Affirmative Action in Action: Overhaul of the Fire Department of New York Hiring Practices

Photo by: James Clayton

Almost 200 white firefighters rallied outside the Federal District Court in Brooklyn, New York earlier this month to face Judge Nicholas G. Garaufis to voice their outrage over his rulings that some have called “a perversion of justice.”  Judge Garaufis’ ruling will require an overhaul in hiring practices to hire more minority candidates, which could end up costing New York City $70 million.  Over the span of four days, Judge Garaufis heard grievances from 38 New York firefighters. “I would not want anyone crawling down a smoke-filled hallway who was hired on a quota system,” said Trent Coppolo, a lieutenant in the Fire Department.  Coppolo called the judge’s rulings “an absolute insult and slap in the face.”

The Fire Department of New York (FDNY) is the largest municipal fire department in the United States, and the second largest in the world after the Tokyo Fire Department.  As a native New Yorker with four relatives as members of New York City’s Bravest, FDNY is an acronym I learned at a young age and grew to love.  New York’s fire department is known throughout the world for its courageous and heroic rescue efforts, particularly those on September 11, 2001.  An aspect kept very much under wraps for decades is its struggle with a history of alleged racially bias hiring exams.  New York City also has the least diverse fire department of any major city in America consisting of only 7.4 percent black and Latino firefighters, while the combined Black and Hispanic population of New York City makes up over half the total population.  Court documents also note that between 2001 and 2007 the percentage of black firefighters remained consistent at 3 percent of the department make-up.  The latest effort in a battle for integration that has dragged on for decades was in 2007 when the United States Department of Justice (DOJ) joined by the Vulcans Society, a fraternal organization of black firefighters, and three individual plaintiffs filed a lawsuit against the City of New York.

The Claim

The lawsuit alleged that the Fire Department of New York’s (FDNY) hiring practices violated Title VII of the Civil Rights Act of 1964, the United States and New York State constitutions, and New York State Human Rights Law.  Specifically, “[t]itle VII of the Civil Rights Act of 1964 prohibits not only intentional discrimination, but also employment practices that appear to be fair in form but are discriminatory in operation.” The Department states in a fact sheet on the FDNY case:  “A facially neutral employment practice, such as a written examination, that disproportionately excludes individuals from employment opportunities on the basis of their membership in a protected group, such as a particular race or national origin, and cannot be shown to be related to job performance, violates Title VII.”  This case has developed a lengthy timeline that includes a laundry list of court decisions.  Judge Garaufis, who has been handling this case since its onset in 2007, has become well known for dramatics in his courtroom and controversial rulings.  Judge Garaufis’ ruling on September 21 approved the FDNY’s new hiring exam, which allowed the city to immediately begin hiring a new class of firefighters after having been barred from hiring since 2010.

The Rulings and Their Impacts

Judge Garaufis ruled that the entrance exams were flawed, he even said the city had intentionally kept its firefighting ranks mostly white, and attributed the lack of integration on the six previous mayors.  In March 2012, Judge Garaufis also found the City of New York liable for wage losses of $128,696,803.  Additionally, he has ordered several changes to hiring practices at the Department, including throwing out the results of entrance exams he found to be discriminatory, designing a new entrance exam, appointing a monitor to oversee personnel decisions and ordering back pay and retroactive seniority for minority firefighters who faced discrimination.  The most controversial change is that minorities who were not hired because they failed the entrance exams must be paid a “retroactively higher salary” and receive “retroactive seniority” once they are hired through the new quota system that also will be in pace.  Retroactive seniority affects accrual of vacation and sick leave, as well as other benefits.  As stated by one of the firefighters airing their grievances, “Seniority was earned in the dead of night when these benefactors were home sleeping.”  Current firefighters also contend the remedies ordered would open the department to applicants of lower quality and take jobs away from white applicants who performed better on the entrance exams.  However, the EEOC and DOJ have concluded that the skills measured by the written Exam 6019 had no relationship to the skills necessary to be a good firefighter.  On the other side of the argument, one minority applicant stated, “I want the chance to be able to prove myself and be on the front lines.”  Andre Cuevas said he passed the test in 2002 with a score of 94 and never heard back from the department.

Constitutional Concerns 

Affirmative action is currently a hot-button issue in American politics.  The Supreme Court opened the October 2012 term by addressing issues with affirmative action admissions policies of the University of Texas.  The decision the Supreme Court renders regarding Fisher v. University of Texas could possibly end affirmative action in college admissions.  The recent ruling by Judge Garaufis has shown that affirmative action is alive and well in public employment procedures.  However, is this a proper remedy that will be upheld by the Court of Appeals?  The award of retroactive seniority may open the door to an equal protection issue in the future.

In Wygant v. Jackson Board of Education, the Jackson Board of Education attempted to preserve its affirmative action hiring efforts by entering into a collective bargaining agreement with the teachers’ union.  In the agreement, the union approved a seniority procedure that would protect minorities from layoffs.  During a layoff, minorities were passed over and more senior whites were laid off.  Thus, the layoff was based solely on race.  In Wygant, the Court considered whether a public employer may voluntarily adopt a racially-based affirmative action plan applicable to layoffs.  The Court struck down the plan in a plurality decision that held the layoff plan to be impermissible on the facts of the case.  Justice White, concurring in the plurality’s conclusion, suggested racially based layoff plans are impermissible in any context.

Public employees in the civil service, such as the members of the New York Fire Department, have a property right in their jobs.  Layoffs, if necessary, are done in reverse seniority order, meaning the last hired will be the first fired.  Here, Judge Garaufis has awarded minority firefighters retroactive seniority.  This award may cause any white firefighters currently working to be “jumped” by the new minorities who have been awarded retroactive seniority.

If the retroactive seniority will give minority workers more seniority than those already working, there may be a potential equal protection issue if the New York Fire Department ever needs to layoff firefighters because of budget concerns.  If a layoff were ever necessary, less senior white firefighters would be laid off before the new minority firefighters who were awarded retroactive seniority.  This is similar to the Wygant situation, although it may be an improper remedy because it could be considered unlawful discrimination against whites.

The appeals court will review Judge Garaufis’ ruling, but the Court may not issue its opinion for several months.  But the rulings have already impacted the New York Fire Department in a big way.  Perhaps the biggest change is that the city has been given the green light to start hiring for the first time in five years, after administering the redesigned firefighter exam in the spring of 2012.  Almost half of the 42,000 applicants who took exam were non-white, and 2,000 applicants were women.  Not only did more minorities and females take the exam, but a record number of minorities and females passed the exam.  Even the city praised the test results after fighting the court-ordered requirements.  Whatever the outcome may be, the structural discrimination the New York Fire Department has been accused of for many decades is finally on its way out.


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About Amanda Cairns, Senior Staff Writer (11 Articles)
Amanda Cairns is a May 2014 graduate of Campbell Law School and served as a Senior Staff Writer for the Campbell Law Observer. She is originally from Pleasantville, New York. Amanda is a 2011 graduate of Elon University, where she majored in Political Science with minors in Business Administration and International Studies. Following graduation, Amanda came directly to Campbell in the fall of 2011. Amanda spent the summer of 2012 as a law clerk at Clawson & Staubes, LLC and the summer of 2013 as a legal intern at Duke Energy Progress, Inc.
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