ANOTHER REVERSE DISCRIMINATION FIREFIGHTER CASE

by Art Gutman Ph.D., Professor, Florida Institute of Technology

This one is Vivenzio v. City of Syracuse (2010 U.S. App. LEXIS 13464) decided by the 2nd Circuit on July 1, 2010. Neither side has won --- yet. Three white firefighters sued the City of Syracuse via Title VII, the 14th Amendment and New York State law because black applicants with lower test scores were selected ahead of them. The basis for selecting the lower scoring blacks was a consent decree fashioned in 1980 to settle two race discrimination claims pending at that time. The decree specified that the city would “on an interim basis” hire blacks who “successfully passed the applicable examinations” for 25% of all entry-level firefighter jobs until the percentage of black firefighters approximated the percentage of available blacks in the city’s labor pool. The issue here is was whether this goal has been satisfied.

District Court Judge Hurd granted summary judgment to the city on grounds that (1) the consent decree was never dissolved and (2) assuming even that the dissolve automatically, the goals were not met because the percentage of black firefighters was 16% in comparison to an adult black population in Syracuse of 25% (see 545 F. Supp. 2d 241). Circuit Court Judge Kearse agreed that the consent decree was a “legitimate nondiscriminatory reason” for preferring the black applicants, but that neither side presented relevant labor pool statistics from which to compare the percentage of black firefighters. The lower court ruling was therefore vacated and remanded.

However this case works out, it’s important to realize that the consent decree was nearly 28 years old at the time the case was initially tried. There must be many more like this one in various municipalities throughout the country.

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