Rule Vulcans In, UFA Out in Suit Over Test Bias; Judge Concludes City Will Advocate For Union Interests

By ARI PAUL

In the legal battle over whether past exams for Firefighter discriminated against minorities, the affected union has been ruled out while an advocacy group for minority firefighters was ruled in.

JOHN COOMBS: Judge did the right thing.

A Federal Judge ruled Sept. 5 that the fraternal order of African-American firefighters may intervene on the side of the U.S. Department of Justice in its lawsuit against the city alleging that the 1999 and 2002 written exams had a disparate impact on minorities, but that the Uniformed Firefighters Association could not intervene on the side of the city in the liability phase.

In Case From Outset

Citing Title VII of the Civil Rights Act, United States District Judge Nicholas G. Garaufis noted that the Vulcan Society and a group of individual minority applicants had the statutory right to intervene in the lawsuit because they brought the original charges to the U.S. Equal Employment Opportunity Commission in 2002 that prompted the case.

"In this case, it is undoubtedly true that the proposed plaintiff-interveners will bring additional claims into the litigation, but it is not expected to change the litigation radically," he wrote in his decision.

STEVE CASSIDY: Questions claim of bias.

While not ruling on whether the union could enter as an intervener in the remedial stage of the proceedings if it occurs, the judge denied the UFA's motion to intervene in the liability stage.

Judge Garaufis wrote, "I find that the UFA has failed to meet its burden of showing that the Defendant City does not adequately represent its interests in the liability phase of this litigation."

He ruled that the union could enter the liability phase of the case as a "friend of the court." He added that the union would not be exposed to damages.

Vulcans' Case

The Vulcans - along with a group of individual minority applicants who had taken the exams under challenge - filed charges with the EEOC regarding the 1999 and 2002 exams, and have argued since the lawsuit was filed this past May that they had the statutory right to intervene. The DOJ did not oppose the group's motion.

The UFA had argued that the written exams were integral in determining the abilities of potential Firefighters. UFA President Steve Cassidy told the court in July that the exams "hardly seem discriminatory."

The two groups had volleyed opposition to each others' motions, with the UFA arguing that the Vulcans would unduly expand the scope of the case. A lawyer for the Vulcans argued last month that since the constitution of the International Association of Fire Fighters - with which the UFA is affiliated - forbids racial discrimination, the court should deny the union intervener status. The DOJ also opposed the union's motion to intervene on the side of the city on the grounds that the UFA did not explain how firefighter safety would be compromised as a result of the lawsuit.

In the lawsuit, the DOJ argued that the gap between the scores of white candidates on the written exams and those of African-American and Latino candidates was statistically significant, with the former being higher. Less than 3 percent of the city's firefighters are African-American and Latinos make up slightly more than 4 percent of the firefighting force. The Vulcans claim that minorities make up between 20 and 50 percent of fire departments in Chicago, Philadelphia, Boston and Chicago. The department is still appointing Firefighters from the 2002 exam.

Vulcans: A Good Sign

John Coombs, president of the Vulcans, praised the decision. "The judge did what had to be done," he said. "It's a good indication that justice will be served."

UFA attorney Michael Block said in a statement that because the union still had a right to enter a "friend of the court" brief, it will "receive copies of all court filings and [the court] permitted the UFA to present [its] professional viewpoints regarding issues raised in the case, particularly involving the safety of firefighters."

Shane Kadidal, an attorney with the Center for Constitutional Rights representing the Vulcans, had speculated that the UFA wanted to intervene because hiring and seniority in the department would be affected if the DOJ wins the lawsuit. But former Vulcan President Paul Washington alleged that Mr. Cassidy was playing racial politics in order to increase his popularity in the union.