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.


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...


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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.

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