Seven black city firefighters passed over for promotion because they did not score high enough on a written exam will rise to captains’ ranks and get cash payments if theHouston City Council approves a lawsuit settlement Wednesday.

Lawyers for the city have negotiated a settlement that offers $301,165.12 in attorneys fees and back pay to Dwight Bazile, Johnny Garrett, Thomas Ward, Mundo Olford, George Runnels, Trevin Hines and Dwight Allen.

Garrett, Ward and Runnell have retired since the lawsuit was filed.

The seven passed exams for captain or senior captain in 2006, but many white firefighters scored higher. Because promotions were awarded to candidates with the highest scores, the seven did not make the cut.

They sued in 2008, arguing the city discriminated against them by using a racially biased test. The lawsuit states that the promotional exams “”have an adverse impact upon African-Americans.””

Whites who passed the exam were promoted at more than twice the rate of blacks who passed, according to the suit. It also claims that studies and research in organizational psychology demonstrate that written job knowledge exams have little value in predicting who will perform better in the positions at stake.

‘Changes needed’

The settlement is not an acknowledgment of any wrongdoing, City Attorney David Feldman said.

“”There clearly were concerns with respect to the exam and the impact of the exam,”” he said. “”As we looked at it, and as the court looked at it, we recognized that changes needed to be made to the exam so that it could properly validated for (equal opportunity) purposes.””

Feldman said the Fire Department will begin using a new exam this year that has been validated by a testing firm to assure that it does not produce results related to the race or ethnicity of the test takers.

The plan headed to council does not settle how to test going forward. Wednesday’s settlement would only dispose of the claims of the seven firefighters. Changes to the promotional system should be negotiated with the representatives of the entire firefighting corps, not just seven of them, said Jeff Caynon, president of the Houston Professional Fire Fighters Association.

“”Our issue is that the seven plaintiffs have dictated to the city changes to the promotional system irrespective of our collective bargaining agreement,”” Caynon said.

The test is the primary factor in determining who gets promoted within the department. At the time the suit was filed, an education anthropologist at the University of Texas said explanations for black-white test score gaps include blacks more often receiving an inferior education than whites and minorities’ vulnerability to performance anxiety that stem from stereotypes.

Two years ago, the U.S. Supreme Court ruled that the New Haven Fire Department violated the civil rights of white and Hispanic firefighters by throwing out the results of a promotional exam after it was determined that no blacks had scored well enough to gain promotions. Fourteen of the plaintiffs were then promoted at the end of 2009.

Lawyer Dennis Thompson, of Akron, Ohio, represents black New Haven firefighters seeking to change the promotion process. Thompson represents the black Houston firefighters, as well.

Previous lawsuits

Thompson credited the city with looking at his clients’ grievance as a problem to be solved rather than a case to be won.

“”The process that comes out of this is much better for everybody, not just blacks,”” Thompson said. Better testing will result in a more diverse firefighter corps with more capable people earning promotions.

The city has been sued several times by litigants alleging discriminatory hiring and promotion practices.

In 2008, the Equal Employment Opportunity Commission found that the Fire Department’s promotions policy was unfair to women. In 1993, the city promised to promote 106 black and Hispanic police officers to settle an 18-year-old lawsuit that challenged the Police Department’s promotional exams.