Minnesota Lawyer
After three decades of court involvement, a class action lawsuit against the Minneapolis Fire Department is finally coming to an end.
The suit, alleging a pattern and practice of race discrimination in the hiring of entry-level firefighters in the department, began in 1970 in the U.S. District Court for the District of Minnesota — the court has maintained jurisdiction of the action ever since.
The agreement ending the extensive litigation, as well as federal court supervision of the matter, was recently approved by U.S. District Court Chief Judge Paul A. Magnuson.
“The city is extremely pleased with the settlement and the termination of [federal court] jurisdiction,” said Assistant Minneapolis City Attorney Burt T. Osborne, who has represented the Minneapolis Fire Department for the past four years. Noting that nearly 40 percent of the city’s firefighters are now members of minority groups, Osborne said: “We don’t need [court] supervision anymore.”
Legal Aid attorney Roderick J. Macpherson III, who has represented the plaintiffs for the past five years, said he is pleased with the improved racial composition of the Minneapolis Fire Department and encouraged the city to continue to use the diversity-encouraging procedures developed under the supervision of the court during the past 30 years.
Macpherson said that “changing any of those procedures would be cause for alarm and would require great scrutiny as they may signal a change in the city’s commitment to diversity.”
The suit at a glance
The class action — Carter et al. v. Gallagher et al. — was filed 30 years ago against the members of the Civil Service Commission of the city of Minneapolis, the personnel director of the commission and the fire chief.
The plaintiff class — also known as the Carter class — was made up of black, Hispanic, and American Indian applicants for entry-level firefighter positions in the Minneapolis Fire Department (MFD), and included all present and future members of these classes who would seek such positions.
The plaintiffs asserted that the recruitment, examination and hiring practices of the department denied them the right to due process of law and equal protection of the law guaranteed by the Fourteenth Amendment, as well as the right not to be discriminated against in employment on the basis of race as guaranteed by 42 U.S.C. sec. 1981.
“The original lawsuit was prompted by the fact that the fire department was an all white, all male fire department at that time,” said Macpherson. “The lawsuit was an across the board challenge to all of the department’s hiring practices that the plaintiff class alleged were discriminatory.”
Following a trial in 1971, U.S. District Court Judge Earl Larson issued a 43-page decision that generally upheld the contentions of the plaintiff class, finding that the city had engaged in racially discriminatory hiring practices. Larson ordered the city to stop its discriminatory practices and to implement fair tests and other practices to correct its history of discrimination. The order also provided for continuing jurisdiction of the federal court.
In 1972, federal courts ordered the department to devote one-third of its recruitment class spots to minority group members until 20 blacks, Hispanics or American Indians had been hired.
Seven years later, however, the department still had not met the requirement.
“In 1979, the city continued to be in violation of the court’s order,” said Macpherson. “The plaintiff class brought a motion, went through a hearing, and…after the contempt hearing was completed, the [city] stipulated to the entry of [two] consent orders [issued by the court].”
One of the consent orders explicitly prohibited the city from using any kind of selection device that had not first been validated according to the Equal Employment Opportunity Commission (EEOC) guidelines. It also created the Firefighter Advisory Steering Committee, a watchdog group composed of community and city representatives, which monitored the city’s hiring practices to ensure compliance with the court’s orders.
The other consent order created an affirmative action plan concerning recruitment of Carter class applicants.
According to Macpherson, the court’s orders did not create long-term quotas or goals and instead focused on ensuring that the city used fair and nondiscriminatory tests and selection practices and that it had adequate procedures for recruiting Carter class applicants.
“The theory was that if you have an adequate number of Carter class applicants in the application pool and if you have fair practices and procedures, the selection process would result in an adequate number of Carter class [employees],” Macpherson observed. “That is essentially what’s happened — with a lot of oversight.”
Over the years, other contempt motions were filed in the case as well. In 1997, the city was found in contempt for violating the court’s orders in connection with a psychological examination that had been administered to job applicants.
Another contempt motion concerned the practice by some applicants of claiming they were American Indians when they were not.
“That set off some major problems … that were finally resolved in the last year,” said Macpherson. “The city agreed to implement a policy it had adopted many years ago of requiring people who claimed to be American Indian to verify their claims.”
Recent turmoil
The most recent issue arising between the parties involves the administration of a personality test — the Employment Inventory/Customer Service Inventory (EICSI). Initially, the plaintiff class contended that the test had not been properly validated according to EEOC guidelines.
In an attempt to resolve the matter, the parties agreed that the city would use the EICSI test for a time and then analyze the results to see whether it had an adverse impact on Carter class groups.
Following an analysis in 1998, the plaintiff class filed another contempt motion, contending that the results indicated the test did have an adverse impact on blacks, Hispanics and American Indians. The city argued, however, that the number of people in the statistical pool was too small for the court to make an adequate adverse impact analysis.
Accordingly, prior to the hearing on the motion, the parties agreed that the city would continue to utilize the EICSI test during its year 2000 hirings.
“The compromise was that [the city] would stop using the eligibility list that was developed in 1998, that they would do a new round of recruitment, and that they would use the personality test in 2000,” said Macpherson. “When they did we would combine the data from 2000 and 1998 and re-analyze the test to see if it had adverse impact.”
When the data was analyzed, the plaintiffs’ expert again advised that the test had some adverse impact — which led to the most current contempt motion.
Prior to the hearing, however, the parties agreed to a settlement that ended not only the latest dispute, but federal court jurisdiction of the 30-year suit as well.
Resolution
The settlement and termination of feder
al court jurisdiction came about largely in response to Judge Magnuson’s articulated belief that the case had gone on long enough and that he wanted the court’s involvement to end.
Under the stipulated settlement — approved by Magnuson last month — the city will administer the EICSI, as well as a second personality test, in its next round of hiring. The city’s Public Service Commission will review the results, receive public comment and then make a decision on which test will be used to determine advancement in the hiring process.
In addition, two black applicants are guaranteed to move past the personality tests and on to the next stage of the selection process. The city also agreed to pay the plaintiff class $20,000 in attorneys’ fees and expenses.
With respect to termination of federal court jurisdiction, Macpherson referred to the stipulation as “a negotiated phase-out.” Until Jan. 2, 2001, the federal court retains jurisdiction over any disputes that may arise in the matter. After that date, however, additional problems would require a new lawsuit.
Positive change
Over the years since the lawsuit began, the city has completely revised its selection process, adopting new selection devices and tests and utilizing new procedures. The city asserts that “a great deal of needed change has been woven into the fabric of the [MFD’s] culture and institutionalized in its recruiting and hiring practices.”
Osborne acknowledged that during the four years he has been representing the city in the lawsuit, the parties have had their differences.
“There’s no getting around it,” he said. “[Nonetheless], the fire department and human resource department have developed a very fair, nondiscriminatory hiring plan that includes aggressive recruitment and fair tests…that do not take into account race or gender,” Osborne observed. “[The city has] leveled the playing field for all people interested in becoming firefighters.”
Macpherson said that he is happy that the city has improved its recruitment and hiring practices, but he remains somewhat skeptical.
“I think the change in the department — the fact that the department is no longer an all white, all male department — is due to the court’s orders and the work of the steering committee and of our office to monitor the city’s compliance with those orders,” said Macpherson. “Based on my experience working with the city so far, [however], I’m concerned about what will happen in the future when there is no longer that kind of oversight.”
