Wednesday, May 29, 2013

The Bloomberg Dilemma

Mayor Michael Bloomberg

In May of 2007, the United States filed suit against the City of New York in the United States District Court for the Eastern District of New York (case number 07-cv-2067).

The United States alleged that since 1999, New York City discriminated against black and Hispanic applicants for the position of entry-level firefighter in the FDNY.

Specifically, the United States challenged the City’s use of Written Exams 7029 and 2043, first administered in 1999 and 2002, respectively, in its hiring process for the position of entry-level firefighter. The United States alleged that the City’s use of these examinations had an unlawful disparate impact on black and Hispanic applicants and was not adequately job-related and thus failed to determine who was or was not qualified for the job of entry-level firefighter.

Today, in the wake of the 2nd Circuit Court of Appeals granting the City’s challenges to the CCR/Vulcan Society lawsuit, the Bloomberg administration finds itself in quite a dilemma.

The Bloomberg administration DID NOT appeal the entire Garaufis decision, letting stand the disparate IMPACT claims, resulting in the “priority (quota) hires,” back-pay and retroactive seniority, etc., it ONLY appealed the disparate TREATMENT portion of the decision of the decision, that portion that charged the Bloomberg administration with “intentional discrimination.”

The dilemma the City faces is clearly laid out above, given that the disparate TREATMENT stems from and is rooted in the well known and disparate IMPACT such standardized exams have always had, the deliberate and willful use of such an instrument seemingly amounts to disparate TREATMENT (“intentional discrimination”). Given that the Bloomberg administration supports the disparate impact judgment, their deliberate use of instruments (standardized exams) known to deliver such disparate impacts appears to undermine their defense of disparate TREATMENT/"deliberate discrimination".

From the start, Merit Matters has supported high standards (BOTH written and physical) as not only being “job-related,” but necessary to meet even the most basic requirements to be considered “trainable” as a firefighter. As a result, Merit Matters has vehemently opposed the widespread and longstanding abuses and misuses of disparate IMPACT rulings.

Sadly, for the Bloomberg administration and both the FDNY and public safety in the City of New York, the Bloomberg administration has NOT supported higher standards, nor opposed disparate IMPACT. As a result, from Merit Matters' vantage, so long as the City of New York, under the aegis of the Bloomberg administration acknowledges the legitimacy of disparate impact policies and CANNOT defend such standards as “job necessities,” then they ARE indeed GUILTY as CHARGED in engaging in disparate TREATMENT (“intentional discrimination”).

Unfortunately for the City, the Bloomberg’s “best defense” is NOT, “Whoops! We didn’t mean it,” that’s absurd, not only have the “disparate impacts” of such standardized exams been well documented for as long as such records have been kept, it’s impossible for a city that’s been sued numerous times before over EXACTLY that issue to be unaware of that.

Consider that the current standards are so low (Grade School, 7th & 8th Grade reading levels) as to be significantly too low and to claim, merely because of a disparate impact, very possibly due to the low number of applicants (the percentage of blacks who took the 7029 exam (1999) was 10.9%, while for the 2002 Exam (2043), the percentage of blacks taking the exam actually dropped to 8.5%. Those numbers pale in comparison to the number of black applicants to all other City agencies (citywide non-Latino blacks comprise 23% of New York City’s population and 36% of its Municipal workforce), BUT they are much more in-line with the number of blacks serving as Volunteer firefighters in even the predominantly black communities surrounding New York City, where the Volunteer Fire Departments in those predominantly black areas are virtually all white.

Moreover, when standards drop below a certain level, (for instance 7th & 8th Grade reading levels for a job that requires a High School diploma...effectively a 12th grade reading level), then disparate impact should not be taken into effect.

Ironically enough, Merit Matters has consistently made more and better arguments for the Bloomberg administration’s actual defense than they have!

The City’s attorneys have shown either bias or incompetence in their approach this lawsuit. After all, IF the City of New York and the Bloomberg administration believe disparate IMPACT is viable and necessary then the Bloomberg administration IS absolutely GUILTY of deliberate disparate TREATMENT/discrimination. ONLY by opposing disparate IMPACT and arguing for these most basic standards’ "job necessity" should the Bloomberg administration have any hope of escaping the charge of deliberate discrimination/disparate TREATMENT.

Tuesday’s decision was NOT a “victory,” not for merit and standards, nor for public safety. It was a mere temporary reprieve for the Bloomberg administration, which must now hope to prove that by deliberately using an instrument long known and well documented to have had a negative and consistent disparate impact on various ethnicities, it somehow did not intend to deliberately discriminate.

Such an argument strains credulity because it is in every sense unbelievable.

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