Intentions Matter

Court partially overturns discrimination ruling against FDNY


A Federal Court of Appeals has partially overturned a discrimination suit against the New York City Fire Department initiated by the Department of Justice and later defended by Tom Perez, the head of Civil Rights enforcement and President Barack Obama’s labor secretary nominee.

The Second Circuit Court of Appeals dismissed Federal Judge Nicholas G. Garaufis’ finding that the fire department intentionally discriminated against black candidates through the use of entrance examinations.

"The 2nd circuit, we believe, correctly reversed Judge Garaufis’ determination … that there had been intentional discrimination," said New York City Corporate Counsel Michael Cardozo.

The court freed the department from many of the constraints that Garaufis imposed, including appointing a monitor to personally oversee FDNY hiring and recruitment practices for 10 years.

Instead, the monitor will only have the ability to report deficiencies, rather than prescribe policy itself. He will also only serve for five years and the department will have the ability to shorten that term.

"These requirements are an excessive intrusion into the duties of officials charged with citywide responsibilities, in the absence of either their liability or an indication that imposing requirements on the head of the relevant department will be inadequate," the court ruled.

The Department of Justice filed a disparate impact lawsuit against the fire department in 2007. The Vulcan Society, an association of black firefighters, later joined the suit and alleged that the discrimination was intentional.

The Appeals Court ruling applies only to the question of intention. The city has yet to challenge the Department of Justice’s disparate impact claims that inspired the Vulcan Society’s case.

Garaufis awarded $128.7 million to black applicants who failed the firefighters exam citing disparate impact theory, which contends that objective criteria can be considered racist if they disproportionately keep minorities out of jobs even if there is no intent to discriminate. The city will have to wait to challenge that ruling, according to Cardozo.

FDNY Deputy Chief Paul Mannix, who heads the anti-quota group Merit Matters, hailed the decision as a major victory of public safety over political correctness.

"[The decision] sets everyone back who puts group identity over individual capability," he said. "The city has bent over backwards, twisted into a pretzel to integrate. That’s not open to debate. We’ve spent north of $20 million on recruitment and put programs in place to get women and minorities into the FDNY."

Merit Matters filed an amicus brief in the city’s appeal of the disparate treatment verdict. Mannix said there is still work to be done to prevent the department from using disparate impact theory to water down firefighting standards.

"There can’t be any diluting of standards in order to push quota hires through the fire academy," Mannix said. "I have great confidence in Bureau of Training in the fire department … but if candidates don’t measure up, they can’t be kept on because of gender or skin color. It hurts firefighters and citizens of the city of all races and genders."

Perez has been a vocal advocate in favor of disparate impact. The House Oversight and Government Reform Committee is investigating allegations that Perez orchestrated a quid pro quo to prevent the Supreme Court from overturning disparate impact.

Keith Sullivan, an attorney who has represented Merit Matters pro bono for more than two years, said that he fears Perez will work to undermine the group’s battle to preserve meritocracy in the fire department’s ranks if he becomes the next secretary of labor.

"You hire the best, most qualified candidate and you’ll get the best department; the minute politics plays into vetting process, you’re no longer hiring the best candidate," he said. "What’s clear from Tom Perez and this Department of Justice is that they have a policy and practice of alleging racism where it simply doesn’t exist."

The U.S. Senate Health, Education, Labor, and Pensions Committee will vote to confirm Perez on Thursday.

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He lives in Alexandria, Va, with his wife and three daughters. His Twitter handle is @FBillMcMorris. His email address is

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