Firefighters Claim Reverse Discrimination

April 10, 2009— -- When firefighters battle a raging blaze, they can be sure that at least one thing will treat them all equally:

"The fire isn't going to discriminate against a person whether he's black, white or Hispanic" Connecticut firefighter Ben Vargas, 40, said. "It's going to treat that person the same way."

But in the city of New Haven, Vargas, who is Hispanic, and 19 white firefighters say that is where the equal treatment ends, and discrimination begins. They allege that they were denied promotions because the city gave preferential treatment to blacks.

Matt Marcarelli, who is white, got the top score on a promotion exam in 2003 and was first in line for captain. But when the city reviewed all the test results, it found that the pass rate for black candidates was about half the corresponding rate for white candidates. None of the black firefighters scored well enough for an immediate promotion. As a result, the city threw out the test results.

"Every day I go to work I've got to pin this lieutenant's badge on me, it reminds me I got screwed out of a captain's badge because of the color of my skin," Marcarelli, 38, said. "That gets to you."

In New Haven, city officials knew they were headed for a catch 22 when the test results came back. If the city certified the test results, it was confident it could expect a lawsuit from the black firefighters. But when it threw out the test results, it instead got a lawsuit from mostly white firefighters.

Blacks make up about a third of New Haven's 221 firefighters, 15 percent are officers -- eight of 42 lieutenants and one of 18 captains.

The case has made it all the way to the U.S. Supreme Court, which is scheduled to hear arguments this month. The decision, which is likely to come at the end of June, could affect the hiring and promotion practices for millions of civil servants. Chief Justice John G. Roberts Jr. has made no secret of his opposition to public universities' considering race in admissions decisions, although the New Haven case will be the Roberts' court first look at the use of race in civil servant hiring and promotion.

But Victor Bolden, the city's lawyer, supported the decision to scrap the tests. "It looked like the exam might have been discriminatory against some of the minority test takers. And that was certainly a red flag for the city under the law."

For decades, people of color across the country have filed scores of discrimination lawsuits to challenge testing in fire departments, police departments and public schools.

Civil Rights, Reverse Discrimination and Test Scores

New Haven officials and some of the city's black firefighters argue that written tests are not the best tests to use and less discriminatory alternatives -- such as oral exams -- are available. Gary Tinney, who is a black firefighter in New Haven, said, "Written tests aren't the best to judge a person on how they will perform their jobs."

But whites and Hispanics like Vargas have fought back. Opponents have used civil rights laws to argue reverse discrimination. And they have found some success: The city of Chicago recently settled a major case with white firefighters for $7.5 million.

Vargas said civil rights laws should be used to protect his potential promotion. "The civil rights laws, they have nothing in there which state preferential treatment. The civil rights laws are there for everybody; all American citizens have the same exact rights."

Black firefighters say that the stakes in their case couldn't be higher.

"If we lose this," New Haven firefighter Octavius Dawson said, "the implication is catastrophic. I mean, where does it end. Not just with the fire department. Police department, education, who knows where it could end?"

But aggrieved firefighters say they want to take race out of the equation.

"We want to be treated just as firefighters, whether we are men, women, white, African American, Hispanic. We want to be treated as firefighters, period."