“Being a firefighter is more than knocking down doors and carrying a hose,” NYC Councilman Dan Halloran
U.S. District Court Judge Nicholas Garaufis claims the city favors white firefighters and turns minorities away, via its written exam. Photos by Michael Lanza
The FDNY may have to hire two black and one Hispanic applicant out of every five new firefighters chosen, after a federal judge ruled that the department had engaged in intentionally discriminatory hiring practices.
Last week U.S. District Court Judge Nicholas Garaufis ruled that written exams administered to FDNY applicants in 1999 and 2002 were biased and ordered that the city create a new test and establish a process for the victims to receive monetary compensation and retroactive seniority.
Approximately 7,400 minority members took the exam, but of those only 293 — the number of applicants the judge says would have passed at the same rate as whites if the test had been fair — will be given priority hiring. Two blacks and one Hispanic from the pool will be chosen as part of every five new individuals hired by the FDNY.
The ruling came as a result of a lawsuit filed by the Department of Justice and the Vulcan Society, a fraternal organization of black firefighters who have continuously criticized the lack of ethnic diversity in the FDNY and claim the exam is not the only reason why the disparity exists.
“They need to put some serious effort and resources into recruitment and getting the word out in the black community,” said Paul Washington, past president of the Vulcan Society. “It is not widely known in the black community how good the job is.”
Leroy Gadsden, the president of the Jamaica chapter of the NAACP, believes that the strong traditions associated with the FDNY have made the force resistant to change. “They don’t have to reinvent the wheel,” Gadsden said. “There are many states that have successfully integrated minorities into their fire departments. It’s simple. They just have to change their mindset.”
Area officials expressed mixed opinions about the outcome of the case.
City Councilman James Sanders (D-Laurelton) believes the FDNY is lagging behind other city agencies in diversifying its force. “The majority of people in New York are minorities and the FDNY is not reflecting that,” Sanders said. “It is the worst of the uniformed services in that respect.”
City Councilman Eric Ulrich (R-Ozone Park) disagrees, saying the FDNY “spends a considerable amount of time trying to diversify the department.” Ulrich believes the decision may anger others who will think they have been slighted by any “priority hiring.”
“A government mandate in the form of a quota or a system that gives a leg up to one person and not another will not solve the problem,” Ulrich said, adding that the department should not be “tailoring standards.”
City Councilman Dan Halloran (R-Whitestone) echoed Ulrich’s sentiments, saying the FDNY has consistently reached out to minority communities over the last 10 years. He disagrees with the judge’s ruling and believes the city should appeal and will win if it does. Halloran opined that the FDNY exam tests precisely the skills needed to perform the job.
“Being a firefighter is more than knocking down doors and carrying a hose,” he said. “They have to understand the science of fires and that requires academic training. They also have to be trained to handle terrorism issues as well as biological and radiological issues and that means reading books.”
In the 2009 case of Ricci v. Destefano the U. S. Supreme Court ruled that New Haven officials had violated the Civil Rights Act when they invalidated the test results for a management promotion because black firefighters hadn’t scored high enough. Because the test was thrown out 17 white firefighters and two Hispanic firefighters who did qualify didn’t get the job.
Inquiries about the New York case made to the FDNY and the city’s Department of Administrative Services — the agency that creates the exam — were referred to the city’s Law Department.
“Contrary to the Court’s opinion, it is the city’s view that there is simply no evidence that the city ever intended to discriminate against black applicants,” Georgia Pestana of the Chief, Labor & Employment Law Division of the NYC Law Department said in a prepared statement.
Darius Charney, an attorney with the Center for Constitutional Rights, who is representing the Vulcan Society, says it isn’t any one particular question on the FDNY’s 107-page written exam that is racist, but rather that it fails to meet the validity criteria set forth by the 1964 Civil Rights Act.
In order to file a lawsuit, the plaintiffs must first prove that that there is a great disparity in the test results of white versus minority applicants. Of the approximately 11,000 members of the FDNY only 3 percent are black and 5 to 7 percent are Hispanic, Charney said. Next, the court must determine whether the exam is valid — that it tests knowledge necessary to be a firefighter.
