten fire commissioners. The percentage of black firefighters in the FDNY, meanwhile, held steady at around 3%. In 2001, the FDNY had almost half as many black firefighters as it did in 1965, one year after the passage of Title VII.”
“The Vulcan Society opinion [from 1973] is not an inscrutable oracle. It clearly placed the City on notice that, at any given moment, the legality of its firefighter hiring policies was a matter of statistical record and the City’s test-validation efforts.”
“What the City has been persisting in for the 33 years since Judge Weinfeld’s injunction lapsed is not benign neglect, well-intentioned dithering, or, as the City puts it, “at worst a display of bureaucratic failure and of aspects of the test preparation ‘falling through the cracks.’” … It is unlawful discriminatory conduct, as previously defined by the United States District Court for the Southern District of New York and reaffirmed by the Second Circuit”.
About the only victory that can be claimed by the city, was the ruling that Mayor Bloomberg and Commissioner Scoppetta were dismissed from personal liability in the suit, as having qualified immunity. Nevertheless, the judge also admonished them in concluding that the “proof strongly indicates that Mayor Bloomberg and Commissioner Scoppetta were deliberately indifferent to the discriminatory effects of the City’s examination policies.”
After reading the decision, I was struck by how one sided the decision seemed. Sometimes decisions like this come down because the judges are pursuing a certain agenda, and sometimes its because the city has no case. In either event, the court did not decide on a remedy – but it seems inevitable at this point that some sort of dramatic remedy is in store. That phase in the case will play itself in the months ahead. And the appeals could drag on for years……..
