Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
In the aftermath of the death of Cecil Mills, the Washington Post has done an excellent job of uncovering truly scandalous details about the DCFEMS cadet program, and Dave Statter has done even a better job of putting it all into context. Both articles should be read before reading my perspective.
My take is going to be a little different… a little broader and perhaps even a little less well defined. To start: how do fire service leaders approach the challenge of recruiting and hiring new employees without discriminating, intentionally (disparate treatment) or unintentionally (disparate impact) – or stepping over the other line by committing reverse discrimination? To call this area a quagmire is a gross oversimplification. When I lecture on this topic I use the title “Walking the Tightrope” because of the seemingly impossible requirements that the EEOC and the courts have created.
How big is the problem?
My database of fire service litigation has 5614 cases in it as of tonight. Of those cases – which include criminal actions and a variety of administrative proceedings besides just civil suits – the most common type of civil action in the fire service is a lawsuit alleging discrimination. That means that more frequently than Mrs. Smith suing us because she is upset we burned her house down; more frequently than the family of a deceased firefighter suing the fire department or a property owner for wrongful death; more frequently than someone suing because their vehicle was damaged in a collision with a fire truck – a fire department is sued for discrimination.
New Haven didn’t do it right, according to the US Supreme Court in Ricci v. DeStefano. FDNY didn’t do it right according to Judge Nicholas Garaufis (whose name I can now spell without even looking it up, I have typed it so often) in US v. City of New York. Chicago didn’t do it right in Lewis v. Chicago… I could go on, and on, and on… over 774 times by my count… and I know I have but a fraction of the total number of fire service discrimination cases out there.
How are fire chiefs expected to walk the tightrope between discrimination and reverse discrimination?
Chief Ellerbe and DCFEMS were obviously committed to an alternative hiring system that would help DC avoid the seemingly impossible challenge of avoiding discrimination suits. But seriously, is a cadet program as flawed as DC’s appears to be – a wise solution to avoid the possibility of discrimination?
And perhaps an even more important question needs to be asked: how many of the YCMTSU problems that we are seeing in DC FEMS directly attributable to the well-intentioned but misguided efforts to “avoid” discrimination? When is it time to say – enough is enough? Or will a court have to say enough is enough?
