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Supreme Court to rule in Chicago bias case

The justices appear ready to side with black aspiring firefighters, who say the city violated their civil rights by using a discriminatory hiring test.

February 23, 2010|By David G. Savage

Reporting from Washington — After skeptical questioning of a Chicago city attorney, the Supreme Court justices sounded Monday as though they would rule that the city must pay millions of dollars in damages to black aspiring firefighters who were screened out by a hiring test given in the 1990s.

Defending the city, deputy corporation counsel Benna Solomon argued that Chicago chose to offer jobs to those who had the highest scores on the firefighters exam. And she said the disappointed black applicants did not sue as required in the year after the city posted the test results.

But Solomon ran into sharp and skeptical questions from the justices, both conservatives, such as Justice Antonin Scalia, and liberals, such as Ruth Bader Ginsburg and Sonia Sotomayor. They said the law forbids the "use" of a discriminatory test, and Chicago had used its test results for nearly a decade.

If the court rules against the city, the case will return to a judge in Chicago to decide on the damages. The suit was brought on behalf of 6,000 African Americans who had "qualified" scores on the test, but lost out to those rated "well-qualified."

Last week, lawyers representing the black applicants estimated the city could owe $100 million for lost wages and benefits. A lawyer for the city put the figure at closer to $30 million.

The Obama administration intervened in the case on behalf of the black applicants. The goal of the Civil Rights Act is "to eradicate discrimination" in the workplace, said Neal Katyal, the deputy U.S. solicitor general. In this case, "the city knew very well the test [was] discriminatory," he said.

When the test results were announced in 1996, Mayor Richard M. Daley said they were "disappointing" because only 11% of the top scorers were black.

John Payton, president of the NAACP Legal Defense Fund, represented the black applicants and argued the city could not escape liability by claiming the plaintiffs waited too long to sue. Because the law forbids using discriminatory tests, "there is a violation every time there is a use," he said.

In 1996, after 26,000 applicants took an entry level test for firefighters, the city said it would choose 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 applicants believed this was unfair, they should have sued then, because the law sets a 300-day limit for filing job discrimination complaints.

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.

The Chicago Fire Department switched to a pass-fail test in 2006, the first year it sought a new batch of applicants since the entrance exam that ultimately led to the current litigation. Now about 69% of more than 5,000 firefighters are white, 18% are black and about 12% are Latino, department spokesman Larry Langford said. Whites account for about 40% of the city population, according to U.S. Census data. Most of the rest of the city's residents are black or Latino.

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

An opinion will be handed down before the end of June.

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