When teaching my classes on High Risk Legal Issues for the Fire Service, a topic that continually arises is how a ruling against a department for a violation of Title VII of the Civil Rights Act is enforced against a department. Notwithstanding an outright judgment against a fire department that involves a lot of money to resolve the issue along with resignations, terminations, demotions and other adverse actions, the term I frequently use is the application of a Consent Decree.
When the plaintiff and the defendant ask the court to enter into their Consent Decree; the court using attorneys, judges or magistrates, maintains supervision over the implementation of the decree. For the fire service, Consent Decrees deals in violations of hiring, promotions, discrimination, reverse discrimination or other action affecting the firefighters or a fire department. The consent decree is designed to be a plan for positive changes in department activities under the law that may require years to accomplish fully.
There are a number of reasons to enter into a consent decree: saves the cost of protracted litigation and obtaining the same results as a trial eliminating the uncertainties of a trial; input by the parties and some control over the remedial plan affecting the department and personnel meeting the needs of both parties and better compliance when both parties are a part of the solution to a particular problem.
In short, a consent decree is an agreement or settlement to resolve a dispute between two parties without admission of guilt, and these are the most frequent types of settlement in the U.S. Many times, the court appoints an administrator to monitor the restructured interactions between parties and ensure the court-mandated agreement is put into place, implemented and enforced
There are many fire and police departments that are operating under a consent decree to include: Seattle Police Department (excessive force and discrimination), New Orleans Police Department (pattern of civil rights violations and other misconduct by the New Orleans Police Department), Davie Fire Department (light duty for pregnancy and retaliation), Austin Fire Department (hiring), FDNY and Chicago (hiring), City of San Francisco (hiring) Baltimore Fire (Title I of the Americans with Disabilities Act of 1990) and many more.
Some consent decrees have been administrated for years to include a department in Leesville, Louisiana for the past 32 years which has been recently resolved and Buffalo NY has petitioned the court to release them from a consent decree that has been in place for over forty years after complying with the consent decree related to mandate hiring quotas overseen by a U.S. District Court judge.
The not so simple lesson learned here is that if you do not break or violate the law, especially those found under Title VII and others protecting your employees, there should be no controversy. As Chiefs and firefighters, doing the right thing at the right time under the law in the area of hiring, promotions, medical evaluations and other daily activities found in the fire service, you will be immune from legal challenges and the effects of a consent decree. It becomes glaringly obvious that fire departments violating the civil rights of their firefighters have not learned the lessons from other departments across the country. This lesson also applies to Human Resource managers, City Managers, Commissioners and city Councils. At times you wonder if the retained attorneys for the various jurisdictions are aware of the violations and if so, why didn’t they intervene early to avoid the legal challenge from their employees.
As we continue to hire more women, people of color and other minorities, our work force will change the demographics, qualities of the firefighter, religious beliefs and other items that will change firehouse culture and we will continue to struggle with those challenges. Chiefs and firefighters attuned to the oncoming changes and needs of our future generations of firefighters will avoid many potential lawsuits and consent decrees affecting their departments.
My suggestion is to learn the law, ask questions, change questionable practices, level the playing field for all applicants and existing employees and create a safe place in your organization for your firefighters and fire officers that will avoid the “when, not if” question related to the inevitable lawsuit against you or the department.