United States v. City of New York
FDNY Employment Discrimination Case
Frequently Asked Questions
Please continue to check our website for updated FAQs.
Who are the parties in this case?
The Plaintiff in this case is the United States of America. The Department of Justice, on behalf of the United States, is authorized to bring suit to enforce Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”), against state and local government employers.
The Vulcan Society and seven individual firefighter applicants, Roger Gregg, Marcus Haywood, Candido Nuñez, Jamel Nicholson, Rusebell Wilson, Kevin Walker, and Kevin Simpkins are Plaintiffs-Intervenors in this action. The Vulcan Society is an organization of black firefighters in the Fire Department of the City of New York (“FDNY”). The Vulcan Society and the individual firefighter applicants (referred to here collectively as the “Plaintiffs-Intervenors”) intervened on behalf of themselves and all black applicants for the position of entry-level firefighter who were harmed by the employment practices challenged in this lawsuit.
The Defendant in this case is the City of New York, a local government employer, which maintains a fire department (FDNY) and employs firefighters.
What claims did the United States bring against the City?
In May 2007, the United States filed suit against the City of New York in the United States District Court for the Eastern District of New York (case number 07-cv-2067). The United States alleged that since 1999, the City has discriminated against black and Hispanic applicants for the position of entry-level firefighter in the FDNY. Specifically, the United States challenged the City’s use of Written Exams 7029 and 2043, first administered in 1999 and 2002, respectively, in its hiring process for the position of entry-level firefighter. The United States alleged that the City’s use of these examinations had an unlawful disparate impact on black and Hispanic applicants and did not adequately determine who was or was not qualified for the job of entry-level firefighter.
On July 22, 2009, Judge Nicholas G. Garaufis ruled that the City violated Title VII. The Court found that the City’s use of the written examinations had an unlawful disparate impact on black and Hispanic applicants and could not, as the law requires, be justified as job-related and consistent with business necessity.
What claims did the Plaintiffs-Intervenors bring against the City?
In September 2007, the Court allowed the Plaintiffs-Intervenors to intervene in this case. The Plaintiffs-Intervenors joined the United States’ challenge of the two written examinations based on their disparate impact on black applicants, in addition to raising their own claim that the City intentionally discriminated against black applicants through its use of these examinations.
In January 2010, Judge Garaufis found the City liable for intentional discrimination against black applicants under Title VII, as well as state and local human rights law and the Fourteenth Amendment to the United States Constitution.
What is an “unlawful disparate impact”?
Title VII of the Civil Rights Act of 1964 prohibits not only intentional discrimination, but also employment practices that appear to be fair in form but are discriminatory in operation. A facially neutral employment practice, such as a written examination, that disproportionately excludes individuals from employment opportunities on the basis of their membership in a protected group, such as a particular race or national origin, and cannot be shown to be related to job performance, violates Title VII. As the Equal Employment Opportunity Commission has explained,
[An employer] can be found liable under Title VII if it uses a facially neutral practice that has the effect of disproportionately excluding members of a particular protected group. In such cases, which apply the disparate impact theory of discrimination, the individual alleging discrimination must prove ... that the challenged practice has a substantial and significant adverse effect on a protected group. If the individual can make this demonstration, the employer will be liable for discrimination unless it can show that the practice in question is job-related and consistent with business necessity. It is the employer's burden to make this showing, and a failure to provide any justification for the practice will likely result in a finding of liability. Even if an employer can demonstrate that a practice is justified, moreover, the individual will be given an opportunity to prove that there are other available practices that would also serve the employer's purposes, but with less impact on the protected group.
These facially neutral practices include the use of some written tests by employers, which have, intentionally or not, screened out people of a particular race, national origin or sex who are in fact qualified. Although using written tests to screen applicants may present the appearance of objective, merit-based selection, written tests often do not actually identify applicants who will be successful at performing a particular job. If appropriate analysis finds a test to be a poor assessment of an applicant’s ability to do a job, then the test stands in the way of identifying the best qualified candidates. As a result, it is in everyone’s interest to find a better measure.
