Litigation Forcing Diversity

Returning from 2011 FRI in Atlanta and making a few presentations related to Diversity and Inclusiveness and sitting on a couple of panels to articulate the issues related to Diversity and Inclusiveness I wonder if we are “getting the message on Diversity and Inclusiveness”. When looking around the classroom, those in the class “get it” and although I like speaking to them, I would rather speak to those Chiefs who “don’t get it.” Which one are you? Let’s look to see who gets it and who doesn’t.

Of the thirty thousand (30,000) or so fire departments across the country, when you look to those who “get it”, you never see their names captioned in litigation; so I for one would believe that you are the majority. Those are departments that have diversity and inclusiveness programs, have open and unbiased hiring and promotional practices and are proactive in their efforts to make the department reflect the community.

Let’s look at those who may not get it and in this series I am picking on a couple of large cities whose example can be replicated in many smaller cities across the country.

Here are a few recent and not so recent legal cases only skimming the surface as we can spend pages and hours with those cases. Let’s take the not so recent Ricci v. DeStefano, 129 S. Ct. 2658, 2671, 174 L. Ed. 2d 490, a 2009 reverse discrimination case. The City of New Haven hired some outside experts to design a promotional test for its fire officers to include a written and oral. The test was “designed” to be a comprehensive written test but when not enough black firefighters passed the test, the City of New Haven tossed the results fearing a lawsuit by the black firefighters. Surprisingly, it was the white firefighters who sued based on a reverse discrimination principle. As we are aware, the courts found for the white firefighters and promotions and back pay were awarded. The saga continues however with a recent suit filed by one of the black firefighter, involved in the original testing, against the City of New Haven. In his case, the firefighter sued New Haven for disparate-impact liability, the type of lawsuit that the city had anticipated and hoped to avoid by tossing the original results. That case has not been resolved as yet.

In yet another large case, a federal judge in August 2011 ordered the City of Chicago in Lewis v. Chicago, 08-974 to hire more than 100 African-Americans as firefighters with back pay and pension payments and pay thousands of other firefighters not hired cash payments, as part of a settlement. This decision stems from a discrimination lawsuit, which has been fought for the last 13 years involving about 6,000 African-Americans who took the entry-level firefighters exam in 1995 and successfully argued they were discriminated against. This settlement also has a $30 million dollar settlement attached to it in pensions and damages to those firefighters - money the City will be hard pressed to find in its budget. The attorneys arguing this case before the Supreme Court Mr. John Payton, president of the NAACP Legal Defense and Educational Fund, Inc stated. "This victory goes well beyond the immediate results in Chicago. It should ensure that no other fire department or employer uses a discriminatory test, and the Legal Defense and Educational Fund will go the extra mile to make sure that they do not."

That sounds hopeful but in practice, we have not seen the light at the end of this discrimination tunnel.

In a separate Chicago litigation, the City was sued July 2011 by a woman firefighter who filed on behalf of women who were disqualified because they failed the firefighter’s physical abilities test. The lawsuit filed in U.S. District Court claims the test, which includes arm exercises, carrying a 2 1/2-inch hose and stair-climbing tasks designed to determine strength and endurance, has an adverse impact on female applicants and is not related to the skills needed to be a firefighter. For many women, physical abilities tests have been the major barrier keeping them from becoming firefighters. While firefighter exams have long been controversial in departments across the country, Chicago has become latest target in a legal battle over whether the test discriminates against women. The City of Chicago hired a private company to develop and administer its Physical Abilities Test, which differs from the widely used Candidate Physical Ability Test, created by the International Association of Fire Fighters. Critic’s claim Chicago's test has no uniform standards, is administered inconsistently and requires tasks that are not needed to be a firefighter. The lawsuit challenging Chicago's test alleging that it is unfair to women, who fail the test at a disproportionate rate than men. The suit, which seeks class action status, claims that the test places too much emphasis on strength, rather than firefighting skills, and that there are more equitable tests available that the city has declined to adopt. A similar lawsuit filed in 2008 by women who were denied paramedics jobs after failing a physical abilities test also is pending. This was a topic of discussion on Fire Engineering’s Fire Service Court Blog Talk Radio on August 17, 2011.

And last by no means in 2010 a Judge lambasting the City of New York in their “discriminatory” hiring practices. Federal District Court Judge Nicholas Garaufis in United States of America and the Vulcans Society, Inc. v. City of New York (Case No. CV 07 2067) issued a scathing ruling in the ongoing case against the City of New York and the Fire Department for its discriminatory hiring practices. Saying, “The City’s shifting and contradictory positions have needlessly diverted the parties from the critical work of developing a new examination,” the judge enjoined the City from hiring off the last exam in any way except for the five non-discriminatory options he had presented in his September 13, 2010 decision. As of this writing the City has not hired any new firefighters.

What am I trying to say here? We had better “get it” or your department will be having attorneys and judges performing your firefighter hiring. There are numerous examples in case law of what went wrong and it doesn’t take a lawyer to tell you how it should be done in your department. I have to say however, that many of these departments have hired experts to design and administer the testing in many of the large cities. As an “expert” myself, my only advice is to ensure that your testing procedures do not violate current laws, they are not discriminatory and they do not exclude those firefighter candidates reflecting the makeup of your community.

Sources: Numerous newspaper articles, Wikipedia, PACER, Case Law, Google and other sources.

---

ABOUT THE AUTHOR: John K. Murphy JD, MS, PA-C, EFO
Retired as a Deputy Fire Chief after 32 years of career service; is a practicing attorney and is a frequent speaker on legal and medical issues at local, state and national fire service conferences. He is a frequent contributing author to Fire Engineering and podcast host.

Copyright M2 Resource Group, Inc

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.