On Friday, May 13th 2011 the 7th Circuit Court of Appeals ruled that Chicago must hire 111 black firefighters from a test given back in 1995 and possibly pay damages to others.
Back in 1995, some 26,000 people took a Chicago Civil Service employment exam to become firefighters.
The city set a passing rate of 65% and further, called all those who scored 65 or over, “qualified.”
In its hiring, it chose to hire exclusively from the top 1,800 candidates who scored 89 or better, a group it labeled “highly qualified.”
In response to initial disparate impact complaints, the city conceded that the 89-point cutoff created a “disparate impact” against black candidates — 6,000 of whom had gotten qualified scores — compared with white candidates, the documents show.
Because only 11 percent of the African Americans who took the exam scored 89 or better, the overwhelming number of applicants hired from that test were white.
Worse still from the city of Chicago’s perspective was that after an initial court decision requiring the city to hire 132 black firefighters, the city, which hadn't given another test since 1995 because of ongoing court challenges, gave another test in 2006, BUT this new test was given on a pass/fail basis and all passing applicants were processed randomly for additional tests such as physical agility and background checks. In other words, Chicago not only acknowledged that their written exam had a disparate impact, but instead of defending the efficacy those exams, pre-emptively caved in on hiring standards by moving to a pass/fail written format.
Virtually ALL standardized exams are scored on a rank order basis. It stands to reason that a 100% is a higher, thus better score than a 99% and 92% is better than an 86%. That's also why virtually EVERY standardized exam from the various Civil Service Entrance and Promotion exams to the various "professional exams" (ie. the Law Boards, the CPA Exam, etc.) are scored via rank order - highest scores are weighted higher than lower ones. Regardless of whether such rank ordering results in a "disparate impact" between various ethnic groups, it is generally seen as being neither intentional, nor grounds for even challenging the efficacy of such exams.
As for Chicago, Jenny Hoyle (a spokeswoman for the city's law department) said that the city was still calculating the damages as result of dividing the back pay of 111 firefighters among the 6,000 applicants, but that officials estimate the payout will be about $30 million.
Last May, the U.S. Supreme Court ruled that the plaintiffs lawsuit could proceed despite missing a 300 day deadline.
Writing for the court, Justice Antonin Scalia said lawsuits attacking ongoing employment practices that result in disparate impacts against minority groups are not tied to the same 300-day limitations period.
In 1997, six African-Americans in the “qualified” pool filed a lawsuit claiming that hiring only from the “well-qualified” pool of applicants was causing a disparate impact on minority applicants. A federal judge later certified that there were roughly 6,000 similarly situated minority applicants. A low proportion of African-Americans were in the “well-qualified” group that was used for hiring.
After an eight-day trial, the judge ruled for the African-American applicants in Lewis v. City of Chicago and ordered the city to randomly select 132 of the 6,000 “qualified” applicants for firefighter jobs.
The city appealed that initial ruling and the Seventh U.S. Circuit Court of Appeals reversed that initial federal judge’s hiring order and threw the lawsuit out for violating the 300 day time period. The appeals court DID find that the city of Chicago had engaged in a single act of illegal discrimination when it created the two categories of “qualified” and “well qualified,” but the court noted that the discrimination lawsuit was filed past the 300-day deadline from that event.
Then, on Monday, May 24th, 2010, the Supreme Court reversed that decision, stressing that the appeals court was wrong to focus on a single act of illegal discrimination.
Writing for the Court, Justice Scalia noted, “It may be true that the city’s January 1996 decision to adopt the cutoff score (and to create a list of the applicants above it) gave rise to a freestanding disparate-impact claim,” adding, “But it does not follow that no new violations occurred – and no new claims could arise – when the city implemented that decision down the road”
Justice Scalia also added: “If petitioners could prove that the city used the practice that causes a disparate impact, they could prevail.”
The justice noted that lawyers for Chicago warned that such a decision “will result in a host of practical problems for employers and employees.” But Scalia responded: “It is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted.”
After that ruling, it went back to the 7th Circuit and the current ruling was handed down on Friday, May 13th, 2011. It remains to be seen if Chicago will challenge the 7th Circuit’s ruling in the U.S. Supreme Court.