Court Upholds Buffalo Fire Lieutenant Exam

NEW YORK &#8211 The city of Buffalo, New York, did not discriminate against African-Americans with the test it used to promote firefighters, a federal appeals court has ruled.

Although black firefighters generally had a lower pass rate than their white counterparts, Buffalo demonstrated that the test assessed the necessary skills for the job of fire lieutenant, the 2nd U.S. Circuit Court of Appeals found in a 2-1 decision.

“(W)e conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo’s use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity,” U.S. Circuit Court Judge Reena Raggi wrote for the majority, which also included Judge John Walker.

The appeal consolidated two lawsuits filed by Men Of Color Helping All Society Inc, or MOCHA, a fraternal organization representing African-American firefighters in Buffalo. The lawsuits alleged that the city violated Title VII of the Civil Rights Act by administering promotional tests in 1998 and 2002 that were racially discriminatory.

MOCHA said that African-Americans passed the test at lower rates than their white counterparts — 43 percent compared to 76 percent. As a result, African-Americans were underrepresented in the Buffalo Fire Department’s upper ranks, MOCHA argued.

Buffalo countered that the test, which had been designed by the New York State Civil Service Department, was a valid assessment of the skills, knowledge, ability and personality traits needed to succeed as a fire lieutenant, according to the ruling.


The Western District of New York court dismissed both complaints, in 2010 and 2011, respectively. Plaintiffs had shown that the test had a disparate impact on African-American test takers, but the fire department demonstrated that the test addressed the necessary requirements for the job, the ruling said.

The 2nd Circuit majority agreed.

In dissent, Judge Amalya Kearse said Buffalo had failed to show the test was tailored to the position of fire lieutenant in Buffalo.

Further, she said, the majority’s finding could make it difficult for other municipalities to throw out employment-test results that have a disparate impact on a protected group, like racial minorities.

“(I)t strikes me that this affirmance — allowing Buffalo to avoid liability without having made any effort whatever to seek, verify or defend the test’s validity — will make it virtually impossible for a municipality not to certify for use a test that has clear discriminatory impact,” she wrote.

Joseph Brown, a lawyer representing Buffalo, said the city “was pleased” with the court’s ruling.

“The opinion recognizes the difficult position in which public employers frequently find themselves when making decisions about personnel selection procedures after the United States Supreme Court’s opinion in Ricci v. DeStefano.”

In that 2009 decision, the Supreme Court upheld the validity of a firefighter test in New Haven, Connecticut, that had a disparate impact on minorities.

A lawyer for MOCHA did not immediately return a request for comment Monday.

The case is MOCHA Society Inc et al v. City of Buffalo, 2nd U.S. Circuit Court of Appeals, Nos. 11-2184 and 10-2168.

For the plaintiffs: Thomas Gill.

For Buffalo: Joseph Brown of Hodgson Russ.

From Thomas Reuters

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