Residency Requirement Violates Title VII

The North Hudson Regional Fire and Rescue (NHRFR) is a consolidated municipal fire department and political subdivision of the State of New Jersey that serves several communities in North Hudson County. In New Jersey, civil service positions such as firefighter are subject to the examination process administered by the New Jersey Department of Personnel. In order to take the examination, a candidate must also live in one of the five municipalities that makes up the NHRFR.

As of July 2008, the NHRFR had 323 full-time employees. Of those employees, two were African-American, 64 were Hispanic, 255 were white and two identified as other races. The National Association for the Advancement of Colored People (NAACP) sued the NHRFR, claiming that the residency requirement amounted to race discrimination that violated Title VII of the Civil Rights Act.

A federal trial court sided with the NAACP. The Court started with the proposition that Title VII prohibits both intentional discrimination and “disparate impact” discrimination, that is “employment practices adopted without a deliberately discriminatory motive, which may in operation be functionally equivalent to intentional discrimination.” The prohibitions under Title VII extend to practices that have a discriminatory impact, regardless of the employer’s intent in implementing or carrying out those practices, unless the employer shows that the practice is required by business necessity.

The Court cited the testimony of a statistical expert that, based upon the percentage of African-Americans living in Hudson County, one would expect there to be 39, not two, African-Americans employed by the NHRFR. The expert described this result as being “six standard deviations from the mean,” or a “probability of a chance occurrence as ‘almost zero.’” The Court found that this testimony established a prima facie case of disparate impact discrimination.

The Court then turned to NHRFR’s “business necessity” defenses. The NHRFR asserted that the residency requirement was justified by business necessity because it (1) increased the likelihood that firefighters in the NHRFR will live in the area, which means they will be more familiar with the buildings and the streets, and also that they would be able to respond more quickly in the case of an emergency; (2) increased the number of Spanish-speaking NHRFR employees, which is helpful since the communities the NHRFR serves are 69.6 percent Hispanic; and (3) fostered pride in the community.

The Court found none of these justifications sufficient. As to the NHRFR’s first argument, the Court cited testimony that firefighters quickly learned the geography of the five municipalities served by the NHRFR, and that any benefits brought by pre-hire familiarity with the area were minimal. As to the “swift response time” contention, the Court observed that “the NHRFR has not produced any evidence demonstrating how often – if ever – off-duty firefighters are required to respond to an emergency. It is the employer’s burden to establish that a given requirement is necessary to the performance of an employee’s duties.” The Court also cited the fact that “the residency requirement is based only upon an applicant’s residence at the time he or she takes the exam so NHRFR employees are free to live wherever they choose,” and only 34% of NHRFR employees actually live in one of the five municipalities.

The Court then rejected NHRFR’s argument that the residency requirement increased the number of Hispanic firefighters who may speak Spanish, which in turn promotes communication with the community the NHRFR serves. The Court noted: “The NHRFR has not presented the Court with any information about its language requirements beyond citing the statistic that the population of the member municipalities is 69.6 percent Hispanic. The fact that a person is of Hispanic descent does not necessarily mean that he or she speaks Spanish. Therefore, the fact that a large segment of the population is Hispanic does not shed any light on the question of how many residents of the member municipalities do not speak English. NHRFR has not provided the Court with any evidence of how many of their Hispanic firefighters speak Spanish, nor have they attempted to inform the Court of the percentage of people in their community that might require translators.”

By way of remedy, the Court entered a permanent injunction barring the NHRFR from hiring candidates from its current list and from commencing hiring until it obtains a list that expands the residency requirement to include residents of Hudson, Essex, and Union counties.

Nat. Ass’n for the Advancement of Colored People v. North Hudson Regional Fire & Rescue, 2010 WL 3719067 (D. N.J. 2010).

This article appears in the November 2010 issue