Federal Judge Imposes Racial Quota on FDNY, Responding to Minorities Who Failed Entrance Exams

Elizabeth Harrington | July 16, 2012 | 10:45am EDT
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(CNSNews.com) – A federal judge is ordering the New York City Fire Department to implement racial quotas to address grievances from minorities who failed entrance exams.

On July 5 in Brooklyn, Nicholas G. Garaufis, a Clinton-appointed judge for the Eastern District of New York, issued a ruling that requires two of every five newly hired fireman to be black and one of every five, Hispanic -- until the department has fulfilled the court-ordered quota of 186 black and 107 Hispanic hires.

The ruling allows back pay -- totaling an estimated $128.7 million -- for minorities who failed written tests.

The court order is a response to a lawsuit alleging that two placement exams (Written Exams 7029 or 2043) for the FDNY were discriminatory against blacks and Hispanics, because fewer minorities passed the exam than whites.  (See copies of the exams here.)

The Justice Department’s Civil Rights Division is responsible for prosecuting cases under Title VII of the Civil Rights Act of 1964.  The DOJ claims the written exams had an “unlawful disparate impact,” causing fewer minorities to be hired.

“Title 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.”

Judge Garanufis ruled that any black or Hispanic individual who failed either written exam with a score of 25 out of 100 or higher is eligible to receive place on the priority hiring list as well as damages, including “non-economic damages.”

Non-economic damages are intended to compensate for the “lost intangible benefits of being a firefighter.”  The intangible benefits include “prestige, job satisfaction, camaraderie, unique excitement, enjoyment of flexible scheduling, unusual employment stability, feeling of security derived from retiring with a full pension and lifetime medical benefits, and the potential for career advancement.”

All new hires must pass an updated test—Exam 2000—as long as it is found to comply with Title VII of the Civil Rights Act, the ruling states.

Further, Judge Garanufis ruled 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. Retroactive seniority affects accrual of vacation and sick leave, among other benefits.

The Bush Justice Department filed suit against the FDNY in May 2007, challenging the exams that were first administered in 1999 and 2002.  In July 2009, Judge Garaufis ruled that New York City had violated Title VII of the Civil Rights Act, and then in 2010 he found the city liable for “intentional discrimination against black applicants,” according to the DOJ.

In a previous ruling, Judge Garaufis accused the FDNY of being a “bastion of white male privilege.”

"While the City's other uniformed services and fire departments across the country have changed to reflect the communities they serve, employment as a New York City firefighter -- arguably 'the best job in the world' -- has remained a stubborn bastion of white male privilege," Garaufis wrote in October 2011.

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