DemocracyNow!: Court Rules NYC Fire Dept Discriminates

June 2009




Paul Washington, past president of the fraternal order of black firefighters, the Vulcan Society.

Shayana Kadidal, managing attorney at the Center for Constitutional Rights.

AMY GOODMAN: The Somali Canadian rapper K-Naan, performing in our firehouse studio. And speaking of firehouses, today we look at the Fire Department of New York. I’m Amy Goodman, with Juan Gonzalez. Juan?

JUAN GONZALEZ: Well, a federal judge has determined the Fire Department of New York City used racially discriminatory hiring practices that unlawfully prevented hundreds of qualified African American and Latino applicants from joining the department. New York City has the least diverse fire department of any major city in the United States.

The fire department is about 90 percent white, even though African Americans and Latinos make up the majority of the city’s population. Just three percent of the city’s firefighters are black. US District Judge Nicholas Garaufis ruled that New York had used tests that discriminated against black and Latino applicants, in violation of the Civil Rights Act of 1964.

AMY GOODMAN: The ruling came in a lawsuit filed on behalf of the Vulcan Society, the fraternal organization of black firefighters. We’re joined right now by a longtime New York firefighter, Paul Washington, past president of the Vulcan Society, and attorney Shayana Kadidal, also with us. He’s a managing attorney at the Center for Constitutional Rights, the legal group involved in the case.

Well, Paul, welcome to a firehouse.

PAUL WASHINGTON: Thank you for having me.

AMY GOODMAN: How did it feel to walk into this place?

PAUL WASHINGTON: I never walked into a firehouse like this, certainly.

AMY GOODMAN: Shayana, just lay out the case.

SHAYANA KADIDAL: Sure. Well, this is what you call a “disparate impact case.” The main hurdle you have to get over as an applicant, if you’re trying to get into the fire department, is a written examination. And the written exam here weeds out minorities. We’ve known this for a long time. Minorities pass at a lower rate than whites do, and they also score in the very top tier—the people who are most likely to get hired, ninety-five out of a hundred and up—at a much lower rate than whites.

So the question then becomes, since the test weeds out minorities, is the city, nonetheless, allowed to use the test because it has some sort of very close relationship to the job skills? Are the things that the test measures things that you have to have in order to become a good firefighter? And what the court said yesterday is, not only does this test have a disproportionate impact on minorities, but that it doesn’t have any relationship to the job of being a firefighter, that people who do well on the test aren’t necessarily going to become good firefighters.

JUAN GONZALEZ: And in the process of the case, were you able to get at what the—how it was that the test was able to weed out African Americans and Latinos?

SHAYANA KADIDAL: Well, you know, I think it’s basically sort of an SAT-like test, what we call a cognitive test. It measures sort of abstract, sort of intellectual skills.

But, you know, the bottom line is that the job of a firefighter is about doing sort of skills that you learn on the job, but doing them under intense pressure, intense real-world pressure. And you really can’t measure who’s going to do well on that kind of challenge from a paper-and-pencil test that happens in a nice, little sort of classroom, right? You know, by and large, firefighting has been a sort of apprenticeship kind of job over the years. It’s something where you learn how to do it on the job. You can only really tell who’s going to be good at it once they’re sort of working at the job.

JUAN GONZALEZ: Paul Washington, talk about the test in terms of the average firefighter, because, obviously, most fire departments are sort of—you find generations of people in the fire department. “My grandfather was a firefighter, my father was a firefighter, my brother’s a firefighter.” To what degree did these family connections and preparation for these tests—were part of the culture of getting into the fire department?

PAUL WASHINGTON: Oh, yeah, family connections are very important. I know that from personal experience. My father was a firefighter, my older brother and uncle, etc. So that gave me, definitely, a big leg up in getting onto this job. There’s no question that’s a huge advantage, and that’s an advantage that very few blacks and Hispanics enjoy.

The job has—and we have to remember, there was open and blatant discrimination in the fire department for at least a hundred years. Black applicants’ applications would be thrown in the garbage. Black applicants would do well on the test and just never be called. A black applicant would have done some—committed some minor offense, literally jumping a turnstile, and he would be excluded because of that. This was rampant in the fire department for, like I say, over 100 years. So that gave whites a huge head start on this job.

And it’s also the type of job where you don’t realize how good it is unless you have some type of family connection. Most people, when they think of the fire department or becoming a firefighter, they think of the danger involved, and there is some danger involved in the job, but not nearly as much as people think. But if you have no connection, no intimate connection with it, that tends to keep you away from the job.

AMY GOODMAN: New York City has the least racially diverse fire department of any big city in the United States?

PAUL WASHINGTON: Yeah, certainly.

AMY GOODMAN: Why is this true?

PAUL WASHINGTON: Well, some of the reasons I just mentioned, and also, as Shayana said, the test that they give tends to put blacks in the middle or the bottom of the list, where we don’t get reached.

Also, the fire department, for a long time, their recruitment efforts were abysmal, pitiful, to say the least. There was very little outreach in the black and Hispanic and Asian communities in New York City. They’ve made some improvement in that, but still not nearly enough. So, those are the—you know, those are some of the reasons that combine to—

JUAN GONZALEZ: But was there also—I know that in the police department for many years there was also a psychological component to the application process, and many African Americans and Latinos were deemed psychologically unfit—


JUAN GONZALEZ: —by the review boards to get on the department. Was that the same in the fire department?

