Federal Judge: FDNY Hiring Tests Discriminatory

Newsday - October 20, 2010

by JOHN RILEY

Blasting the Bloomberg administration for "capriciousness" and "duplicity," a Brooklyn federal judge Tuesday permanently enjoined New York City from hiring firefighters until it designs a nondiscriminatory test, and the city said it would appeal.

The sharp language from U.S. District Judge Nicholas Garaufis, who has ruled over the past year that minorities are under-represented in the FDNY's ranks and the latest test discriminates, was the most recent and most pointed in a series of verbal skirmishes with the city and Mayor Michael Bloomberg.

This time, the judge complained that the city had at one time declared that new hiring off the latest test, known as Exam 6019, was a public safety emergency, and had suggested a method of racially proportionate selection to avoid the judge's finding that the test was discriminatory - only to reverse course, denounce any use of racial proportions as "illegal" quotas, and say it could do without new hires.

"The city's shifting and contradictory positions have needlessly diverted the parties from the critical work of developing a new examination," Garaufis wrote. "The city gave hope to candidates who took Exam 6019, only to capriciously dash that hope based on contrived and fundamentally irreconcilable positions.

"With its hyperbolic - and ultimately baseless - claims regarding public safety, the city has needlessly jeopardized its own credibility in the areas where it matters most. While the court is dismayed by the city's apparent duplicity and lack of good faith, it is not entirely surprised. This is simply the latest episode in the city's long campaign to avoid responsibility for discrimination in its Fire Department, whatever the cost."

The 11,214-member FDNY is 89.6 percent white, 6.4 percent Hispanic and 3.2 percent black. When Garaufis found the latest test had been discriminatory, he gave the city five options for immediate hiring that involved either random selection or matching the racial proportions of the 21,000 test-takers - 60.7 percent white, 18.4 percent Hispanic and 17.4 percent black.

The city rejected all those options last month, calling them quotas, and said it preferred to forgo any hiring until a new test is designed. The judge's preliminary rulings were not appealable, but by effectively forcing Garaufis to issue a permanent injunction, the city gained the opportunity to appeal to the Second U.S. Circuit Court of Appeals.

The city's law department, in a statement, also denied the judge's charge of legal duplicity, saying that he oversimplified their past positions.

"The statements that the city has not acted in good faith and has been duplicitous are neither fair nor accurate," said Georgia Pestana, chief of the employment law division.

The lawsuit was filed in 2007 by the federal government and the Vulcan Society, an organization of black firefighters.