Judge Halts City From Using Exam Results to Hire Firefighters

Mark Fass

08-05-2010

A federal judge has temporarily enjoined the New York City from using its current examination for appointing entry-level firefighter candidates.

"Because the test questions do not measure the abilities required for the job of entry-level firefighter, the examination cannot distinguish between qualified and unqualified candidates, or even between more and less qualified candidates," Eastern District Judge Nicholas G. Garaufis wrote in United States v. The Vulcan Society Inc., 07-cv-2067.

"What the examination does do is screen and rank applicants in a manner that disproportionately excludes black and Hispanic applicants. As a result, hundreds of minority applicants are being denied the opportunity to serve as New York firefighters, for no legitimate or justifiable reason," the judge said.

Judge Garaufis left the door ajar for the use of the exam, ordering a hearing to discuss why, after Mayor Michael Bloomberg recently advocated closing 20 fire companies and reducing staffing at 60 others, the city is now seeking to hire 300 new firefighters, and what "remedial measures" the court should take in light of its decision.

"We are extremely disappointed in today's decision, and are evaluating all legal options," Georgia Pestana, the chief of the Law Department's Labor & Employment Law Division, said in a statement. "If the Fire Department is not allowed to hire a new class—as the judge has now ruled—the City will have to make up for the understaffing by paying overtime at a cost of almost $2 million per month."

Judge Garaufis' 37-page decision marks the latest escalation in the often-heated fight over the firefighter exam.

The present action was filed in 2007 on behalf of the The Vulcan Society, Inc., an organization of black firefighters. The suit alleged that two exams used from 1999 until 2007 discriminated against minority applicants.

In July 2009 and January 2010, Judge Garaufis found that the city's use of those two tests violated Title VII of the Civil Rights Act of 1974 and the U.S. Constitution.

He ordered the city to compensate up to 7,400 black and Hispanic former applicants, institute priority hiring for as many as 293 of those applicants and develop a new, non-biased testing procedure for future applicants (NYLJ, Jan. 22).

Dissatisfied with the city's "chronic" and "recalcitrant" failure to comply with that order, the judge appointed former Manhattan District Attorney Robert M. Morgenthau, who had publicly sparred with the Bloomberg administration before leaving office last year, to serve as a special master charged with overseeing the remedial stage.

After city officials questioned Mr. Morgenthau's impartiality, he stepped down and Judge Garaufis appointed former Southern District U.S. Attorney Mary Jo White, a partner at Debevoise & Plimpton, to take his place (NYLJ, June 2).

Now the judge has found that the city's current firefighter test, Exam 6019, disproportionately impacts black and Hispanic applicants and that the city has failed to establish a business necessity for doing so.

The city administered Exam 6019 in January 2007 to nearly 22,000 job applicants—before the present suit was filed, but after the Equal Employment Opportunity Commission made the "probable cause" finding underlying the action.

The test consists of 195 multiple-choice questions that test 18 cognitive abilities (such as number facility), personal abilities (tenacity and integrity) and speed abilities (including memorization and perceptual speed).

The city established an "eligibility list" based on the exam in June 2008 and hired a new class from the list in July 2008.

Yesterday, applying detailed statistical analysis and the five-part test set forth in the 1980 decision Guardians Association v. Civil Service Commission, 630 F.2d 79, Judge Garaufis held that Exam 6019, like its predecessors Exams 7029 and 2043, discriminated against black and Hispanic applicants.

The city "has not established that Exam 6019 did what it was designed to do: determine whether candidates possessed the 18 abilities and characteristics that the City deemed necessary to the job of entry-level firefighter," Judge Garaufis wrote.

He ordered a hearing to determine whether there is a way in which Exam 6019's eligibility list could be used on an interim basis while a "new, valid selection procedure" is being developed. The judge did not schedule a date for that hearing.

The plaintiffs are represented by Richard Levy of Levy Ratner and Darius Charney of the Center for Constitutional Rights.

"If the city needs to hire, which is a little bit questionable, I think the city can hire, they just shouldn't do it in a way that's racially discriminatory," Mr. Ratner said.

@|Mark Fass can be reached at mfass@alm.com.

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