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Chicago police misconduct has cost city taxpayers dearly in recent years, but an array of discrimination lawsuits aimed at the fire department is also rapidly burning through city cash.
Since 2008, Chicago has paid nearly $92 million in workplace discrimination cases involving a fire department with a reputation for a macho culture that has long resisted diversity, a Better Government Association analysis of city data shows.
The cost has been flying under the radar for years and dwarfs the total of similar payouts for all other major U.S. cities except New York, where discrimination lawsuits against a department triple the size of that in Chicago have cost at least $109 million over the same time frame, records show.
Chicago’s fire department long had few African-American firefighters and its first women didn’t join the force until 1986, and change even after that has come only in fits and starts that has contributed mightily to a mounting legal bill for the city.
As recently as December, the City Council approved the final payout of a $7 million settlement with 59 African-American women who sued over a physical skills test the fire department once required of job candidates. The women alleged the test was rigged to keep them off the force.
“The city has a terrible history in recruitment,” said Marni Willenson, an attorney for the women. “It has done nothing to bring women into the fire ranks.”
>> Read this story at the Sun-Times
The vast majority of the Chicago payouts – more than $85 million – have been made since Rahm Emanuel became mayor in 2011, though many of the underlying lawsuits predated his time in office and the biggest expenditure ties back to a case filed in 1998 when Richard M. Daley was mayor.
In all, the $92 million total stems from about a dozen lawsuits. Though one suit that cost the city $6 million was a reverse discrimination case, the others focused on discrimination against minorities and women. Specifics vary from case to case, but in general plaintiffs accused the fire department of broad discrimination in both hiring and promotions based on race, gender and disabilities.
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A current lawsuit includes allegations a nursing mother working in a training facility was repeatedly denied access to her breast pump while on duty and that someone smeared feces on a female candidate’s training uniform in the changing area. The city has denied the allegations.
Legal setbacks and costs notwithstanding, there are indications that resistance to change at the fire department may still be ongoing. Recent firehouse inspections by investigators for the Equal Employment Opportunity Commission were followed by the posting of a notice at one facility reminding male firefighters that facilities set aside for women were off limits.
National experts on fire departments and discrimination issues say the large payouts are a sign that training at firehouses across the nation is lacking.
“You could train the whole department effectively for $500,000 or a million dollars. It would be far less than that settlement total,” said Stephen Paskoff, a former EEOC trial attorney who is a specialist in labor and employment law. “It doesn’t make sense to continue this behavior.”
Curt Varone, a retired Rhode Island firefighter who runs a national blog that examines legal issues among fire departments, added that discrimination problems will persist without proper training.
“If you don’t train members of a department to deal with these problems we have, how do you expect people to work through them?” asked Varone, who is also an attorney.
In a statement emailed to the BGA, Fire Department spokesman Larry Langford said the department is committed to “being a more inclusive and accommodating employer for all members.”
The $92 million discrimination tab includes not just settlements and judgments but also court costs and fees, according to an examination of public records. On top of that, the city also has spent at least $2.2 million in just the past two years on outside attorneys to handle fire department discrimination lawsuits.
By far the biggest bill to the city stems from the 1998 case brought by minority job applicants who argued a pre-employment written test was biased. After losing several times in court, including in the U.S. Supreme Court, the city has paid more than $75 million in damages to thousands of African Americans who didn’t become firefighters because of the test, as well as back pension payments to others who made the force and fees to the plaintiffs’ lawyers. Almost all of the payments in the so-called “Lewis” class have occurred since Emanuel’s 2011 election.
Under Emanuel, the city has been aggressive in moving to settle lingering discrimination cases involving the fire department.
Jane Elinor Notz, the city’s first assistant corporation counsel, told aldermen during a finance committee meeting in December that settling discrimination suits rather than fighting them in court often makes financial sense. The $7 million settlement in the testing dispute with African-American women “minimized the city’s potential exposure of more than $34 million, and it increased the diversity of CFD by hiring firefighters from a traditionally under-represented demographic,” Notz told aldermen.
To be sure, the city’s pricetag for police misconduct far exceeds that for problems at the fire department. Between 2008 and 2015, according to a BGA analysis, the city spent more than $514 million on alleged police misconduct, including damages, fees and outside counsel fees.
