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Life Tenure

July 27, 2009

Last week, federal district judge Nicholas Garaufis ruled for the plaintiffs on a motion for summary judgment in a case alleging the Fire Department of New York’s  written recruit test violates Title VII of the Civil Rights Act of 1964 by disadvantaging women and minority applicants. The decision, which many see as inconsistent with the recent ruling of the Supreme Court of the United States in Ricci v DeStefano, demonstrates how little the Supreme Court’s decision has resolved.

In ruling for the the Civil Rights Division of the U.S. Department of Justice and the FDNY’s Vulcan Society, Judge Garaufis found that the written test, which all FDNY applicants must pass to become firefighters, required an inappropriately high reading level and posed questions in a complicated way that produced a disparate impact on minority applicants.  In essence, he saw little relationship between the aptitudes required to perform firefighting duties effectively and those examined in the test.

Of FDNY’s 11,500 firefighters, the city officials confirm only 363 are African-Americans and just 735 are of Hispanic origin.  For many, this fact alone would suggest the testing process has a disparate impact.  But the judge did not take the complaint at face value and considered all of the evidence presented before determining that the plaintiff’s case was overwhelming.

In a city renowned for both its rich cultural diversity and instances of incredible intolerance, the fact its fire department remains a largely white-male bastion should provoke a sense of worry if not shame.  Instead, some firefighters, perhaps emboldened by the Ricci decision, quickly raised their voices in support of the status quo arguing that written tests of the kind favored in New York remain a sort of gold standard for sorting the wheat from the chaff.

Richard Levy, a lawyer for the plaintiffs, argued that written exams do not adequately address quality such as “integrity, physicality, teamwork, and cooperation,” which level the playing field for minority applicants.

To its credit, the City of New York has already taken steps to redress the wrongs created by its testing practices.  A new test administered by the city in 2007 followed an intensive campaign to attract minority candidates.  More than three times the number of African-Americans and twice the number of Hispanics took this test compared to those who sat for the previous, disputed exams.  Of those who participated, 38 percent achieved passing scores, and 33 percent were among the top scoring candidates.  In the most recent class of graduating recruits, one-third of the new probationary firefighters were minorities, making the class the most diverse in the city’s history.

In a city where African-Americans and Hispanics each make up 27 percent of the population but only three and six percent of the fire department respectively, the chance to gain employment with the city as a firefighter is a chance to secure a position in the middle class.  Few people besides a federal judge who enjoys life tenure can appreciate the importance of such secure employment.  Besides ensuring a reasonable living, it provides an opportunity for those successful in acquiring it to act in a way that builds character and community.

The fire department and the City of New York should not consider this decision a loss.  In the long run, they will be bigger winners than the plaintiffs as the fire department begins to better reflect the values of the community it protects.

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