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Agreement in Principle to Settle United States v. City of New York for $98 million

On March 18, 2014, the Department of Justice announced that it has reached an Agreement in Principle for a $98 million settlement in the 2007 case United States v. City of New York, in which the Plaintiff argued that the New York City Fire Department’s (FDNY) has discriminated against African-American and Hispanic candidates. The Plaintiff and Plaintiff-Intervenors alleged that two of the examinations that had been used by the FDNY to screen entry-level firefighter candidates disproportionately excluded African-American and Hispanic candidates. The lawsuit arose from a long history of research, discussion, litigation, activism, and policy action aimed at addressing the extreme underrepresentation of minorities in the ranks of the FDNY, which is undisputed.

In July 2009 Judge Nicholas G. Garaufis of the Eastern District of New York acknowledged the pride that New York City takes in its firefighters, and in particular of their inspiring response to the events of September 11, 2001, but then went on to agree with the Plaintiffs that the FDNY’s hiring policies were discriminatory and illegal. Then in May 2013 the Second Circuit Court of Appeals effectively upheld the ruling, ordering only a few revisions including, most notably, the replacement of references to “intentional discrimination” with alternative language such as “unlawful disparate treatment.” With the Appeals Court’s ruling the District Court moved into its second, “remedial” phase, starting the negotiations that led to this landmark agreement to settle the case for $98 million.

The fundamental question on which the Appeals Court agreed with Judge Garaufis is whether a hiring practice that “facially neutral,” subjecting all individuals to the same test, can be discriminatory insofar as it consistently produces disparate results for majority versus protected minority candidates. The Court ruled that, whether intentional or not, the net effect of the FDNY’s hiring policy was to put African-American and Hispanic candidates at a disadvantage relative to others. The Court further rejected the City’s “business-necessity” defense, concluding that the Defendant had not shown that the exams in question were appropriate tests of a candidate’s ability to do what the job requires and that alternative means of screening entry-level candidates were available which would not have the same discriminatory effect. In fact, the Court ruled that that the City of New York had “failed to raise a triable issue that this disparate impact was the result of business necessity.” The Court therefore concluded that the FDNY’s use of the exams as part of its hiring process was therefore discriminatory and unlawful.

The District Court has also ordered several remedial changes to the FDNY’s hiring policies. The FDNY was ordered i) to replace its discriminatory exams with alternative testing procedures developed under the Court’s supervision, ii) to identify 293 individuals who are currently eligible and currently qualified to be entry-level firefighters, iii) to offer priority hiring at a rate of two black priority hires and one Hispanic priority hire out of every five hires, and iv) retroactive seniority for candidates whose hiring was delayed as a result of discriminatory hiring policies.

If you believe you have been discriminated against by an employer, please contact the Harman Firm P.C.

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