High court set to rule on racial bias

  • Mon Feb 22nd, 2010 10:11pm
  • News

Tribune Washington Bureau

WASHINGTON — The Supreme Court justices Monday appeared ready to rule that Chicago violated the civil rights of aspiring black firefighters by using a hiring test in the late 1990s that screened out most blacks, potentially forcing the city to pay millions of dollars in damages.

The goal of the Civil Rights Act is “to eradicate discrimination” in the workplace, said Neal Katyal, the deputy U.S. solicitor general. “And the city knew this test was discriminatory.”

Sounding the same theme, a lawyer for the black applicants, John Payton, president of the NAACP Legal Defense Fund, said the law forbids the “use” of discriminatory tests. “There is a violation every time there is a use,” he said.

Defending the city, deputy corporation counsel Benna Ruth Solomon said testing experts told the fire department that “the people closer to the top” of the scoring range would do better in the fire academy. In 1996, after 26,000 applicants took an entry-level test for firefighters, the city announced it would choose only from those who scored 89 or above.

Thousands who scored between 65 and 89 said they had qualified but were unlikely to be called for jobs. Solomon said that if they believed this was unfair, they should have sued then, since the law sets a 300-day limit for filing job-discrimination complaints.

But she ran into steadily sharp questioning.

Justice Ruth Bader Ginsburg said this meant an unfair test would be “frozen” in place and not subject to challenge. Justices Antonin Scalia and Sonia Sotomayor said the deadline in the law refers to the “use” of tests, and Chicago used the results of its tests for nearly a decade.

The Chicago case heard Monday is the latest in a long series of racially charged legal battles over tests that are used for hiring new police and firefighters.

Last year, the justices ruled that the city of New Haven, Conn., violated the civil rights of white firefighters when it threw out of the results of a promotional test, fearing the effect on blacks.

Under federal civil rights law, tests that have a “disparate impact” on racial minorities can be challenged as illegal. In such cases, the city must defend the tests and their use as a “business necessity.”

In 1997, a class-action suit was filed on behalf of 6,000 black applicants who had qualified scores but who were passed over for jobs. They won in 2005 when U.S. District Judge Joan Gottschall ruled the test was flawed and discriminatory. She said the cutoff score of 89 used by the city was “meaningless.” It did not predict who would be a good firefighter, she said.