Fire Department Allowed To Transfer Employees Because Of Their Race

In 1980, the federal government obtained a consent decree against the City of Newark, New Jersey. The Decree generally prohibited the City’s Fire Department from unlawfully discriminating against any African-American or Hispanic employee. In the Decree, the City “acknowledged a goal to fill at least 60 percent of all vacancies for entry-level firefighters with qualified minority applicants.”

In 1995, the City commissioned two reports to examine the performance of the Fire Department in the 15 years of operation under the Decree. One of the reports concluded: “There are numerous firehouses in the City that are segregated by race.” The other of the reports focused on the Department’s “tours,” and concluded: “The information the Department provided to us described 108 tours. Eighty-one of the tours had a majority of white personnel, with 30 being comprised entirely of white personnel. Fifteen of the firehouse tours were predominantly black. Only one tour had a majority of Hispanics. The remaining 11 tours did not contain a majority of any one group.”

Seven years after receiving these reports, the City implemented race-based transfers between fire stations. This decision resulted in firefighters of all races being involuntarily transferred to new stations, with the sole justification for the transfers being their race.

A group of transferred firefighters and the unions representing rank-and-file and management firefighters challenged the transfers by filing a federal court lawsuit alleging that the transfers violated the firefighters’ rights to equal protection of the laws. A federal court rejected the lawsuit and upheld the transfers.

The Court’s approach to the case was signaled in the opening paragraph of its opinion: “The Court is tempted to view this matter in its simplest terms: Reasonable action by a municipality, operating under a consent decree, to desegregate its fire companies, much as it would its schools, because ‘separate but equal’ is not a viable rationale to justify segregation in either setting. It is equally tempting to conclude that because assignments and reassignments to tours are the City’s management prerogative (in which the plaintiff Unions have no role and which the affected firefighters and officers may not grieve under their collective bargaining agreements), the present transfer plan to desegregate Newark’s firehouses is a legitimate, unassailable exercise of that prerogative.”

However, the Court acknowledged that federal law required it to at least inquire as to whether race-based transfers violated the equal protection rights of those transferred. The Court examined the transfers, and concluded that the City had a “compelling interest” in using race as the criterion for the transfers.
The Court couched its decision on the assumption that the system of voluntary selection of tours and stations resulted in unlawful discrimination: “Prior to the implementation of the present diversity policy, de facto segregation existed in a significant number of tours in Newark’s firehouses. Thus, the assignment of personnel through the random system previously in place had the effect of unlawfully discriminating against a black or Hispanic employee assigned to an all-black or all-Hispanic tour. Since separate but equal circumstances such as these have been declared per se discriminatory for more than 50 years, Newark had a compelling interest to institute an assignment policy that would desegregate its tours. In brief, Newark instituted the transfer policy to implement the Consent Decree by desegregating its firehouses, a compelling interest if ever there was one, and it succeeded.”

The Court also ruled that “there is credible evidence in the record that exposure to other firefighters of different backgrounds, vocabularies and cultures better prepares a firefighter to work effectively with his colleagues and to perform better on tests for promotional opportunities. Mentoring from senior firefighters on a tour (usually white) helps junior (often minority) firefighters better learn and perform their tasks. Much of a firefighter’s time is spent at the firehouse in a setting of formal and informal training, which is enhanced by a diverse, multi-generational environment. Racial stereotypes can be broken down in this setting as well as in a classroom.”

Lomack v. City of Newark, 2005 WL 2077479 (D.N.J. 2005).

NOTE: For several reasons, the Court’s decision in the Newark case is an unusual one. First, the system of assignment to firehouses and tours had never been challenged as racially discriminatory by any firefighter of any race.

Second, though the Court found that the City’s transfer policy was an implementation of the 25-year-old Consent Decree, the Court itself acknowledged that the substantive provisions of the Consent Decree dealt solely with hiring, and had no provisions dealing with assignments.
Third, the Court did not even acknowledge, much less reconcile, a recent federal court decision striking down the race-based transfer of African-American New York City police officers in the wake of the Louima assault. Patrolmen’s Benevolent Association of the City of New York v. City of New York, 310 F.3d 43 (2nd Cir. 2002).

This article appears in the October 2005 issue