By Jasmin K. Williams, Special to the NNPA from the Amsterdam News Newspaper –
The fight for fair testing and hiring practices within the Fire Department New York (FDNY) continues as an extra 30 days is granted to all parties to think about how to proceed and the city now refuses to hire new firefighters and has rejected options to revamp the current test proposed by Federal District Court Judge Nicholas Garaufis.
Last August, Garaufis ruled that the Entrance Exam 6019 was unfair because it is biased against minority candidates and does not successfully establish a difference between qualified and unqualified candidates.
The court gave the city the opportunity to chose from among five options that involved hiring individuals who had passed the 2007 entrance exam until such time that a new test is created.
The judge, recognizing the city’s hiring needs, determined that the city could do interim hiring, as long as it was done in a non-discriminatory manner. This was supported by the Vulcan Society, the professional association of Black firefighters.
The city, however has rejected all five of Judge Garaufis’ proposals, deeming them to be illegal, race-based quotas, choosing instead to delay the hiring of approximately 300 firefighters and increase overtime for current firefighters at an estimated cost of $2 million.
“The city respectfully believes that using raced-based quotas to select firefighters is both illegal and unwise public policy,” stated a letter to Garaufis from the city’s corporation counsel, Michael A. Cardozo. “For these reasons, the city declines to select any one of the five proposals offered by the Court.”
There is a need to revamp the FDNY’s disproportionately white ranks to accurately and fairly reflect the diversity of the city it serves. New York City has the least diverse fire department of any major city in America. While the combined Black and Latino population of New York City is more than half the total population of the city, Black and Latino firefighters make up roughly 4 percent and 7 percent of the FDNY, respectively. More than half of Los Angeles and Philadelphia’s firefighters and 40 percent of Boston’s firefighters are comprised of people of color.
Darius Charney, an attorney from the Center for Constitutional Rights, offered insight on the judge’s ruling and the options that were proposed.
“The goal of all five options is to ensure that if the city is to hire new firefighters while they create a new test—which they must do—the new test must not have a disparate affect on minority candidates,” Charney said.
“One option involves random selection from among the top 2,500 on the eligibility list. The list would be adjusted to ensure that the pool would include 17.5 percent Black and 18.5 percent Hispanic candidates, reflecting the number of minority applicants that took the test so that the proportions were adequate.
“Another proposal was called ‘applicant flow.’ The city has a list, which ranks applicants based on their test scores. The city has processed enough people to give 300 offers. That group would have to be adjusted to reflect the 17.5 percent Black and 18.5 percent Hispanics applicants. Some white candidates would have to be replaced.
“Another version of this option would be to bring in a class of 221 applicants, which would include 22 Black and 33 Hispanic candidates and remove from that group the lower scoring whites. This would create a class with the proper proportions. An additional 13 Black and four Hispanic candidates would have to be processed,” Charney explained.
He stated that one of the other options proposed “hiring the group of 300 right away, but a second class would be hired in January, ensuring that the two classes combined reflected the proportion of minority applicants.
“The last proposal is a hybrid approach. A group of 117 would be hired from the list of 300. This would include 20 Blacks and 22 Hispanic candidates. The advantage would be to hire from the initial group of 300 without having to go farther down the list to reflect the ration of applicants who passed the test.
“The passing rate on the test was higher for whites than Blacks or Hispanics. The problem is when you give an objective test and you see a huge disparity. You’d like to think that most employers would want to have a diverse work force,” Charney said.
“The question becomes, should you be using this test? If you get a score of 95 on this test, does it mean that you are a better candidate? The test is the same one given 40 years ago. The judge has found that this test does not accurately determine who will be a better firefighter,” Charney added.
“If you are giving an employment test that has this severe of a racial disparity then the employer better have a darn good reason to keep using this test. In July 2009, the court ruled that the 1999 and 2002 exams were not valid measures of who the most qualified firefighters would be. In August of this year, the court ruled the same thing. These are bad tests. The city has no legitimate reason to continue to use them. A candidate that passes an unfair test is no more deserving than a candidate that gets a lower score.
“This is about discrimination by an employer by using a test that does not determine the best candidate for a job and which issues a disparity to minority applicants for that job. The law is if the test has a discriminatory impact on a racial group or if the test does not measure who is the best candidate, it violates Title Seven of the Civil Rights Act of 1964.
“President H. W. Bush signed the Civil Rights act of 1991, which made it a violation of federal law to use an employment criteria such as a test or other screening method that has a discriminatory impact and that does not measure the skills required for the job,” Charney said.
“A new test could take six months to a year to develop and it would then have to be administered and scored. It could take up to two years to have a new list of applicants to hire from. All of the five options given were legal, though some were better than others. None of these approaches would force the city to hire applicants who are not qualified for the job,” Charney concluded.
A statement issued by attorneys for the Center for Constitutional Rights and the law firm of Levy Ratner, representing the Vulcan Society, said in part, “Since Exam 6019 does not predict job performance in any way, hiring from higher or lower scores makes no difference in terms of hiring the most qualified firefighter candidates. Using 6019 scores is like hiring a Major League first baseman on the basis of a written exam. The test has nothing to do with who would be the best firefighters. Yet, the city’s top attorney issued a statement asserting, ‘The citizens of this city are entitled to firefighters who are hired based on their ability rather than their race or ethnicity.’ Time and time again, the test has been shown to have no bearing whatsoever on ability. The city has chosen to ignore the court’s well-reasoned opinion that the current test does not predict better performance on the job.”
Fire Captain Paul Washington, who is also a former president of the Vulcan Society, said, “Mayor Bloomberg is a new version of George Wallace, who said, ‘Segregation now. Segregation tomorrow. Segregation forever.’ All people who demand fairness and equality have to finally stand up and say that we’re not going to let you keep this fire department all White. His not following the judge’s order and by stymieing the council’s attempts to pass the bonus points for New York City high school graduates is stopping the fire department from being integrated.”