The Supreme Court reinstated a discrimination ruling Monday in favor of 6,000 black applicants for Chicago firefighting jobs in the 1990s, saying they had properly sued after it was clear that an entry-level test had a “disparate impact” based on race.
The ruling leaves public employers in a pickle if they are required by law to use tests for deciding who should be hired or promoted.
After two Supreme Court decisions with very different results in the last year, public employers can be sued for using tests that screen out most blacks and other minorities; they also can be sued by high-scoring white applicants if the test scores go unused.
The apparent conflict is built into the 1964 Civil Rights Act, the justices said Monday. “It is a problem for Congress, not one federal courts can fix,” Justice Antonin Scalia said.
He spoke for the court in a 9-0 ruling in a case that began in 1995 when 26,000 applicants took a written test to become city firefighters. Faced with the large number applicants for only several hundred jobs, the city decided it would only consider those who scored 89 or above.
This cut-off score excluded a high percentage of the minority applicants. After a trial in 2005, U.S. District Judge Joan Gottschall ruled the test had an illegal disparate impact because the city had not justified the use of the cut-off score. Experts had testified that applicants who scored in the 70s or 80s were shown to be capable of succeeding as firefighters.
The city did not appeal the disparate impact finding, but in Lewis vs. Chicago said the firefighters had waited too long to appeal. The high court disagreed.
Last year, however, the high court ruled that disappointed white firefighters were victims of discrimination by city officials in New Haven, Conn., which had dropped a promotion test after they learned no black candidates were among the top scorers. In a 5-4 ruling, the justices said this amounted to illegal racial bias against the white firefighters.
Nationwide, about 20 million employees work for city and state governments. And in many of these agencies, tests are used to hire and promote employees. That in turn has led to years of litigation on whether the tests are fair.
The decision dealt a potentially costly defeat to the city of Chicago. Earlier this year, a lawyer for black applicants estimated the total damages in the case could reach $100 million.
The ruling was welcomed by John Payton, president of the NAACP Legal Defense Fund, who argued the case. “This victory goes well beyond the immediate results in Chicago. It should ensure that no other fire department or employer uses a discriminatory test,” he said.
Though the recent court rulings have focused on city agencies, the civil rights provision involving disparate impact policies applies to all employers, private and public.
Chicago Mayor Richard M. Daley voiced some weariness with the years of litigation. “For decades we have tried to diversify the Chicago Fire Department. But at every turn, like most cities, we have been met with legal challenges from both sides.”
Since 2006, Daley said, the city has used a “pass-fail” approach so that all those who have passing scores are eligible for jobs.
In other actions Monday, the court agreed to decide whether Arizona’s tax credits for private school students were constitutional or instead amounted to a state promotion for religion. The U.S. 9th Circuit Court of Appeals said the 13-year-old state program steered public money to religious schools, but the justices voted to hear the state’s appeal.
The justices also agreed to decide whether Hank Skinner, a Texas death row inmate, should have the right to obtain DNA testing of crime scene evidence. In March, the justices stopped Skinner’s execution hours before he was to die.