Fordham Law


Judge's sharp rebuke on FDNY bias contrasts with ruling

Tanya Hernandez in Reuters, October 07, 2011

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NEW YORK, Oct 7 (Reuters) - A federal judge in Brooklyn has drawn attention after taking an unusually harsh tone with New York City's leadership, which he excoriated for failing to remedy discriminatory hiring practices in the city's fire department over nearly four decades. But civil-rights attorneys said the tough talk belies the judge's proposed solution, which gives the city the chance to write its own blueprint for addressing the problems.

In a pair of strongly worded opinions handed down over the last week, U.S. District Judge Nicholas Garaufis slammed everyone from fire department brass to Mayor Michael Bloomberg for failing to take seriously the problem of making sure the New York City Fire Department was racially diverse, blaming them for allowing the department to become a "stubborn bastion of white male privilege."

"If this litigation has proven anything, it is that it is folly to expect any official of the city of New York to accept accountability for seeing that the equal employment opportunity laws are followed," Garaufis wrote.

"That this discrimination has been allowed to persist in New York City for so long is a shameful blight on the records of the six mayors of this city who failed to take responsibility for doing what was necessary to end it," he added.

"This is not the tempered language that one usually sees from a court," said Suzanne Goldberg, a professor of civil-rights law at Columbia Law School. "In that sense, this is a very sharp rebuke."

CITY 'STRONGLY DISAGREES'

Garaufis' rebuke did not go unnoticed by Bloomberg, who stood by the administration's efforts to diversify the fire department during an unrelated press conference on Wednesday.

"I think it's fair to say no previous administration has done more or been as successful in attracting diversity to the FDNY than we have, and I couldn't feel more strongly about it," Bloomberg said.

Attorneys for the city referred to previous comments made Wednesday in which Corporation Counsel Michael Cardozo said the city "strongly disagree[s]" with the ruling and opinion and intends to appeal as soon as possible.

Garaufis issued the rulings in response to a 2007 lawsuit filed against the city by the U.S. Department of Justice.

According to statistics presented by the plaintiffs, which include a fraternal organization for black firefighters, blacks and Hispanics comprise 3.4 percent and 6.7 percent, respectively, of the city's firefighter ranks as of 2007, even though they make up 25 and 27 percent of New York City's population.

Garaufis's ruling was particularly remarkable for its "frank language about public issues of race," said Tanya Hernandez, a professor of law at Fordham University who specializes in employment discrimination and civil-rights law. Hernandez compared it to the U.S. Supreme Court's rejection of bans on interracial marriage in the 1967 case Loving v. Virginia.

"Loving v. Virginia has always stood out to me for this amazing language speaking honestly and forthrightly on matters of race," Hernandez said. "I was struck by the parallels here -- how some view it as inflammatory, and others view it as a long time coming."

'NO FAVORITISM HERE'

But despite Garaufis's forceful tone, his proposed solution is actually "extremely conservative," said civil-rights attorney Richard Emery.

"If anything, he seems to give the city the benefit of the doubt," Emery said, by proposing an independent monitor to oversee the city's efforts to correct practices throughout its hiring and recruitment processes that have put black and Hispanic candidates at a disadvantage.

Observers said that Garaufis could have gone as far as superimposing quotas or setting his own hiring and recruitment goals for the city. Instead, he left the mandate for change relatively open-ended, with the city responsible for writing its own game plan in consultation with experts.

"There's no favoritism here," Emery said. "I think he's plenty sympathetic to the problem. But nonetheless, I think he thinks that they can and should do more."

By taking an initially confrontational tone and then laying out a broad 10-year time frame for the city to devise and implement its own solution to the problem -- in consultation with outside experts and its own officials -- Garaufis is attempting to prod the city into changing its mind-set and taking the problem as seriously as the court does, Hernandez said.

"The judge is trying to set up a framework for the fire department to invest in and take ownership of their own reforms," Hernandez said, adding that the approach may not be as discrepant as it appears.

"It might look pretty tame in comparison to the language he uses in the opinion, but if we step back for a moment, the remedy is actually one that looks like it could have great potential for long-standing effect."

The case is U.S. v. City of New York, in the U.S. District Court for the Eastern District of New York, no. 07-2067.

(Reporting by Jessica Dye)