In the case of the United States of America and Vulcan Society, Inc. v. the City of New York, the judge found the exam to be invalid because it only tested cognitive skills — reading and written comprehension. “The exam did not test oral comprehension and oral communication, which the FDNY says is more relevant to being a firefighter,” Charney said.
Other relevant skills include: integrity, cooperativeness, teamwork, interest in being a firefighter, physical ability and empathy, according to Richard Levy, a lawyer who is also representing the plaintiffs. He contends that firefighters do not need to read quickly or write extensively when rushing to a fire scene and therefore those abilities should not be the main focus of the FDNY exam.
When asked why minorities do not perform as well as their white counterparts, Levy said a multitude of factors including economic circumstances, schooling and income come into play.
“They can come up with a test for the Police Department and the Corrections Department — jobs that require carrying a gun and having a great deal of authority — that don’t discriminate, but they can’t do that with the Fire Department?” Levy asked.
If the judge had ruled that the FDNY exam was valid, the plaintiffs would have still had an opportunity to win their case by trying to prove that another test given by a city agency was equally valid and yet did not result in the same racial disparities.
As a result of the judge’s ruling, all the plaintiffs, not just the 293 selected for priority hiring, may be eligible to collect damages for the shame and humiliation they may have experienced as well as the back pay, health and pension benefits they would have received if they had been hired. They have the option of suing as a group or hiring their own lawyers to seek individual compensation.
City Councilman Peter Vallone Jr. (D-Astoria) disagrees with the judge’s ruling and contended that there are many reasons why people gravitate toward different professions.
“The top requirement in a job involving saving lives should always be merit,” he said. “The test was examined by experts and there has been no proof that it is biased. The ruling went way too far. Taxpayer funded back pay without evidence of bias is absurd.”
City Councilman Leroy Comrie (D-St. Albans) is doing his part to ensure that the FDNY is more ethnically diverse. He has proposed legislation that would allow any New York City firefighter candidate who has a diploma or GED from a city high school or testing center to receive an additional eight-point credit on the firefighter exam. He will reintroduce the legislation at the next scheduled City Council meeting, which is at the end of the month, and he expects the bill will be passed in February.
Vallone supports the idea of giving test credits to city grads, but thinks the amount needs to be reworked.
“You can’t give eight points to a New York City High School graduate and only five points to a veteran,” Vallone said, but added that if too many credits are given out in general, it will void the exam’s attempt to gauge skill.
Comrie agrees with the federal judge’s ruling in the FDNY case and says that individual questions on the exam may have been the problem. “The focus of the questions were aimed at people who had inside knowledge of the Fire Department,” Comrie asserted. “They focused on questions that the average Joe wouldn’t know unless they had a father or brother or uncle who works for the Fire Department.” Comrie also added that the black and Hispanic caucus will ask the mayor not to appeal the decision.
The city will participate in discussions with the judge regarding his recommendations at a legal conference set for Thursday. After that, it will be placed on the court docket and the city will be forced to comply unless it chooses to appeal, a move Kate Ahlers, a spokeswoman for the city’s Law Department said officials are “contemplating.”
Questions from the FDNY exam
The following are typical questions from the 107-page test that a federal judge determined to be discriminatory.
The correct answers are provided in informative paragraphs above the questions, as they are in many parts of the test.
You are a firefighter at a fire scene, and have been attempting to remove a conscious victim from the inside of the building that is on fire. As you prepare to descend the closest set of interior stairs with your victim, you notice that more fire is blocking your path. Which one of the following should you consider using to get out of the building?
a) The closest fire escape
b) A Fire Department issued life-saving rope
c) A nearby corridor that runs horizontal to another area of the fire building that is not on fire
d) A Fire Department ladder which is placed near a window on the outside of the building
Which of the following drills is the most useful for firefighters in terms of immediately evaluating their performance at a fire scene?
a) Field drill
b) Critique drill
c) Company drill
d) Multi-unit drill
Firefighter Jacobs has just come upon a young woman who has just started bleeding profusely from the lower part of her arm. Which one of the following actions should Firefighter Jacobs take first to control the bleeding?
a) Hold the woman’s right arm above her head.
b) Apply a tourniquet just below the woman’s right elbow.
c) Press the artery that is closest to the wound against a bone.
d) Use a sterile dressing to apply direct pressure to the wound.
