Do Americans have a right to expect that firefighters responding to calls from their neighborhoods will always be the best-trained, most capable individuals available? Not if the U.S. Department of Justice has its way. That's the disturbing message from a discrimination suit DOJ filed against the New York City Fire Department alleging that it discriminated against black and Hispanic applicants.

Oddly enough, the case was not based on any particular act of discrimination. It was based purely on the fact that somebody somewhere decided that too many NYFD applicants had failed a job exam. The DOJ argued that these multiple failures were undeniable evidence of "disparate impact." That's the quack legal theory that it isn't necessary to show discriminatory intent to prove discrimination. All that is required is evidence that a policy or procedure has "the effect of disproportionately excluding members of a particular protected group," to quote from DOJ's website.

A district judge in 2010 awarded $128 million in damages to those applicants and appointed a monitor to oversee NYFD's hiring practices. Earlier this week, thankfully, a federal appeals court overturned that ruling, calling it an "excessive intrusion." The intrusion, it should be noted, was on behalf of forcing employers to do the government's bidding in selecting employees on some basis other than fitness for a job, which is another way of saying "hiring quotas." New York City's Deputy Fire Chief Paul Mannix put it well, saying "there can't be any diluting of standards ... if candidates don't measure up, they can't be kept on because of gender or skin color. It hurts firefighters and citizens of the city of all races and genders."

It's reassuring that common sense prevailed at the appeals court level, but why did this case get there in the first place? Although the case was filed in 2007 under President George W. Bush, Attorney General Eric Holder made it a top priority, as did another Obama appointee, Assistant Attorney General Tom Perez, whose job makes him the government's top civil rights enforcer. Disparate impact theory is a crucial tool for those like Holder and Perez who believe they are all that stands between racist America and racial catastrophe.

"The Department of Justice will not tolerate discrimination in employment on the basis of race or national origin, whether that discrimination is intentional or the result of employment practices that have discriminatory impact," Perez said in a January 2010 press release applauding the $128 million award against NYC. Perez deemed disparate impact theory so important that he intentionally pulled the Justice Department out of a whistleblower case that could have cost St. Paul, Minn., $200 million. The quo to that quid was the city's agreement to drop a potential Supreme Court case that could have limited disparate impact's usefulness in discrimination cases.

Perez's next stop in Washington is likely to be secretary of labor. Obama's nomination of him for that post was approved by a Senate committee Thursday on a party-line vote. If the full Senate approves Perez, the man who wanted New York City's first responders to lower their hiring standards will be in charge of national labor policy. What could possibly go wrong?



This editorial erroneously said that a federal appeals court overturned a ruling against New York City that imposed a $128 million fine and a monitor on the city's fire department hiring practices because the department engaged in discrimination through disparate impact. In fact, the court only partially struck down the ruling by shortening the monitoring time and concluding the city had not intentionally discriminated. The city did not appeal the disparate-impact ruling.