The Supreme Court on Monday seemed supportive of arguments by Chicago minority firefighters that a new 300-day period for filing discrimination charges opened each time the city used scores from a discriminatory examination to hire someone.
John Payton, director-counsel and president of
the NAACP Legal Defense and Educational
Fund, told the justices that Chicago on 11 occasions used unlawful
cutoff scores on a qualifying exam to make hiring decisions.
“There’s a violation [of Title VII of the Civil Rights Act] every time there’s a use,”
he argued.
Lewis v. City of
Chicago stems from a 1995 entry-level exam for
firefighter positions. Based on test scores, the city divided 26,000 applicants
into three categories: well qualified, qualified and not qualified. Although 37% of the applicants were African-American, only 11.5% of African-Americans were found to be “well qualified.” The city drew solely from the “well-qualified” pool when hiring 10
classes of firefighters between 1996 and 2001.
A class of about 6,000 African-Americans who passed the exam but were not in the “well-qualified” pool sued the city,
alleging the exam had a disparate impact on African-Americans in violation of Title VII. The city conceded the
test had a disparate impact but argued the suit was time-barred.
Yesterday’s arguments focused on the provision in Title VII requiring plaintiffs to file
charges with the Equal Employment Opportunity Commission no more than 300 days
after the unlawful employment action occurred. One of the plaintiffs in the suit
had filed charges 430 days after the city announced the test results, but only
181 days after the second round of hiring based on the test results.
The U.S. Court of Appeals for the 7th Circuit,
agreeing with the city, held that the limitations period began to run when the
city placed the firefighters in the “qualified” category.
During arguments in the Supreme Court, Justice
Samuel Alito Jr. told Payton
that the language of Title VII may support his position, but the justice
questioned Payton’s argument that his position represented the “best policy”
under the law.
“I gather someone could file a disparate impact
claim six or seven years later,” said Alito. “How does that square with
Congress’ intent to have prompt filing of charges?”
Payton replied, “If you don’t say each use can be
challenged, Chicago could take the message that once past the 300 days, it can
use the unlawful practice over and over and over. The animating purpose of
Title VII is eradication of discrimination. Chicago should have stopped using
the qualifying score.”
Deputy Solicitor General Neal Katyal, sharing
argument time with Payton, agreed, adding that a rule requiring people to file
within 300 days of the city’s announcement of the test results would be
divisive and would require the filing
of charges before the applicants
knew the consequences of the city’s action.
Benna Ruth Solomon, the city’s deputy corporation
counsel, said the position of Payton and the Obama administration “cannot be squared with the statute.” But she
immediately encountered a skeptical Justice Ruth Bader Ginsburg, who said the city’s position freezes the status quo “forever”
and gives it a “free pass” after the initial 300 days.
Solomon countered that the disparate impact
violation occurred when the firefighters were placed in the “qualified”
category. “After that decision, nothing else that Chicago did adversely
affected petitioners. They were out. We didn’t reject them each time.”
This is very distressing. All that this area of law has done is give African-Americans a free pass for failure. African-Americans, as a group, are smart enough to get ahead in this world without affirmative action or Title VII remedies. (The most prominent example that comes to my mind is Obama.) However, cases like this, in turn, of the adverse consequence of racism towards whites. Two negatives, and where are the positives? It only gets worse. Now, we have a less qualified person doing a job, and hence, public's interest is at threat. The Supreme Court needs to fix this!
Posted by: John | April 18, 2010 at 10:19 PM