President Barack Obama’s nominee for labor secretary Tom Perez is taking heat from New York City firefighters for his support of racial and gender quotas.
The Department of Justice filed a discrimination suit against the New York City Fire Department in 2007 because too few minorities passed the department’s entry exams. The DOJ cited the legal theory of "disparate impact," which holds that even seemingly neutral criteria such as impartial exams taken by all applicants can be considered discriminatory if they disproportionately keep a protected racial class from receiving employment.
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A federal judge in Brooklyn awarded $128.7 million to minorities who failed to pass the 1999 and 2002 exams in 2009. As head of the Department of Justice’s civil rights division, Perez—who since October 2009 has used his office to actively defend the theory of disparate impact—is helping defend the judgment against the city’s appeal.
Merit Matters, a group of New York City firefighters that has been critical of racial and gender quotas, slammed Perez and the DOJ for placing political correctness over the safety of firefighters and residents of America’s largest city.
"Tom Perez and other ideologues are making a dangerous job more dangerous all because they don’t like the way the fire department looks," said Paul Mannix, Merit Matters president. "If diversity is your number one goal, then safety and competence can’t be."
Mannix is a deputy chief in the FDNY, the second highest rank in the department. He passed four separate promotional exams, which include technical questions regarding firefighting tactics, strategy, and tools. He spent hours preparing for each one and said the objective standards benefit the fire department and the general public.
Federal Judge Nicholas G. Garaufis and the Department of Justice disagree. They say the examination constituted an unnecessary burden on minority candidates because reading comprehension is not necessary to battle blazes.
"The court found that the city’s use of the written examinations had an unlawful disparate impact on black and Hispanic applicants and could not, as the law requires, be justified as job-related and consistent with business necessity," the Civil Rights Division website says.
Judge Garaufis relied on the testimony of testing specialist Dr. Joel Wiesen, who found that the entrance exam’s reading level exceeded that of the firefighting academy despite the fact that "Dr. Wiesen did not asses [sic] the reading level of the academy’s training materials."
"The city has not provided sufficient evidence that [the 1999 and 2002] exams … were a ‘representative sample of the content of the job,’" Garaufis ruled, adding that oral skills were more appropriate measure.
The city contested that administering more than 1,000 oral exams was an undue burden. Mannix said the written exams were needed.
"They said that because we communicate verbally at the scene of a fire, that’s what’s important; but, in order to do that in competent manner, to communicate intelligently, you have to read the manual and understand the material," he said.
Mannix said the department now handles medical calls, building inspections, radiation testing, and scores of responsibilities that require cognitive intelligence, as well as brute strength. The DOJ’s weakened requirements have hurt the department, he said.
Garaufis ordered the department to enhance the presence of minorities in its next academy. FDNY officials responded by accepting record numbers of city EMTs, who are more likely to be minorities. The New York Post reported in March that the new academy class is "failing the Fire Academy in record numbers" because candidates are "older, weaker, and fatter than those in previous years."
"There are a lot of people saying this is the worst FDNY class in the department’s history," a source told the Post.
A veteran firefighter told the Washington Free Beacon the new firefighters posed a threat to public safety. He spoke on condition of anonymity because he feared for his job.
"I’ve met a few of these guys and I gotta tell ya [sic] they are going to make people less safe," he said. "The DOJ is imposing its own standards without any consideration for firemen or the people that depend on us."
Mannix began fighting affirmative action and political correctness in city firehouses because he feared the quota system would endanger his peers and city residents. He served as a city cop from 1983 to 1988 before joining the fire department and witnessed firsthand the "dangerous effects of disparate impact." Minorities successfully sued the NYPD alleging disparate impact because too many failed the 1983 sergeants exam.
"Only 68 [minority candidates] passed, but the NYPD was forced to promote hundreds of people who failed," he said. "I worked under these guys and they had no idea what they were doing … they put us in harm’s way and I told myself I wouldn’t be silent anymore."
He formed Merit Matters in September 2009 and has since attracted hundreds of supporters within FDNY ranks, including minorities and women. He said Perez’s embrace of disparate impact should disqualify him from running the Department of Labor because it promotes "double standards … to benefit people based on their group, rather than individual ability."
"Disparate impact is a farce and the idea that cognitive testing isn’t important is nonsense," he said. "We want everybody treated fairly, objectively. I thought that was the whole point of civil rights: If you can do your job it doesn’t matter what skin color or gender you are."
Perez has gone to great lengths to defend disparate impact legal theory, according to the House Oversight Committee.
He allegedly urged career federal attorneys to drop a $200 million whistleblower lawsuit against St. Paul, Minn., if the city withdrew a Supreme Court appeal that threatened to overturn disparate impact, according to a committee report. Senate Republicans grilled Perez on the alleged quid pro quo during his confirmation hearing before the Senate Health, Education, Labor, and Pensions committee in April.
"You were worried that the Supreme Court might limit [disparate impact theory], were you not?" asked ranking member Sen. Lamar Alexander (R., Tenn.).
"Sure I was—bad facts made bad law," Perez said.
Mannix countered that bad law makes for bad public safety.
"Disparate impact and [racial and gender] proportionalism for its own sake is going to get people killed," he said.
Perez’s confirmation process will resume on May 8.