Update: Legal Action in 4 Cities

This month's column provides updates on legal matters involving firefighters and fire departments in four cities. Three cases involve allegations of discrimination and one centers on a labor agreement reached after more than four years of negotiations.

Judge appoints overseer for FDNY hiring. A federal judge has appointed Mary Jo White, a former U.S. attorney for Manhattan, to oversee New York City's efforts to increase the number of minority firefighters employed by the FDNY. This is the latest in a long-running and bitter dispute between the city and minority groups over hiring practices. The issue stems from FDNY's use of an entry-level exam in 1999 and 2002 that was ruled to have a discriminatory effect on minority applicants. Minorities have been persistently underrepresented in the department. In 2007, only 3.4% of New York City firefighters were black, while more than 25% of the city's population was black.

U.S. District Court Judge Nicholas Garaufis, who heard the lawsuit, ruled in January that the city had intentionally discriminated against the black and Hispanic firefighters by continuing to use an exam that it knew had a discriminatory effect. A finding of intentional discrimination such as this is rare. Most cases like this simply result in a finding that the practice in question had a discriminatory effect, but was not necessarily intentional.

Following his ruling, Garaufis had several options for imposing sanctions on the city. For example, he might have imposed strict hiring quotas on the city. However, he decided to appoint a "special master" to put into place a new non-discriminatory exam, to oversee the city's efforts to address past discrimination and the city's responses to the court's orders. He also ordered the city to pay damages to approximately 7,400 minority applicants and hire a small number of them.

Recently retired Manhattan District Attorney Robert Morgenthau was Garaufis' first choice to serve in the position. However, Morgenthau resigned less than a week later in the face of strong opposition from the city. He and Mayor Michael Bloomberg had been involved in several highly publicized disputes during his tenure as district attorney.

Although a court-appointed overseer is now in place to resolve the dispute, it is by no means over. The city may appeal the court's underlying decision of intentional discrimination, and it is easy to imagine further disagreements over the implementation of new hiring practices in what has become a very nasty legal dispute. Stay tuned.

Court awards damages in DC Fire Department religious discrimination case. A federal judge has found that the Washington, DC, fire department must pay damages for missed promotions and overtime pay to a group of firefighters who had refused to shave their beards for religious reasons. Their beards violated the department's ban on facial hair for emergency responders.

The firefighters filed suit in 2001, after they were removed from duty, claiming that their rights had been violated under the Religious Freedom Restoration Act (RFRA). A federal appeals court ruled in favor of the firefighters and ordered the city to let them go back to work.

The firefighters then requested that they be awarded compensation to make up for their lost wages and for the emotional distress they had suffered. The court granted their request in part and denied it in part, by refusing to award the emotional distress damages. It said, in part, "Plaintiffs are on shakier ground, however, when they argue that compensatory damages for non-economic loss are available under RFRA. Establishing claims for emotional distress . . . would inevitably lead to . . . disputes about the sincerity and importance of religious beliefs — something I would expect plaintiffs' counsel vigilantly to guard against."

Rather than award a specific sum of money, the judge directed the parties to meet and resolve questions of exactly what kinds of relief should be given.

Philadelphia, PA, Fire Department harassment settlement. For 40 years or more, the Philadelphia Fire Department has suffered from racial tensions. There have been frequent lawsuits regarding discrimination in hiring and promotions as well as complaints of harassment. However, the latest legal action has been resolved amicably.

A group of black firefighters filed a lawsuit in federal court last November, claiming harassment by racist Internet postings that were made by white firefighters. Allegedly, fire department computers were used to post the comments and they were done while the perpetrators were on duty. Club Valiants, the organization of black Philadelphia firefighters that filed the lawsuit, claimed that the offensive comments were posted on the website of International Association of Fire Fighters (IAFF) Local 22 and in other places. Club Valiants has long claimed that Local 22 is anti-minority and hostile to African American firefighters.

U.S. District Court Judge Cynthia Rufe dismissed the complaint at the request of Club Valiants after the group reached an agreement with the city to resolve the concerns. The city agreed to provide additional diversity training to firefighters with input from Club Valiants and the NAACP. Further, the city will re-post its policy against using any city computer for discriminatory purposes and pay $15,000 in legal fees.

Boston, MA, Fire Department reaches labor agreement. After more than four years of acrimonious negotiations, Boston firefighters overwhelmingly ratified a new labor contract with the city on June 22. The agreement came only after an arbitrator's decision served as the basis for a deal that the City Council could approve.

The final deal gives firefighters 17.5% in pay raises over five years. It also pays firefighters a 1.5% bonus in exchange for submitting to drug testing, although that raise does not take effect until June 30, 2011. The other raises are retroactive to 2006, when the last contract expired, meaning that firefighters will receive a check averaging $29,000 in the next few months. According to the latest Firehouse® Magazine National Run Survey, Boston firefighters' present salary ranges from $42,000 to $64,000. They work 42 hours per week.

After years of ultimately unsuccessful negotiations, IAFF Local 718 and the department entered into binding arbitration. Earlier this year, a state arbitrator ruled that firefighters should be granted a contract worth $74 million in raises. However, the City Council was not a party to the arbitration proceedings and thus was not required to provide funds to implement the ruling. Initially, it was evenly divided on whether to approve the funds for the contract. After three-way negotiations involving the City Council, the union and the mayor's office, all agreed to the final compromise, which includes cost savings from the original award.

STEVE BLACKISTONE, a Firehouse® contributing editor, is a Maryland attorney who directs state and local liaison activities for an agency of the federal government. Prior to his current position, he served in a variety of posts on the staff of the U.S. House of Representatives, working both on the personal staffs of members of Congress and on congressional committees. Blackistone also is a volunteer EMT/firefighter with the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.