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.