A major decision in the FDNY race discrimination hiring case was delivered yesterday, January 13, 2010, and it’s impact is only now starting to sink in. In a 70 page ruling, Judge Nicholas G. Garaufis lambasted FDNY for ignoring statistical imbalance numbers for years, and continuing to use hiring policies and procedures that resulted in a workforce that was approximately 93% white male.

The lawsuit, filed in May, 2007, challenged two examinations administered in February, 1999 and December, 2002, as part of the hiring process. In July, 2009, Judge Garaufis ruled that the examinations were discriminatory under the disparate impact theory. The ruling yesterday was important because FDNY was also being accused of deliberate, purposeful discrimination. There are two basic types of discrimination, disparate treatment and disparate impact.

Disparate treatment is the most easily understood type of discrimination, but often the hardest to prove. It occurs when someone acts intentionally and deliberately to discriminate. For example, an employer who refuses to accept an application from a black applicant, or who purposefully destroys an application once filed, would be guilty of disparate treatment. Usually, disparate treatment cases are few and far between these days.

Disparate impact occurs when despite the fact that there is no clear evidence of intent to discriminate, a statistical imbalance exists that is evidence that some neutral appearing factor must be causing the imbalance, and thereby results in unlawful discrimination. The July, 2009 ruling determined that the 1999 and 2002 examinations had a discriminatory impact. The ruling yesterday was nothing short of historic in so far as it concluded that the continued use of such tests despite a longstanding knowledge that they had a disparate impact, constituted disparate treatment. In other words, the judge ruled that FDNY purposefully discriminated against minorities.

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