North Carolina City Enters Into Consent Decree Over Hiring Process

The City of Durham, North Carolina has entered into a consent decree with the US Department of Justice in response to claims that the hiring process used by the Durham Fire Department unintentionally created a disparate impact on African Americans. The consent decree resolves allegations that the city “disproportionately excluded African-American applicants from employment” as firefighters for reasons that were “not job-related or consistent with business necessity.”

The DOJ’s suit was filed Monday, October 7, 2024 and the consent decree filed Tuesday, October 8, 2024, indicating that the parties had been working cooperatively toward a resolution of the matter prior to the case being filed. The DOJ alleges that city’s process unintentionally impacted African Americans, under a theory known as disparate impact. Quoting from the consent decree:

• In its Complaint, the United States alleged that since 2015, the City, through its department, the Durham Fire Department, has unintentionally engaged in a pattern or practice of discrimination against African-American applicants for DFD’s entry-level Firefighter position by making hiring decisions based on a written examination that caused a disparate impact on African Americans in violation of … Title VII.
• Specifically, the Complaint alleged that two of the City’s uses of the Comprehensive Examination Battery, a written examination developed by Fire and Police Selection, Inc. —as a pass/fail selection device and as a ranking device to determine which applicants get interviews— each had an unintentional adverse impact on African-American applicants for the entry- level Firefighter job, who disproportionately failed and were disproportionately not offered interviews.
• The United States further alleged that these practices have not been shown to be job related for the DFD entry-level Firefighter position and consistent with business necessity.
• The United States did not allege the City intentionally discriminated against African-American applicants.
• The City denies that it violated Title VII.

Disparate impact discrimination occurs when neutral appearing criteria burden a protected group. The EEOC and the DOJ have established an 80% requirement for disparate impact, meaning that if the success rate of a minority group is not within 80% of what the majority group’s success rate is, the process is presumed to be discriminatory.

In this case the failure rate for African-American candidates for the written exam was reportedly 37%, while just 11% for whites. Analyzing this from the perspective of pass rates, 89% of whites passed compared to 67% of African-Americans. This equates to 67/89 = 75%. Alternatively, a white failure rate of 11% compared to an African-American failure a 37% rate equates to a difference of 29.7%. In either case, the 80% rule would have been violated.

Under the terms of the consent decree, the city has agreed to notify those who may have been adversely impacted by the discriminatory process (including those not hired as well as those who were hired but later than they should have been); implement a new selection process under the auspices of a Consent Decree Compliance Officer; establish a $980,000 settlement fund to compensate those who were adversely impacted; establish a procedure by which claims will be handled; the priority hiring of those who were wrongfully not selected; and appropriate retroactive seniority and hiring bonuses for incumbent firefighters who were disadvantaged by the process.

Here are copies of the complaint and consent decree.