De Blasio's $100 million handout in disparate impact FDNY case

From the New York Post:

De Blasio agrees to $98M FDNY discrimination suit settlement 

By Selim Algar, Philip Messing, Beth DeFalco and Bob Fredericks 

Abandoning a legal battle hard-fought by his predecessor, Mayor de Blasio on Tuesday agreed to have the city shell out more than $100 million to a group of 1,500 minority firefighter applicants who sued over FDNY entrance exams that were found to be biased. 

De Blasio made no secret of his desire to settle the controversial case upon taking office in January and the Vulcan Society and its lawyers took full advantage, scoring $98 million out of a $128 million cap on the city’s financial exposure.
The generous settlement amount doesn’t include at least $3.7 million more the city will be on the hook for in fees to the plaintiffs’ lawyers. 

“I think it was pretty clear that they were going to get what they wanted with de Blasio — or something close to it,” said an FDNY union source. “There was no way this was going to make it to court. The only question was the amount and we got that answer today.” 

... If evenly distributed the payout would be about $65,000 for each member of the class action. 

Here's an interesting subject for a social science study: I've joked in the past that suing for discrimination could be called AARP: "African-American Retirement Planning." But somebody really ought to do a study of this question since blacks tend to do a bad job at saving for their retirement, and discrimination payouts are highly publicized in the black community by lawyers and politicians. It would be worth knowing what percentage of blacks expect to win a discrimination settlement at some point in their lives, and for how much. And then compare these expectations to the realities, which I suspect are more paltry.

In a related maneuver that reveals the extent of City Hall’s new orientation, city Corporation Counsel Zachary Carter was granted permission to have controversial Judge Nicholas Garaufis administer the plump payout and determine the lawyer fees. 

Garaufis presided over the case, ruling in 2011 that the FDNY — and then-Mayor Mike Bloomberg, specifically — intentionally discriminated against minority applicants. 

But an appeals court tossed the portion of his ruling that characterized the discrimination as intentional and assigned a new judge, citing Garaufis’ lack of impartiality. That key legal point directly impacted financial damages and the reputation of the FDNY. A new hearing with a different judge had been scheduled for later this month but was scuttled with the settlement deal. 

De Blasio, who has pushed a tax-the-rich plan to pay for pre-K, gushed after agreeing to the whopping hit to taxpayers. 

“The brave men and women of the FDNY work tirelessly to keep us safe from harm’s way, and our administration is committed to ensuring every New Yorker who seeks to take on this heroic role has a fair opportunity to join the ranks,” he said in a statement. 

Asked later whether he weakened the city’s ability to negotiate a fiscally responsible settlement, the mayor dodged the issue, saying: “I think the numbers [on hiring] speak for themselves. We strive for a government that really looks like New York City,” he said. “ And that just hasn’t been true at the fire department. So we need to move forward. I think the settlement is part of how we move forward.” 

Vulcan Society attorneys were awarded $3.7 million in fees by Garaufis but are in the process of seeking additional payment.

Here's a 2009 New York Times article explaining why the test was so horribly biased:

Racial Bias in Fire Exams Can Lurk in the Details

By DIANE CARDWELL 

Published: July 23, 2009 

When a Federal District Court judge in Brooklyn ruled Wednesday that New York City had discriminated against black and Hispanic applicants to the Fire Department, he argued that two entrance exams, used in 1999 and 2002, adversely affected minorities and had little relation to firefighting.

On the surface, the tests — versions of which remained in use until 2007, according to the court — do not appear racially biased. Each exam consists of 85 multiple-choice questions about firefighting practices: the order in which a firefighter should don gear in an alarm; what the rear of a building would look like, based on its facade; the right situations in which to say “mayday” rather than “urgent” over the walkie-talkie. 

But a closer look shows that the exams also required applicants to read and understand long passages, often containing technical terms, and then answer questions about them. One question, for instance, follows a 250-word description of the use and maintenance of portable power saws and asks which type of blade must be put out of service. 

The choices: A) A carbide tip blade missing nine tips; B) a carbide tip blade with three broken tips; C) an aluminum oxide blade measuring 12 inches; D) a yellow silicon carbide blade measuring nine inches. (The correct answer is A). 

Here's the old, evil test. Here's the opening of the reading passage about how to pick the right chainsaw to use so that you can rescue people from fiery deaths without ripping your face off because it bucks:

One tool used by firefighters to fight fires is the portable power saw. The power saw improves operational efficiency by aiding firefighters with cutting operations at fires and other emergencies. The portable power saw comes equipped with three cutting blades. Carbide tip blades are used when cutting through tar-covered roofs, wood flooring and similar materials. Carbide tip blades must not be used on steel objects, such as metal security doors, auto bodies, and metal window bars, since the tips of the blade may come loose and cause an injury to the firefighter using the saw or bystanders. Aluminum oxide blades are used to cut through various types of steel, such as metal security doors, auto bodies, and metal window bars. Silicon carbide blades are used to cut concrete and other masonry materials.

The first question was:

Q. Which type of blade must a firefighter use with a portable power saw to cut a metal security door? 

A. A carbide tip blade
B. A silicon carbide blade
C. An aluminum oxide blade
D. A carbide tip or aluminum oxide blade 

The NYT continued in 2009:

In big cities across the country, firefighter entrance exams have tended to favor applicants already steeped in the ways of the job, like “people whose dads and uncles are firefighters,” said Richard Primus, a professor of constitutional law at the University of Michigan. That, he said, has perpetuated the disproportionate representation of whites in those firefighting forces. 

Besides, Professor Primus added, some of that knowledge is not needed to become a good firefighter. “Much of what appears on written exams for firefighters is legitimately material that we should want firefighters to know,” he said, but some of it tends to be knowledge that “firefighting junkies have, even though it is not really necessary for fighting fires.” 

At issue in the New York case, legal experts said, was not so much whether the exams themselves were biased. Rather, the law requires that if a test has the effect of disproportionately excluding minorities, then the skills it measures must be necessary to the job — a standard that the judge, Nicholas G. Garaufis, found the city did not meet. 

Ruling in a lawsuit brought by the Justice Department in 2007, Judge Garaufis wrote that in creating the test, the city convened a panel of firefighters who identified 21 “task clusters” to be tested, like evaluating a fire scene or searching for victims, and 18 “abilities,” like memorization, deductive reasoning and spatial orientation.

In reality, the test could be passed one of two ways: being smart enough to comprehend technical firefighting passages or by studying firefighting techniques ahead of time.

But, that's discriminatory to the tune of a hundred million clams.