By The Editors

Washington, D.C. — February 22 — In a closely-watched case involving the hiring of black firefighters in Chicago, the NAACP Legal Defense and Educational Fund, Inc. today urged the U.S. Supreme Court to prevent mis-interpreted technical rules from blocking the correction of discrimination in employment.

The case, Lewis v. City of Chicago, involves the illegal exclusion – which Chicago officials have conceded — of thousands of black men and women who had taken and passed an examination the city gave in 1995 to hire new firefighters.

Subsequently, the city officials used the discriminatory procedure eleven separate times from 1996 to 2002 to hire about 1,000 firefighters for the Chicago Fire Department.

According to John Payton, LDF’s President and Director-Counsel, the case goes to the heart of the Title VII section of the Civil Rights Act of 1964, which deals with employment discrimination in all businesses and institutions.

“The Court focused on the issues we thought were central here,” said Payton, who argued the case before the Supreme Court. “The Court will decide whether or not employers that use discriminatory practices not just once but repeatedly can have those practices challenged.”

Although Chicago officials conceded during earlier litigation that racial discrimination did occur and that this barred thousands of qualified black applicants from being hired, they claim the wrong can’t be corrected for two reasons.

They say that, first, the act of racial discrimination occurred only once, in 1996 when city officials first decided to use the test results in an arbitrary way. In turn, they contend that means that black firefighters filed a discrimination charge with the federal Equal Employment Opportunity Commission (EEOC) past the deadline the law sets.

However, Payton told the Court’s Justices that nothing in the law (PDF), underlying federal policy or common sense supports such a problematic interpretation of both the language and purposes of the equal employment law.

He asserted that because Chicago officials used their selection process eleven separate times to hire a new class of firefighters, each time they used it constituted a new act of discrimination.

The eight named plaintiffs and the African American Fire Fighters League of Chicago, Inc. want the Supreme Court to overturn an earlier decision by the U.S. Court of Appeals for the Seventh Circuit, in Chicago, which accepted the city’s contention. That ruling reversed a finding of the Federal District Court there for the black firefighters. LDF has been a co-counsel to the firefighters’ organization since the litigation began.

The nation’s Circuit Courts have been sharply divided on the issue at hand – which concerns the timing of when a claim of discrimination must be filed with the Equal Employment Opportunity Commission in order to be considered. Five circuit courts have ruled that claims can be filed within 300 days after each instance of discrimination occurs; three have declared such claims can be filed only when a discriminatory practice is announced or first instituted. So, the Supreme Court’s decision, which will be issued by the end of June, will have a powerful impact on a critical underpinning of civil rights law.

More than two dozen members of the firefighters organization were present at the Supreme Court today, including its immediate past president, Annette Holt, a veteran of twenty years on the Chicago force, and Gregory Boggs, an eleven-year veteran.

Some observers have linked the Lewis case with Ricci case the Supreme Court decided last year involving New Haven, Connecticut’s efforts to find a way to include black firefighters in its pool of those eligible for promotion. But, in fact, the two cases are different.

The issue in the Lewis case is not whether discrimination occurred, since Chicago officials conceded it did. The issue is the more technical matter of timing. If an employer adopts an employment practice that is racially discriminatory in violation of Title VII, must a plaintiff file a complaint with the EEOC within 300 days after the employer announces the practice, or can the plaintiff do so within 300 days after the employer actually begins to use the discriminatory practice?

In 1995, after Chicago officials reviewed the results of the test, they found that nearly 26,000 of the test-takers has achieved the score 65 which they had set as the sole qualifying standard to fill the pool of applicants from which applicants would be chosen.

Then, however, as Chicago officials themselves later characterized it, for the sake of “administrative convenience” in reducing the pool of applicants they would have to choose from, they arbitrarily imposed a higher cutoff score of 89 for those who they said were “well-qualified,” and declared they would first hire all applicants from that group.

They conceded in later court testimony they took the action even though they knew there was no basis for considering applicants who achieved higher scores were in fact more qualified to be firefighters than those who did not and that imposing the higher score would make the pool of the first-to-be-chosen disproportionately white.

In January 1996, the city mailed letters to all applicants who had taken the test announcing its new policy and simultaneously issued a press release declaring it would use a random lottery to select new firefighters first from the 89-and-above applicants.

That May, it selected the first applicants from the list for the position of entry-level firefighter. Five months later, in October, 1996, it selected its second round of applicants. On March 31, 1997, less than 300 days after the October 1996 selection round, a black applicant who scored between 65 and 88 on the test filed the first charge of discrimination with the EEOC alleging a violation of the “disparate impact” standard of Title VII.

Blacks comprised 36 percent, or about 6,000 individuals of the total number of applicants who had scored 65 and above on the city exam, and whites made up about 45 percent. However, of those who scored 89 and above on the exam – those from which the city chose almost all of its firefighters for six years, whites comprised 77 percent and blacks just 9 percent.