By Stacey Patton

This week LDF won another significant victory in the Supreme Court. In Lewis v. Chicago, the Court ruled unanimously that the City of Chicago can be held responsible for each time it used a hiring practice that arbitrarily blocked qualified black applicants from employment. After years of being denied justice, more than 6,000 fully qualified African-American job applicants now will finally have a fair opportunity at securing a job with the Chicago Fire Department.

The 9-0 decision is not just a victory for the 6,000 individuals who applied for firefighter jobs in Chicago; it is also a momentous triumph for all workers. The Court reaffirmed that employers cannot use employment practices that cause an unjustified disparate impact on the basis of race, color, religion, sex or national origin.

“The Supreme Court affirmed that job-seekers should not be denied justice based on a technicality,” said John Payton, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc., (LDF) who argued the case before the Court this past February. “This victory goes well beyond the immediate results in Chicago. It should ensure that no other fire department or employer uses a discriminatory test, and LDF will go the extra mile to make sure that they do not.”

Here is some background on the case:

In 1995, the City of Chicago administered an entry-level firefighter exam to more than 26,000 applicants. The passing score for the exam was 65 out of 100, but against the advice of its experts the City arbitrarily divided those who passed into two groups: those who scored between 65 and 88, which the City classified as “Qualified”, and those who scored 89 and above, which the City classified as “Well Qualified”.

The category of “Well Qualified” was essentially a figment of Chicago’s imagination. Everyone who scored at or above 65 was qualified as the City’s own expert pointed out. The City did not divide the qualified applicants into two pools because the individuals who scored 89 or above were the best qualified for the job of firefighter—or even because they were better qualified than individuals who scored between 65 and 88. Rather, as the district court subsequently found, the 89 cut-off score was a statistically meaningless benchmark and the City only adopted it to reduce the pool of applicants.

On eleven separate occasions from 1996 to 2002, the City of Chicago hired firefighters—more than 1,000 in total—using the 89 cut-off score that disproportionately excluded fully qualified black candidates.

On March 31, 1997, Crawford M. Smith, an African-American applicant who scored in the “qualified” range and had not been hired as a candidate, filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).

The timing of his action, and that of five other black applicants who also sued the city would come to be the key issue in the Supreme Court case.

During an eight-day bench trial in the federal district court, the City conceded that the 89-point cutoff had a “severe disparate impact against African Americans,” but argued that its cutoff score was justified by business necessity. The district court rejected that defense and held that the City of Chicago violated the Civil Rights Act for discriminating against black applicants by adopting a “statistically meaningless” cut-off score that bore no relationship to job performance and excluded hundreds of qualified applicants who were disproportionately African American.

The district court ordered the City to hire 132 randomly selected members of the class (reflecting the number of blacks the Court found would have been hired but for the City’s discriminatory practices) and awarded back pay to be divided among the remaining class members.

After the federal district court found that the City’s hiring practice was discriminatory and violated Title VII, the City did not appeal. Instead, the City tried to escape liability for its illegal hiring practice by arguing that the plaintiffs’ claims were barred because they did not file their claims within 300 days after the City first announced its hiring plan.

The Seventh Circuit reversed the judgment. It held that the firefighter applicants’ suit was untimely because the earliest EEOC charge was filed more than 300 days after the City first announced its hiring plan.

The Supreme Court decided to review the case, and John Payton presented oral argument before the Court in February 2010 on behalf of the firefighter applicants. In the Supreme Court, there was no dispute that the cutoff score had an adverse impact on qualified black applicants and was not job-related. There was no dispute because after Chicago lost the trial, it chose not to challenge those facts of discrimination on appeal. So the only question presented to the Supreme Court was whether each use of the cutoff score in each of the hiring rounds was a separate violation of Title VII, or, whether as Chicago argued, its first use was the only violation Chicago’s initial announcement that it intended to use the cut off score in the future.

Vindicating LDF’s arguments, the Court unanimously held that the City discriminated each and every time it hired firefighters and, therefore, the plaintiffs’ claims were timely.

Over a decade later, the Supreme Court unequivocally decided the case in the black applicants’ favor: no concurring or dissenting opinions were issued. The opinion was written by Justice Scalia. It is a tremendous not often that Justice Scalia authors a 9-0 decision in any case, let alone a decision that preserves civil rights and promotes equal employment opportunity.

LDF litigated the case with co-counsel that included the Chicago Lawyer’s Committee for Civil Rights, three Chicago law firms Miner, Barnhill & Galland, P.C.; Robinson, Curley & Clayton, P.C.; Hughes, Socol, Piers, Resnick & Dym, Ltd.; and two solo practionners who are also former LDF staff attorneys Bridget Arimond and Patrick Patterson (now a senior counsel to the chair of the Equal Employment Opportunity Commission).

This case is just the most recent example of fire departments’ long and troubled history of excluding African Americans, other people of color, and women from their ranks. There have been few, if any, sectors of public or private employment where racial discrimination has been more firmly entrenched. Fire departments were foremost among the workplaces that prompted Congress to extend Title VII of the Civil Rights Act of 1964 to public employers in 1972.

Many fire departments refused to hire African Americans before the late 1950s and 1960s, and those willing to hire blacks only did so in rare instances, assigned them to segregated firehouses, and subjected them to severe harassment. Fire departments that did not entirely exclude black firefighters frequently manipulated hiring procedures to screen out black applicants. Such practices resulted in the underrepresentation of racial minorities in fire departments nationwide.

While employment practices in many fire departments have improved since Congress expanded Title VII in 1972, discrimination and racial disparities persist in fire departments throughout the country. In many cities, fire departments have yet to eliminate the effects of entrenched racially discriminatory practices.

This week’s ruling reinforces the mandate of Title VII. It is a wake-up call to employers that unlawful barriers to employment opportunity will not be tolerated by the Supreme Court.

Stacey Patton is the Senior Editor of The Defenders Online and a writer for the NAACP Legal Defense and Educational Fund.