In United States v. City of New York, Judge Garaufis found: (1) that the City’s use of two written examinations screened out black and Hispanic applicants at a significantly higher rate than white applicants; and (2) that the City’s use of these examinations did not predict which applicants would be best able to perform the job, which means that the use of these examinations was not job-related and consistent with business necessity. As a result, the Court found the City liable for disparate impact discrimination under Title VII.
Now that the City has been found liable, what happens next?
The Court has directed that the claims process begin so that it can identify which individuals who took the City's unlawful exams are eligible to receive money, a firefighter job, and/or seniority. The deadline to return a claim form was June 18, 2012.
The Court has issued a Relief Order which sets forth the different types of individual relief it will award as well as the criteria for determining whether an individual is eligible for an award. The Court held a fairness hearing on October 1-4, where it considered objections from individuals who might be affected by the proposed Relief Order. The Court overruled those objections when it entered the Final Relief Order.
Individuals that submitted claim forms should receive a letter by November 16, 2012, indicating whether the United States has preliminarily determined that they are eligible for relief. Individuals intending to object to these preliminary eligibility determinations must do so by November 30, 2012.
The Court has also issued an injunctive relief order directing the City to make changes to its discriminatory practices and their effects. Please continue to check this website for updates about the relief phase of the case.
Will the City change the way it selects entry-level firefighters in the future as a result of this lawsuit?
The parties worked jointly under the supervision of the Court to develop Exam 2000, a new selection procedure for entry-level firefighters. The City administered Exam 2000 to applicants for the entry-level firefighter position in March and April 2012. The Court approved the City's proposed use of Exam 2000 on September 28, 2012.
In addition to the development of a new selection procedure, the Court's injunctive relief order requires the City to make additional changes to its selection process. The City must make changes to its recruitment practices and to the process it uses to screen candidates who pass the entry-level firefighter examination. A Court Monitor is overseeing the City's compliance with the order.
What kinds of individual relief may be available to remedy the City’s discrimination?
The Court will award money, firefighter jobs, and seniority to individuals who were harmed by the City's discriminatory practices. You may refer to the Court's Final Relief Order for more details about the individual relief available. Check this website for updates about the relief phase of the case.
Who may be able to receive individual relief?
The Court will determine whether or not an individual who applies for relief was subjected to the City’s discriminatory practices, and thus, able to receive relief. Individuals eligible for relief may include black and Hispanic applicants who took entry-level firefighter Exam 7029 (first administered in 1999), Exam 2043 (first administered in 2002), or both. This includes individuals who the City hired as entry-level firefighters (if their hiring was delayed due to the City’s discriminatory practices), as well as those the City did not hire as entry-level firefighters.
If I took Exam 6019 (first administered in 2006), am I able to receive individual relief in this lawsuit?
No. Individuals who did not take either Exam 7029 or Exam 2043 between 1999 and 2006 are not eligible to receive individual relief in this lawsuit. If you feel you were discriminated against because of your race or national origin as a result of taking one of the City's written examinations for entry-level firefighter, you should consult with an attorney (at your own expense) to determine your legal options or you can file a charge of discrimination with the Equal Employment Opportunity Commission. The Department of Justice and the Plaintiffs-Intervenors have not filed suit against the City with respect to any entry-level firefighter exams other than Written Exams 7029 and 2043.
Will my information be kept confidential?
All information submitted through this website will be maintained and utilized in accordance with applicable federal law, including the Privacy Act of 1974, 5 U.S.C. § 552a, et seq. To the extent any information submitted is protected by the Privacy Act, that information would not be used or disclosed except as permitted under the Privacy Act. The United States will not file your social security number in any public document.
What if I have additional questions?
Call the Department of Justice at 1-800-556-1950, select mailbox option number 7, and leave a message.
If you have questions regarding the Plaintiffs-Intervenors’ claims, call the Plaintiffs-Intervenors at 212-627-8100.
Please do not contact the court for information about this case. Court personnel will not be able to answer any questions about your eligibility for relief or the process of obtaining relief.