Minority Firefighters Race Against The Clock

Fourteen years ago the city of Chicago gave an exam to applicants to their firefighter jobs. 37% of those applicants were black. When Chicago got the results, it bracketed all applicants into three groups, and said it would be hiring from the high-score group first. Only 11.5% of the applicants in that group were black, and understandably they sued.

However, those black applicants waited until after Chicago had hired some firefighters, filing suit 430 days after Chicago had announced the results and the groupings. That delay, Chicago says, means that the applicants complained after the 300-day statute of limitations on racial employment discrimination had run out. The black applicants countered that their lawsuit was filed only 181 days after Chicago had hired firefighters on the basis of the test, and that that hiring decision was the discrimination of which they complained.

This dispute about the timing of the statute of limitations today went before the U.S. Supreme Court.

Most of the Justices seemed to favor the applicants’ positions, including even conservative members of the Court. Chief Justice John Roberts seemed bothered by the idea that, even if the second tier of applicants had been told they would likely be hired, those applicants did not file suit as soon as the racially-uneven pools were announced. Worse, as pointed out by Justice John Paul Stevens, if the city of Chicago announced that it would only hire firefighters with high school degrees (assuming there was racial disparity in graduation rates), no one could file a complaint after 300 days. Even someone who only later decided to become a firefighter would have no right to complain about racial discrimination. If a city giving a racially-biased test made it 300 days without complaint, it could continue to use the test until the end of time.

On the other hand, some Justices seemed worried about the consequences of a decision in favor of the applicants. Justice Roberts worried that every time Chicago made a hiring decision it would give black applicants another opportunity to sue. Worse, a city receiving test results with an apparent racial bias would have to choose between using the test for hiring, and risk facing lawsuits whenever it hired someone, or throwing out the test, and potentially facing a lawsuit like the one brought by white New Haven, Connecticut, firefighters last year. Roberts conceded, however, that cities face potential lawsuits over all kinds of issues, and they have to figure out the best course of action to take.

Overall, though, the Justices seemed likely to rule in favor of the black applicants. Justice Antonin Scalia went as far as to argue with the applicant’s lawyer about whether the announcement of results is a violation at all. That announcement, according to Chicago, is the only violation.

The case is Lewis v. Chicago.

Supreme Court: Either Way New Haven Will Be Sued

by Christina Lovato, University of New Mexico-Talk Radio News Service

In 2003, the New Haven, Connecticut, Fire Department administered written and oral exams to determine which employees would be eligible for promotions to lieutenant and captain; there were seven captain and eight lieutenant vacancies, but despite those who passed, no one moved up.

Of the 41 applicants who took the captain exam, the top nine scorers included seven whites and two Hispanics, and of the 77 applicants who took the lieutenant exam, the top 10 scorers where white.

After the Civil Service Board discovered from the scores that no black employees and only two Hispanics passed the test, they determined that the results had produced a significant disparate impact and chose to not certify the results.

The only information provided to the firefighters and public were the scores, given by race and gender. Test-takers did not receive their individual scores.

Seventeen white candidates and one Hispanic candidate who had taken the exams filed a lawsuit in federal court against the City of New Haven, the mayor, and other city executives.

Frank Ricci, a firefighter who took the exam stated that the questions on the test were drawn from “nationally recognized” books and believes the test was fair, and therefore the city should honor the results.

Part of Ricci’s case is that before throwing out the results the city should at least have to consider whether the exam was fair.

In the Supreme Court today the justices expressed concern over the bind that New Haven is facing: because the city didn’t use the results, they were sued for reverse discrimination, but if the city had used the results, they could have faced a lawsuit for discrimination.

Justice Souter expressed this dilemma by saying “You’re damned if you do, damned if you don’t.”

The decision in the case of Ricci vs. DeStefano is expected in May.