Disparate Impact and the New York City Fire Department

Recently, New York City was ordered to pay as much as $128 million in back wages to minority candidates who took the New York City Fire Department’s (“FDNY”) screening test but were never hired, according to a ruling by a federal judge who had deemed the test discriminatory in violation of the disparate impact section of Title VII of the Civil Rights Act of 1964.

Over two thousand minority applicants are likely to share in the verdict, which is intended to “recreate the conditions and relationships that would have been had there been no unlawful discrimination,” according to the Court’s order.

After four years of tenuous and querulous litigation in which the city and the FDNY was charged by the Justice Department and, later, the Vulcan Society, a fraternal organization of black firefighters, of using screening exams that had a disparate impact on black and Hispanic candidates for entry-level firefighter positions. The FDNY has remained a categorically biased organization for decades, with limited hiring of minority applicants, fewer than 3%.

Judge Nicholas G. Garaufis of Federal District Court in Brooklyn, utilized the analyses of Bernard R. Siskin., a Justice Department expert in calculating what the payout would be for these disparately impacted minority applicants.

Dr. Siskin estimated the number of applicants who would have become firefighters if black and Hispanic applicants had passed the entrance exam at the same rates as whites and calculated the wages they would have earned.

The final determined number for the payout is subject to reductions for the actual earnings of each plaintiff during the period.

Every minority applicant who took the FDNY’s screening test in 1999 or 2002 and was not selected should receive notice that they could be eligible to receive payments as a part of the class. Those applicants will then have to prove in hearings how much they actually earned during the period they could have been firefighters. Each applicant will then earn a proportion of the difference between the total earnings of the class and the $128 million.

Under Title VII the FDNY minority applicants were required to show disparate impact in the screening by:

(i) demonstrating that a respondent [FDNY] uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or

(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.

(B) (i) With respect to demonstrating that a particular employment practice causes a disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decision making process are not capable of separation for analysis, the decision making process may be analyzed as one employment practice.

(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.

(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.

(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a claim of intentional discrimination under this subchapter.

Here, the FDNY minority applicants were able to represent that the test in itself disparately impacted minority impacts compared to the rest of the field.  As such, their claim was meritorious.  Hopefully this hard hit for the FDNY and New York City will lead to more progressive testing and minority applicant hiring.  New York City is an extremely diverse place, which is something we take pride in as New Yorkers. The FDNY should celebrate this diversity as well.

If you believe you or your family member was and/or has been discriminated against in the workplace, please do not hesitate to contact The Law Office of Risman & Risman, P.C. at (212) 233-6400 or contact us online.

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