For Affirmative Action Purposes, ‘Labor Force’ Has Different Meaning Than ‘Population’

Thirty years ago, the City of Syracuse, New York entered into a consent decree to increase the number of African-Americans in the Syracuse Fire Department. The Consent Decree required the City to “use its good faith efforts to achieve the long-term goal to utilize blacks in all ranks within the Department in numbers approximating their representation within the labor force which is available for employment in the City of Syracuse.”

Under the Consent Decree, the City in the 1980s hired 144 new firefighters, of whom 28.5 percent were African-American. In that decade, the approximate percentage of African-Americans hired ranged from 7.7 percent (in 1984) to 47.1 percent (in 1981). In the 1990s, the City hired 106 new firefighters, of whom 14.2 percent were African-American. The percentage of African-Americans hired in the 1990s ranged from 0 percent to 25 percent. In 2000, 2001, and 2002, the City hired a total of 55 new firefighters, of whom 25.45 percent were African-American. By April 2004, approximately 16.58 percent of the City’s firefighters were African-American.

In 2002, David Vivenzio and Scott Wilkinson took the City’s civil service examination for entry-level firefighter positions, and each scored 95. In April 2004, the City hired 24 firefighters; ten were African-Americans, nine of whom were selected from a “black list”; one of the nine had a score of 85. Vivenzio and Wilkinson were not hired; their scores on the civil service examination were higher than the scores of three candidates hired from the “black list.” In 2005, the City hired a total of 25 firefighters, six of whom were selected from the “black list.” Vivenzio and Wilkinson were not hired; their civil service test scores were higher than those of at least five candidates hired from the “black list.”

Vivenzio and Wilkinson sued the City, alleging that they were the victims of race discrimination that violated the Fourteenth Amendment to the United States Constitution. The City responded that it was allowed to use the dual list system in order to meet the requirements of the Consent Decree.

The federal Second Circuit Court of Appeals found the City’s arguments faulty. As the Court reasoned, “the City had both the burden of production with respect to its contention that its employment decision was based on a legitimate nondiscriminatory reason. Given the long-term goal stated in the Consent Decree of having African-American employees in the Department ‘approximate African-Americans’ representation within the [City’s] labor force,’ the racial makeup of the City’s labor pool is a material ingredient in the issue of whether the City’s hiring practices could be justified by its reliance on the Consent Decree. Yet the City did not adduce any evidence as to the percentage of African-Americans in its labor pool. Indeed, the City’s Mayor and the Fire Chief seemed unaware that the labor pool was the Consent Decree’s stated frame of reference. The City having made no showing as to the racial makeup of its labor force at the time of the hiring decisions challenged here, its claim of reliance on the Consent Decree was entirely inadequate to show a legitimate nondiscriminatory reason for the challenged hiring decisions.”

The Court also found incorrect the City’s reliance “on the percentage of African-Americans in the City’s overall population, 25.3 percent, as an indication that having African-Americans as 16.58 percent of the Department’s workforce meant that the long-term goals of the Consent Decree had not been met. There is no evidence in the record that all African-Americans in the City’s overall population are members of the labor force, and such a suggestion seems unrealistic. In fact, a 2002 letter in which the Fire Chief advised the Mayor explicitly, ‘We have met and exceeded the goals of the consent decree in every way,’ constitutes evidence from which a rational factfinder could infer that the City was not entitled to rely on the Consent Decree in declining to hire Vivenzio and Wilkinson in 2004 and 2005.”

The Court remanded the case to the trial court for consideration of the racial makeup of the City’s labor force. The Court specifically declined to rule on “the viability of the 1980 Consent Decree” until after all the evidence had been received.

Vivenzio v. City of Syracuse, 2010 WL 2629500 (2d Cir. 2010).

This article appears in the September 2010 issue