Scorching FDNY Bias Order Loses Some Heat

MANHATTAN (CN) - The "distressing pattern of limited FDNY minority hiring" does require oversight from a monitor, but a federal judge went too far in his scathing ruling against New York City, the 2nd Circuit ruled.

U.S. District Judge Nicholas Garaufis had appointed the monitor in 2010 to watch over the city's shoulder and ensure its implementation of the reforms he ordered against the FDNY for maintaining a "stubborn bastion of white male privilege" for 40 years.

The court had previously found the city liable for disparate-impact discrimination, as well as having engaged in a pattern or practice of intentional discrimination against black firefighter applicants. Among it findings, the court concluded that the FDNY excluded black and Latino applicants for entry-level firefighting positions with nonessential screening questions in the examination.

A divided three-judge panel of the 2nd Circuit affirmed Tuesday that "the principal components of the injunction are appropriate," but said "several modifications must be made."

The biggest upset came with the court's rejection of the "disparate impact" conclusion Garaufis adopted at summary judgment. This issue requires proof of the city's intent to discriminate against black firefighters, and should have been decided at trial, according to the ruling.

Now, Mayor Michael Bloomberg and the city's top lawyer will no longer need to run their submissions by the monitor. The city will not need to hire an outside recruitment consultant, nor will it have to immediately provide the monitor will all written communications of hiring decisions.

The four-page order lays out additional extensive changes, but it does not address the issue of back pay, which the city may have to provide black and Latino applicants whom discrimination allegedly kept out of the departments ranks.

This figure faces a cap of $128 million, but New York City has insisted that any cash damages should be far lower.

The 2nd Circuit gave some credit to the city's claims that Garaufis has displayed a bias that warrants his recusal from all future issues related to the case.

"We have no doubt that Judge Garaufis is an entirely fair-minded jurist who could impartially adjudicate the remaining issues in this case, but we think a reasonable observer would have substantial doubts whether the judge, having branded the city's evidence 'incredible,' could thereafter be impartial in assessing the truth of conflicting evidence at a bench trial, the parties having waived a jury trial," Judge Jon Newman wrote, joined by Judge Ralph Winter.

While a different judge must preside over a bench trial of that issue, Garaufis will continue sorting out other aspects of the case.

In a dissent, Judge Rosemary Pooler defended the finding of "disparate impact" on summary judgment, which she said was supported by "overwhelming statistics proving discriminatory intent."

The nuanced, 82-page ruling was seen as a "victory" by both the city and the Vulcan Society, an organization representing black firefighters that joined the suit after it was filed by the U.S. government in 2007.

New York's legal chief, Michael Cardozo hailed the lifting of "onerous legal requirements" and noted that the city is now engaged in a multimillion dollar outreach effort toward its diversity goals.

"We are extremely pleased that the Second Circuit recognized significant problems in the manner in which the District Court handled the case," Cardozo said. "This lawsuit was filed to address a relatively narrow issue involving two now expired exams, conducted in 1999 and 2002, but was inappropriately used as a vehicle by the court to justify judicial intrusion into virtually every aspect of FDNY hiring.

Representing the Vulcan Society, the Center for Constitutional Rights legal director Baher Azmy announced a plan to move ahead and win the disparate impact case.

"This decision reaffirms that discrimination is deep and wide in the FDNY, and confirms that the fire department needs independent oversight," Azmy said. "We are very pleased that the city will remain under the court's watch as it hires qualified new firefighters and provides back pay to those who were unlawfully excluded."

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