Court Must Correct FDNY 40-Year Record
June 26, 2012
In a city celebrated for its diversity, the New York Fire Department (FDNY) is the whitest big-city firefighting force in the nation. The FDNY has for more than a decade lagged far behind
While fulfilling one of the most vital public services, FDNY fire companies do not reflect the communities they serve. Activists, lawyers, judges, and even members of Congress have been trying to change that for four decades. Now, a case before the U.S. Court of Appeals for the Second Circuit offers the best chance to ensure that, in the future, the firefighter job will be open to all New Yorkers.
In 1963, the year before the passage of the Civil Rights Act, only 4 percent of FDNY employees were black. Ten years later, when this ratio had increased by only 1 percent, a federal court ruled that the FDNY's written entrance exam was unlawfully discriminatory and ordered it changed. But the FDNY stubbornly resisted, continuing to use tests little different from the original and rebuffing repeated requests by advocates and elected officials to revise the way it selects, and rejects, firefighter applicants.
Predictably, the glaring underrepresentation of black and Latino firefighters continued. It is as if the FDNY has been frozen in time, impenetrable, even as racial discrimination barriers in other professions came down in the wake of landmark civil rights legislation and lawsuits over the past four decades.
Advocates and activists persisted, once again looking to the courts for help. In 2010, in a federal class-action suit by the Center for Constitutional Rights, United States and the Vulcans Society v. City of New York, a federal judge ruled that FDNY's written exam was arbitrary, not validated, unrelated to job performance and still, nearly four decades later, unlawfully discriminatory.
This time though, the court also found that 40 years of illegal testing had infected the entire hiring process, and the test revision was just part of broad reforms that were ordered throughout the department. Though the FDNY has finally acknowledged that the exam is unfair, it is, characteristically, objecting to the other improvements aimed at correcting the effects of 40 years of discriminatory testing. They appealed the judges' ruling, and the Second Circuit will hear arguments in the case today.
At the heart of the case is Title VII of the Civil Rights Act, which empowers courts not only to halt discriminatory employment practices, but also to rectify the deep, lasting effects of those practices. When Congress extended Title VII to cover public employers in 1972, it had fire departments especially in mind. Wherever there has been progress in diversifying fire departments, courts have been essential in making it happen.
The FDNY epitomizes the very intractable, institutionalized obstacles to equal employment opportunity that Title VII was enacted to tear down. FDNY recruitment, for example, is still largely conducted by word-of-mouth. Firefighters have traditionally encouraged relatives and others within their communities to follow in their footsteps and, unsurprisingly, when groups of mostly white firefighters have mostly white friends and family, most firefighting applicants will be white.
A highly subjective and arbitrary candidate background investigation process rife with nepotism tends to unfairly privilege whites with friends and family members in the FDNY while at the same time often arbitrarily excluding black and Latino applicants, who, given the state of our criminal justice system and the New York Police Department's equally troublesome record on race, are more likely to have minor arrests in their background and thus be classified as "unfit" for the firefighter job.
An FDNY that is largely white today will remain largely white unless there is a significant intervention that addresses the ongoing practices that perpetuated the status quo for decades.
That is exactly what the court had ordered in the Vulcans case and what the Second Circuit should uphold in its review of the case. The legacy of racial exclusion in the FDNY can, and must, finally be put behind us.
Randolph M. McLaughlin
The author is co-chair of the civil rights
practice group at Newman Ferrara