For the second time in two years, the U.S. Supreme Court has ruled on whether a fire department's personnel practices violate civil rights law. In the latest case, the court ruled that discrimination claims by 6,000 minority applicants for firefighter positions with the Chicago, IL, Fire Department were filed in a timely manner.
The case has its origins in 1995, when the department conducted an entrance exam for firefighter applicants. The city divided the 26,000 applicants' test scores into three categories: "well qualified," "qualified" and "not qualified." Although 37% of the applicants were African Americans, only 11.5% of the African American test takers were in the "well qualified" group. Those in the top two categories were placed on an eligible list, while those who fell into the bottom category were notified that they would no longer be considered. The city then began hiring from the list by randomly selecting those on the "well qualified" list to move into the next stage of processing. None of the "qualified" applicants were selected until the "well qualified" list was exhausted.
In March 1997, an African American applicant who was on the "qualified" list, but had not been selected, filed a discrimination complaint. This ultimately grew into a class-action lawsuit claiming that the city's action had caused an adverse disparate impact on African Americans by selecting only those on the "well qualified" list, which is a violation of Title VII of the Civil Rights Act.
The city sought to dismiss the case by challenging the timeliness of the claims. Employment discrimination complaints must be filed within 300 days of the alleged violation. In this case, the complaint was not filed until 430 days after the test results were announced and the eligibility list was created. The city argued that the claims should have been filed within 300 days of that action. It did not contest that the test created an adverse disparate impact. A federal district court rejected the city's timeliness argument, heard the case on its merits and entered a judgment in favor of the firefighter applicants. The 7th Circuit Court of Appeals reversed that decision and agreed with the city that the claims were untimely because they were filed more than 300 days after the city had announced the test results. The plaintiffs then appealed the case to the Supreme Court.
The Supreme Court reversed the appeals court decision and ruled against the city. It held that the unlawful practice occurred each time the test results were used to hire firefighters. It was not just the creation of the list, but also each use of the list that was unlawful. The list was used on 10 separate occasions to hire firefighters between 1996 and 2001. It was only on the 11th round of selections that the "well qualified" list was exhausted so that "qualified" applicants were considered. A new violation occurred on each of those occasions, creating a new 300-day period for filing complaints. The court's decision sends the case back to the appeals court to determine what relief will be given to the plaintiffs. The district court had ordered the city to hire 132 randomly selected members of the class (reflecting the number of African Americans it found would have been hired but for the discriminatory practices) and awarded back pay to be divided among the remaining class members.
Although the court was unanimous in its opinion, it did seem troubled by the implications of its decision. Justice Antonin Scalia, in writing for the court, said that it "...must give effect to the law Congress enacted, not assess the consequences of each approach and adopt the one that produces the least mischief. Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer's motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix."
While this may seem to be little more than a technical legal decision that addresses procedural issues, it has potentially enormous implications for fire departments nationwide. This decision gives an important tool to groups that seek greater employment opportunities for minority groups. It imposes a practical mandate on fire department leadership to carefully review existing personnel policies and their application. Departments must ensure that even longstanding practices are not having a disparate impact upon minority personnel, since they will now be subject to disparate impact lawsuits for practices they have used regularly for many years.
STEVE BLACKISTONE, a Firehouse® contributing editor, is a Maryland attorney who directs state and local liaison activities for an agency of the federal government. Prior to his current position, he served in a variety of posts on the staff of the U.S. House of Representatives, working both on the personal staffs of members of Congress and on congressional committees. Blackistone also is a volunteer EMT/firefighter with the Bethesda-Chevy Chase Rescue Squad in Montgomery County, MD.