PAUL WASHINGTON: Not really. There is a psychological component, but honestly, very few blacks were eliminated in that area. But again, like I said, for minor infractions, a lot of blacks and Hispanics were eliminated. And a lot of whites who had family connections who had, you know, some pretty—you know, done some things that you would think would disqualify them, or should technically disqualify them, they were not, because, again, they had family connections.

AMY GOODMAN: Shayana, the natural question to ask right now, since the issue of diverse fire departments and tests has been very much in the headlines because of the Supreme Court confirmation hearings of Sonia Sotomayor and the New Haven case, how does this case in New York compare to New Haven?

SHAYANA KADIDAL: Right. Well, I think the New Haven case is really the opposite scenario. There, New Haven decided that the test they had been using for a long time was discriminatory in just this fashion. And so, they decided voluntarily that they were going to undertake to sort of fix that. And the question was, is that reverse discrimination somehow? You know, the question is really, how much does the city have to prove about the fact that its own test was discriminatory before they can do a voluntary sort of cleanup? Here it’s the opposite. Here, the court decided that the test was discriminatory, and the city fought it tooth and nail.

There is one aspect of the New Haven decision, though, that’s a little troubling. Justice Scalia said in a concurrence that he thought that this whole idea of sort of challenging the impact of tests, you know, this idea that you have to pick the type of test that has the least impact on minorities, that that somehow is, itself, reverse racism. And so, that might give, you know, conservatives in the city, you know, some reason to want to try to appeal this all the way to the Supreme Court.

JUAN GONZALEZ: Now, interestingly, when Mayor Bloomberg testified at the Senate hearing in favor of Sotomayor, he specifically mentioned this whole issue of the New Haven test, said he disagreed with Sotomayor on that decision, but he also sort of indicated that New York resolved this problem to some degree.

Now, the city has adopted a new test since your case started, right? And could you talk about that and what the impact has been there?

SHAYANA KADIDAL: Sure. Well, they gave the redesigned test in January of 2007. But it was redesigned so hastily that their own test preparation classes, given six months before the test, used the old test instead of the new one. And this new test included some sort of, you know, psychological components, you know, designed to measure how people sort of perform in terms of teamwork and things like that. It certainly had a lesser impact on minorities, but I think the test itself is still challengeable.

You know, but in the long run, I think we have to start looking beyond these kind of paper-and-pencil cognitive tests as a means for choosing firefighters. You know, in Bridgeport, they use sort of oral, kind of firing-line examinations to test how people do under pressure. In Minneapolis, they put people through field testing. They teach you a couple firefighting techniques for a few days and then see how you do them in sort of some real world pressure. Those things, I think, are all more likely to find us good firefighters than a paper-and-pencil test.

AMY GOODMAN: What is this going to mean for you now right now, Paul Washington?

PAUL WASHINGTON: Well, right now, we’re just—you know, we’re pretty happy about this outcome, of course. This has been a fight that we’ve been pushing for at least ten years now. We’ve been with the Center for Constitutional Rights for ten years. And, you know, so we’re glad to see this step taken. And, you know, we just want to see a good remedy put in place.

AMY GOODMAN: And what will that be?

PAUL WASHINGTON: There’s no shortage of remedies. They can—there’s things they can do. They can give extra points to people who graduate from a New York City high school, for instance. That’s something that we’ve often pushed. They need to put more money into recruitment efforts. They need to change the test. They need to give a test, as Shayana was just indicating, that not only finds a good—who’s going to really be a good firefighter, but doesn’t eliminate people of color. So there’s no shortages of solutions. There’s never been shortages of solutions. The shortage has been the will of the mayor and the commissioner to come up with a good plan.

JUAN GONZALEZ: And in terms of compensating those people who the court ruled were unfairly treated, how will that work?

SHAYANA KADIDAL: Well, certainly, the court said that there were hundreds of blacks and Latinos who did get hired, but they got hired later than they ordinarily would have been. So, there certainly will be a back-pay component and maybe a retroactive seniority component to the remedy here, as well. But the most important thing is that the judge said that over a thousand qualified blacks and Latinos weren’t hired because of the use of this discriminatory test.

AMY GOODMAN: Shayana, on an unrelated issue—and we just have thirty seconds—in headlines, talking about the Obama administration continuing to deny UN requests to investigate conditions at Guantanamo and other US prisons overseas, the Washington Post reporting a least two human rights investigators were recently turned down, asking to go to Guantanamo. These are the issues that you work on, as well, at CCR. Your comment?

SHAYANA KADIDAL: You know, it’s more of the same. I think at Guantanamo, in general, we really haven’t seen very much departure from the Bush administration practices. It pains me to say that, you know, because we are several months into a new administration that came in with a lot of promise. But in every respect, in their attitude towards the court cases, which they’ve tried to delay, and in their policy decisions about military commissions and indefinite detention, it’s been very disappointing and not much of a departure.

AMY GOODMAN: Well, Shayana Kadidal, we want to thank you for being with us, from the Center for Constitutional Rights. And Paul Washington, former head of the Vulcan Society, the black firefighters’ association, New York, it is great to have you here in our firehouse, serving the community in a different way.



Last modified 

March 18, 2010