Chief Leader – May 12, 2015
by SARAH DORSEY
As part of an effort to “make whole” firefighter candidates subjected to discrimination in hiring, U.S. District Judge Nicholas Garaufis has ordered the city to pay the interest that would have accrued on the pension contributions of some black and Latino firefighters had they been hired earlier.
The order comes as part of the U.S. Justice Department and Vulcan Society of Black Firefighters’ hiring-discrimination lawsuit against the FDNY, which Mayor de Blasio settled a year ago for $98 million in back pay and benefits to minority firefighter candidates.
Limits Their Burden
The Judge’s finding rested on the concept, established in previous case law, that Title VII of the Civil Rights Act requires that victims of employment discrimination be “made whole.”
“The principle behind ‘make whole’ relief is that the court should unwind events and place the victims of unlawful discrimination, if at all possible, in the situation (financial and otherwise) that they would have occupied at present if the discrimination had never occurred,” he wrote.
In the Justice Department case, Judge Garaufis found that hundreds of black and Latino firefighters would have been hired earlier—or were never hired at all—due to entrance exams and hiring practices that favored whites.
If they had been hired earlier, their minimum contributions required as members of the pension system would have gained 8.25-percent interest annually, the Judge wrote—money pensioners would normally have to pay to “buy back” past service credit. “The city’s discrimination is the cause of the delay in the contributions…not any actions by claimants,” he said.
City: ‘Saddles Taxpayers’
City attorneys argued in a memorandum to the court that paying the interest would “saddle New York City taxpayers with an unjustified financial burden, and would increase the settlement amount in this case beyond what the parties negotiated.” The payments would provide a “substantial benefit” to the firefighter candidates and “goes well beyond make-whole relief,” they said.
Judge Garaufis rejected that argument and another of the city’s claims that local administrative code governs matters of interest on pension payments. He called that an incorrect interpretation of city law and said that even if it were true, Federal civil-rights law would supersede the city statute in this case.
Spokespeople for the Mayor did not respond to a request for an estimate of how much the payments might cost.
Law Dept.: We’ll Comply
But Law Department Labor and Employment Division Chief Eric Eichenholtz said in an e-mailed statement, “We appreciate the Judge clarifying this aspect of the settlement, and the city will comply with the ruling.”
The interest payments will be determined based on two estimated hire dates for test-takers who sat for one of two firefighter exams thrown out by the Judge. Mr. Garaufis tossed the results of the 1999, 2002 and 2007 exams as resulting in a disproportionate number of white hires, but made relief available only for those who took one of the first two tests.
Those who took the 1999 exam will receive back-interest payments based on a hire date of Feb. 2, 2003; takers of the 2002 test will receive payments as if they were hired on June 11, 2006. Those were the median dates by which candidates were hired for each exam, a spokeswoman for the court said.
Though up to 293 recruits were potentially eligible to become priority hires, it’s looking like only about half of them will join the force. The back-interest payments will be available to those candidates, and will vary greatly by person depending on when they were eventually hired.
It’s expected that black and Latino candidates will begin to receive their checks from the city’s $98-million settlement for back pay and other relief in August.
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