At the fire department, payouts varied from year to year but, on average, cost the city about $10 million annually. To put that number into perspective, that’s about the same as the city projected in revenue from the sale of parking permits last year.
The high price of discrimination lawsuits at Chicago’s fire department stands out when compared to the costs of similar actions involving fire departments in the largest U.S. cities, according to a BGA survey of the nation’s 10 largest cities.
Between 2008 and 2016, San Antonio paid nothing in workplace fire department discrimination claims, while San Jose, Phoenix, Houston and Dallas each paid less than $1 million in settlements and judgments. Philadelphia paid out $1.4 million; San Diego paid $2.3 million; and Los Angeles forked over $14 million, according to records obtained by the BGA through open records laws.
Only New York, at about $109 million, exceeded the legal costs incurred by Chicago. But with more than 15,000 firefighters and paramedics, New York’s department is triple the average size of Chicago’s force, which Langford said is about 4,900.
“In many departments, there’s a resentment of some of the consent decrees and programs that have advanced the careers of minorities and women,” Varone said.
In recent years, the number of female firefighters in Chicago has averaged about 3 percent. The national average is 4.1 percent for non-volunteer forces, according to a report by the National Fire Protection Association.
In an interview with the BGA, Langford said the number of females working for the Chicago department is higher than the National Fire Protection Association figure and closer to 8 percent when paramedics are counted along with firefighters.
While the largest payments stemmed from actions that occurred during Daley’s tenure as mayor, the swirl of accusations about department wrongdoing continues to this day.
The current case brought by Willenson involves a claim over physical skills testing procedures used on 12 female candidates seeking to become paramedics between 2014 and 2015.
In 2000, the department first imposed a physical skills test for paramedic applicants to gain acceptance to the Fire Academy. That test became the subject of a lawsuit and the department replaced it with another skills test for those already accepted into the training program.
It’s now that second test that’s the subject of Willenson’s suit. The plaintiffs argue that it, too, is also biased and note that all male trainees in 2014 and 2015 passed critical portions of the test compared to only 79 percent of women.
“I think of this as a new set of hurdles to keep women out of the department,” Willenson said.
According to the complaint filed by the female paramedic candidates, Fire Commissioner Jose Santiago conceded the women had a point, once describing a test sequence requiring the lifting of heavy weight while moving as “not realistic” with paramedic job demands. In court documents, the city disputes that claim.
Women did not perform as well as men on the test.
The lawsuit also alleges the city has failed to accommodate nursing mothers in training facilities as well as provide adequate bathroom, shower and sleeping facilities for women. It also contends female trainees have been subjected to repeated verbal and physical harassment and intimidation. The city has denied the allegations.
Langford said that second test is also no longer being used. The department isn’t using any physical tests at the moment, he said.
In another development, investigators for the federal employment opportunity agency also visited four city engine houses in November to inspect sleep, shower and locker room facilities used by women, according to a Chicago attorney.
Alisa Arnoff, an attorney who represents a female firefighter on a pending discrimination charge, said the firehouses that underwent scrutiny included ones in the Loop, Near North Side and Mount Greenwood neighborhoods. Inside one of those stations, she said, a notice was posted instructing male staff not to use female quarters at any time.
The investigation also includes allegations of retaliation, Arnoff said.
An attorney with the EEOC declined to confirm that charges had been filed or an investigation was underway. Firefighters Union Local 2 also declined to comment.
Langford would not confirm the EEOC investigation. But in his emailed statement to the BGA, Langford said the department “is working directly with the city’s Fleet and Facility Management Department and the Office of Budget and Management to fund the necessary changes to facilities to meet the needs of its changing workforce to work and live while on duty.”
In 2013, the Chicago Fire Department adopted a new code of conduct, discrimination and sexual harassment policy, but that hasn’t quelled allegations or costs.
In September 2016, a federal appeals court ruled in favor of women in one of the discrimination cases involving the physical fitness tests, which holds the potential to cost the city even more money.
Costs in discrimination cases can grow beyond early estimates. The 1998 case stemming from the pre-employment test initially was projected to cost the city about $40 million, but over nearly two decades of legal wrangling that price nearly doubled.
Eventually, the city decided to borrow the millions needed to pay for the verdict, and taxpayers will be on the hook for the debt plus interest for years to come.
