Closure in FDNY discrimination Case, $98M settlement

March 18, 2014 By Charisma L. Miller, Esq. Brooklyn Daily Eagle

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A settlement has been reached in the case against the Fire Department of New York City (FDNY) for discriminatory hiring practices, and the city has agreed to pay $98 million to resolve the case.

“We are very pleased that the city, represented by the new mayor [Bill de Blasio] and the new corporation counsel [Zachary Carter] have very early on recognized that there is no reason to keep fighting the Vulcan Society,” Dana Lossia, partner at Levy Ratner, the law firm that argued on behalf of the plaintiffs, exclusively told the Brooklyn Daily Eagle. “It is refreshing.”

The lawsuit, U.S.A. et al vs. The City of New York, et al., was first brought in 2007 by the United States Justice Department challenging two written FDNY exams from 1999 and 2002. The original allegation was that the exams resulted in a disparate impact on the amount of blacks and Hispanics applying to the FDNY. This charge was expanded to include a claim that FDNY hiring practices intentionally discriminated against blacks and Hispanics.

In 2011, Brooklyn Federal Court Judge Garaufis found racial discrimination in the FDNY’s written entrance exam as well as other FDNY hiring practices. To ensure that the FDNY “not discriminate on the basis of race against black or Hispanic firefighter candidates in the development or implementation of any process for the selection of entry-level firefighters,” Garaufis ordered a court monitor to oversee and ensure that the city and the FDNY takes “all steps necessary to eliminate the vestiges of its pattern and practice of discrimination against black firefighter candidates, to remove all barriers to the elimination of these vestiges of discrimination, and to end all policies and practices that have the effect of perpetuating the effects of the city’s discrimination against black firefighter candidates.”

In January 2012, the city filed an appeal in the 2nd Circuit Court of Appeals, seeking to reverse the finding of intentional discrimination and reassign the case to a different Brooklyn federal court judge for trial. The 2012 appeal lead to the removal of Garaufis from the disparate impact portion of the trial — disparate impact is the legal doctrine that employment practices may be considered discriminatory if they have an unjustified and adversely disproportionate impact on a particular minority group — after the Court of Appeals found that Garaufis had a “bias” against the FDNY. Many of Garaufis’ prior rulings stayed in place, notably the creation of a new entrance exam and the implementation of a court monitor.

Under the terms of Tuesday’s agreement, the FDNY will pay $98 million to those African-American and Hispanic victims of discrimination who filed claim forms and who have already been found eligible for relief by the court. The method of distribution has not yet been determined and must be approved by the court before any money is distributed. With Tuesday’s agreement in principle, the parties have committed to streamline the claims process and to expedite the distribution of monetary relief to eligible claimants.

“The $98 million settlement takes into account lost wages and lost medical coverage,” said Lossia. “The award amount does not, however, include interest earned on back pay.”

“We commend the city for its commitment to rectifying past discrimination against qualified African-American and Hispanic firefighter applicants,” stated Loretta Lynch, United States attorney general for the Eastern District.

“This settlement ends the litigation,” said Lossia. Lossia explained her caution in declaring that the entire case is over. “We recognize that cultural change takes a long time. The court monitor will oversee the FDNY exam and the implementation other regulations that the city has agreed to until 2021.”

In addition, the court has ordered the city to appoint up to 293 eligible claimants as priority hires to the FDNY, provided that they take and pass all of the same tests and other steps in the hiring process as the other candidates for appointment with the FDNY. The first groups of priority hires joined the FDNY in July 2013 and January 2014, and additional priority hires are expected to join in July 2014.

“We have shared goals: fixing the problems in the FDNY. It won’t be easy, but the city has stopped fighting. We have stopped litigating.”