For the second time in less than two years, the U.S. Supreme Court took a close look at the application of “disparate-impact” discrimination law to a fire department. But Lewis v. City of Chicago (Case 08-974-2010) proved far less divisive than last June’s Ricci v. DeStefano.

In 1995, the City of Chicago began a selection process for new firefighters. The first step in the process was a 100-point written exam, with a passing score of 65. Twenty-six thousand applicants took the test. Thousands passed.

In early 1996, the city announced how it would apply the test scores for hiring purposes. First, a pool of applicants who scored between 89 and 100 would be created—the “well-qualified” pool—and firefighter candidates would be selected randomly from that pool. Applicants who scored between 65 and 88 were placed in a “qualified” pool. They were told that, while they were eligible for selection, it was unlikely they’d be selected, but their names would be kept in the qualified pool for as long as the written-test eligibility list was used.

Starting in March, 1997, “qualified” African-American candidates sued Chicago, arguing that the city’s “pool” designations had a disparate impact on African-American applicants by pushing a disproportionate number of them into the qualified pool. The well-qualified pool contained 76hite candidates and 11.5lack candidates, a ratio that all agreed constituted disparate impact.

Over the succeeding six years, Chicago used the eligible list ten times, each time choosing candidates exclusively from the well-qualified pool.

Lewis and his co-plaintiffs won their lawsuit in federal district court. The court found that the city’s selection process using the 76hite/11.5lack well-qualified pool had a disparate impact on black firefighter candidates. The city attempted a business-necessity defense, but the district court found that the city’s “well-qualified” 89 cutoff score was “statistically meaningless,” and the city could offer no evidence that candidates who scored higher on the test made better recruits.

The city also argued that, under Title VII, a complainant had 300 days from the date of the “discriminatory act,” to file an EEOC charge and that, because the “discriminatory act” was the adoption of the eligible list on February 6, 1996, and the first complaint wasn’t made until after the first selection in March 1997—more than 300 days later—no candidate’s lawsuit could stand.

Applying a statistical calculation based on the protected-class population of the qualified pool, the court ordered Chicago to hire 132 randomly-selected black candidates from the qualified pool—the number of black candidates that, statistically, would have been hired if the city had used the qualified pool.
 
Chicago appealed—but not on the basis of the court’s disparate-impact findings or on its business-necessity defense. It argued only its 300-day complaint-deadline defense.

The U.S. Court of Appeals for the 7th Circuit ruled in favor of the city. The discriminatory act, it agreed, was the adoption of the eligible list. Because more than 300 days had passed before the first selection was made, the 10 selections over the life of the eligible list were not discriminatory acts. Lewis and his fellow plaintiffs appealed to the U.S. Supreme Court.

Justice Antonin Scalia wrote for a unanimous court, overturning the 7th Circuit decision. In a disparate-impact case, he noted, each use of the eligible list met the Title VII disparate-impact standard of a “particular employment practice that causes a disparate impact.”

Further, Scalia wrote, a Title VII complainant must only show a “present violation” within the 300-day time limit. While a disparate-treatment complaint requires that a plaintiff complain about a deliberate discriminatory act within 300 days of the act, a disparate-impact complainant doesn’t require proof of a deliberate, intentional act—disparate impact doesn’t require discriminatory intent, only discriminatory outcome—and, Scalia said, citing earlier cases, “[I]f the petitioners could prove that the City ‘use[d]’ the ‘practice’ that ‘causes’ a disparate impact, they could prevail.”

It’s important to note that Lewis v. Chicago doesn’t end the case. The 7th Circuit must now review its earlier decision in light of the Supreme Court’s establishment of “employment practice” standard as the trigger for a disparate-impact complaint deadline.

The Lesson for Chief Fire Officers?

Arbitrarily assigning test-score cutoffs without some evidence of relationship between test-score performance and workplace performance is risky at best. So is using an unvalidated test, where that test score/workplace relationship doesn’t seem to exist in the first place. And a department's disparate-impact complaint exposure is "renewed" each time that test's "eligible list" is used for hiring.

Chicago’s lesson? It’s since gone to a pass/fail entry-level test.

John Rukavina, J.D., is the current chair of the IAFC's Constitution, Bylaws and Resolutions Committee and a past member of the IAFC's Program Planning and Professional Development Committees, as well as a member of a past IAFC committee on accreditation. He practiced law briefly in Minnesota. Chief Rukavina served 16 years as fire chief in St. Joseph, Mo., and Asheville, N.C. From 2000 to 2008, he was the director of public safety for Wake County, N.C.