Not only does Judge Garaufis`s decision self-parodyingly demonstrate the idiocy of Disparate Impact theory, but it seems to extend it beyond the EEOC`s Four-Fifth`s rule to demand lowered hiring standard whenever there is any disparity, no matter how nugatory, in hiring rates by race.
The question is: Who will take the case to the Supreme Court? Can we trust the Bloomberg Administration to appeal and to appeal in an aggressive fashion? After all, the DeStefano Administration in New Haven sure wasn`t helpful in defending their firefighter tests, and Bloomberg is under much the same political pressures.
I suspect this shows the key, if unstated, reason that Judge Garaufis refused to let the Uniformed Firefighters Association union become a co-defendant while letting the Vulcan Society of black firefighters come into the case midway through to become lead plaintiff. (Who, you might ask, petitions to be a defendant in a lawsuit? An organization intending to make sure a strong appeal is filed.)
Garaufis likely grasped that the union was much more likely to appeal, and appeal on broad grounds, that Mayor Bloomberg, so if the Judge could keep the union out of the case, he could make up any absurd ruling he wanted with less risk that the political will would exist on the losing side to have him overturned.
Can any lawyers out there explain the necessary strategy for getting Vulcan Society to the Supreme Court?
By the way, another reason for making a big deal out of Vulcan Society is because the late night talk show opening monologue jokes right themselves. This case could generate a huge amount of publicity — after all, many media personalities have a self-interest in competent FDNY firemen.
Another key would be to personalize it by finding firemen who died on September 11, 2001 who wouldn`t have been hired under Judge Garaufis`s ruling. Personalize by showing that he is demeaning and dishonoring their service and sacrifice as being the result of racial discrimination.
It`s time to go to the mat.