Tuesday, October 11, 2011

The Buck Stops Where?

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 My colleague, Bahar Azmy, on leave from Seton Hall to the Center for Constitutional Rights, recently forwarded two orders from Judge Garafuis of the SDNY in the CCR's Vulcan Society litigation challenging the dismal record of the NYFD in hiring and advancing minority firefighters.  One was a Memorandum explaining the second, a Draft Remedial Order. The court had earlier found the Department liable for both disparate impact and disparate treatment discrimination.  The Memorandum and Remedial Order reflected the court's effort to redress those violations.

They are worth reading. The Memorandum reflects a judge who has finally run out of patience with New York City's latest response to litigation that traces back at least to the early 1970s. Mayor Bloomberg comes in for especially heavy criticism for not taking any responsibility for the continuing state of affairs during his tenure. But he's not the only one. A sampling:

  • the FDNY's EEO Office is "little more than a bureaucratic Potemkin village"
  • Mayor Bloomberg was "satisfied" with FDNY compliance efforts, despite multiple individuals and agencies, including the City's own FEP, raising problems
  • "Today, four years of litigation and two adverse liability rulings later-- the City still doesn't get it." 
  • "The blame-shifting and accountability-avoidance that goes on at the highest levels of the City's leadership was on full display at the remedial-phase bench trial."
  • "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 the equal employment opportunity laws are followed."

The Draft Remedial Order is perhaps less dramatic than this prelude might suggest. There are no hiring quotas imposed. Indeed, the judge described it as "simply compel[ling] the City to take a hard look at its policies and practices...." It does enjoin the practices found illegal, basically prior tests, and envisions a new entry-level test being developed in consultation with Special Master Mary Jo White. But taking the judge at his word about continued recalcitrance, one wonders why the past will not be prologue to the future for this employer. 

CAS

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