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The department insisted residency was essential to operations for several reasons, including that the familiarity with buildings and streets in the five municipalities it covers would produce faster response times, that the likelihood would be increased of hiring Spanish-speaking firefighters in a department that serves a 69% Hispanic population and because it fosters community pride.
“We have no quarrel with the notion that a critical aspect of firefighting is the ability to respond quickly and that familiarity with the streets and buildings of a locale is important to achieving that goal,” the U.S. Third Circuit Court of Appeals wrote, affirming U.S. District Judge Dickinson R. Debevoise’s original decision against the agency.
However, the judges said those points can’t be reconciled with the fact that, once they’re hired, NHRFR firefighters aren’t required to live in the area:
As of three years ago, roughly 65% of the squad lived out of town. One member lived 60 miles away, the judges noted.
What’s more, they said, “community pride is not a sufficient justification for a discriminatory hiring practice.”
In their decision, the appeals judges said the NAACP “presented sufficient evidence to establish that North Hudson’s residency requirement causes a disparate impact by excluding well-qualified African-Americans who would otherwise be eligible for available firefighter positions.”
In more than a decade since NHRFR’s inception, “it has hired only two African-American firefighters (0.62% of its firefighters), despite an African-American population of 3.4%,” the panel noted. “[A] minority workforce representation that low suggests discrimination.
NHRFR, on the other hand, failed to show any negative effects on safety or the operations of the department by restricting the applicant list to residents of the five towns served: Guttenberg, North Bergen, Union City, Weehawken and West New York, the panel wrote.
Living in North Hudson isn’t a “mandatory minimum requirement” for “familiarity with local geography, swift response times, or a bilingual firefighter force,” the judges said, adding that “less discriminatory alternative means of achieving these goals” are available.
When the trouble began, North Hudson sought to hire roughly three dozen new officers. Latino officers dominated the hiring list. Only two were black, the judges noted.
The NAACP sued in 2007, challenging the “underhiring” of African-Americans as a violation of Title VII, the federal civil rights law that bars employment discrimination. Without the residency requirement, the department could have hired anywhere from 65 and 115 qualified African-Americans based on the statewide exam, an expert testifying on behalf of the organization said.
Debevoise, sitting in Newark, agreed.
He pointed to an analysis provided by the NAACP expert that found that 37.4% of protective service positions in an area that included Bergen and Essex counties were held by African-Americans.
“Based on this percentage, one would expect 121 North Hudson firefighters to be African-American,” the appeals panel wrote. “Similarly, 20% of protective service workers statewide are African-American, so, based on that percentage, one would expect North Hudson to employ sixty-five African-American firefighters.
“The differences of 13 and 8.76 standard deviations in these comparisons leave ‘virtually no probability’ that the discrepancies are the result of chance,” Debevoise found. The calculations “indicated that African-Americans are ‘significantly under-represented’ in North Hudson,” he wrote.
The Third Circuit appeals judges agreed:
“[T]he plaintiffs’ expert properly identified both the relevant labor market and qualified population of applicants. The panel further holds that the defendants’ expert, far from creating a genuine issue of material fact, actually corroborated the causal link between the residency requirement and the underemployment of blacks.”
They also emphasized a point made by Debevoise: Based on the NHRFR’s own expert’s calculations, “a significant number of qualified African Americans would be eligible and qualified for employment with [North Hudson] if the labor market were expanded.”
Citing various case law, the judges wrote that Title VII is intended to ensure that “the workplace [is] an environment free of discrimination, where race is not a barrier to opportunity.” It looks to “to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” It makes it illegal for an employer to “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.”
Even “practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as `disparate impact’)” are unlawful,” the judges noted. “The touchstone is business necessity. If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.”
NHRFR also argued that an unrestricted list hurts emergency workers in Hudson County who face residency restrictions in other towns outside the county. However, the appeals judges said that “does not negate the discrimination perpetrated by the exclusion of non-residents from North Hudson positions.”
If any North Hudson residents “believe the residency requirements of neighboring communities unlawfully discriminate against them,” the judges wrote, “they remain free to challenge those employment practices.”
There has been no indication yet whether NHRFR intends to appeal the decision to the U.S. Supreme Court.
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