New policies would head off a lawsuit by firefighters who say they were passed over in favor of less-qualified minority candidates.
By Karen Sloan
Omaha World-Herald (Nebraska)
Copyright 2007 The Omaha World-Herald Company
OMAHA, Neb. — Promoting female and minority firefighters could be more difficult for Omaha Fire Chief Robert Dahlquist if a proposed lawsuit settlement is approved.
The city has agreed to make changes in the firefighter promotion process in order to head off a trial in federal court over the Fire Department’s affirmative action policies.
The deal is up for approval by the City Council today.
Currently, when a job opens, the fire chief considers the three highest-ranking candidates based on how they score on tests and assessments. If a study concludes that women and minorities are “underutilized” in the open job category, Dahlquist can also include female and minority candidates not in the top three, said Assistant City Attorney Michelle Peters. That practice is intended to boost the number of women and minorities in leadership positions throughout the department.
Under the proposed settlement, the chief would be allowed to consider only the top four ranking candidates for each position. For example, if there are two open captain positions, the top eight ranking candidates would be considered.
“The fire union’s position has been that we want the best leaders possible in those positions,” said attorney John Corrigan, who represents the Omaha Firefighters Union. “We think this is the best way to put an end to race-conscious promotions.”
While he does not oppose the settlement, Mayor Mike Fahey is not hailing the new policy because the department will lose some flexibility in promoting women and minorities, said Paul Landow, the mayor’s chief of staff.
“The mayor thinks it’s important for the Fire Department to reflect the community, and for its leadership to reflect the community,” he said. “He would have preferred to have a more flexible promotion plan, but this is a reasonable compromise given the circumstances.”
Landow said that the city’s position would be even worse if it lost at trial and that the settlement is the best option. One potential benefit of expanding the number of ranked candidates is that it increases the odds that one candidate will be a woman or a minority, Landow said.
The new policy stems from a lawsuit filed in 2003 by the union and two firefighters who applied for promotions. The firefighters claimed that they were passed over in favor of less-qualified minority candidates and that the city’s process is unconstitutional.
A U.S. District Court judge threw the case out in 2004, but the firefighters appealed. Last May, the 8th Circuit Court of Appeals ruled in their favor. The court found that the city’s affirmative action plan was not narrowly tailored to remedy past discrimination.
The appeals court sent back to U.S. District Court one aspect of the lawsuit: Omaha’s argument that the affirmative action plan is needed to retain a diverse work force. Under the settlement, that issue would be dropped.
Both of the firefighters have been promoted since the lawsuit was filed.
The city is preparing to expand its efforts to recruit female and minority firefighters, Landow said, to increase the likelihood they will land in the candidate pool for promotions.
The settlement does not affect affirmative action procedures in hiring, nor does it change promotion practices in other city departments.
As part of the settlement, Omaha will pay almost $113,000 in litigation expenses.
This is not the first time the city has been forced to reconsider the Fire Department promotion process.
In 2001, the city settled with two white firefighters who sued, claiming that they were passed over for promotions because of their race. The men were promoted and given three to seven years’ worth of back pay in exchange for dropping their suits.