Court rules for black job-test applicants

WASHINGTON - The Supreme Court on Monday reinstated a discrimination ruling in favor of 6,000 black applicants for Chicago firefighting jobs in the 1990s, leaving 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, they can be sued for using tests that screen out most blacks and other minorities, and 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," said Justice Antonin Scalia.

He spoke for the court in a 9-0 ruling in Lewis v. Chicago, a case that began in 1995 when 26,000 applicants took a written test to become a Chicago firefighter. Faced with the large number of applicants for only several hundred jobs, the city decided it would consider only those who scored 89 or above.

This cutoff score excluded a high percentage of the minority applicants. After a trial in 2005, U.S. District Judge Joan Gottschall ruled that the test had an illegal "disparate impact" because the city had not justified the use of the cutoff. 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 it said the firefighters had waited too long to appeal. On Monday, the high court disagreed.

Last year, the court ruled 5-4 in Ricci v. DeStefano that disappointed white firefighters were victims of discrimination by city officials in New Haven, Conn., which had dropped a promotion test after they learned that no black candidates were among the top scorers. The justices said this amounted to illegal racial bias against the white firefighters.

Nationwide, about 20 million people work for city and state governments. 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 Chicago case decided Monday turned on a narrow issue of timing.

The Chicago-based U.S. Court of Appeals for the Seventh Circuit had thrown out the black applicants' lawsuit, saying they had waited too long to file it. But the justices reversed that ruling Monday.

The decision dealt a potentially costly defeat to the city of Chicago. Earlier this year, a lawyer for black applicants said 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 . . . should ensure that no other fire department or employer uses a discriminatory test," he said,

Although the recent rulings have focused on city agencies, the civil-rights provision involving "disparate impact" policies applies to all employers, private and public.

Chicago Mayor Richard Daley voiced some weariness with the years of litigation. "For decades we have tried to diversify the Chicago Fire Department," he said. "But at every turn, like most cities, we have been met with legal challenges from both sides."

Since 2006, he said, the city has used a "pass-fail" approach so that all those with passing scores are eligible for jobs.

Mara Georges, Chicago's corporation counsel, said the city now planned to hire the firefighter applicants if told to do so by the Seventh Circuit, to which the case was remanded.

Also Monday, the court:

trafficking and forced-

labor convictions of a New York man dubbed the "S&M Svengali."

SOURCE: Associated Press

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Read the justices' ruling in the Chicago case via http://go.philly.com/exam

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