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Justices say employers may not use discriminatory testing practices

By Robert Barnes
Washington Post Staff Writer
Tuesday, May 25, 2010; A03

Employers who use tests that have the effect of ruling out disproportionate numbers of women and minorities may be sued each time they use the results to hire, the Supreme Court ruled Monday.

The court ruled unanimously that a group of more than 6,000 African Americans may sue the city of Chicago on their claim that the way the city used a written application test kept them from being hired as firefighters. Justice Antonin Scalia said the city opened itself to liability each time it used the test results to hire a class of firefighters over a six-year period and rejected Chicago's assertion that the applicants waited too long to sue.

"Under the city's reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact" on minorities, Scalia wrote.

Federal law forbids employers from using an employment practice that "causes a disparate impact on the basis of race, color, religion, sex or national origin," even if there is no discriminatory intent. The only exception is if the employer can show the practice is job-related -- a test of physical strength, for example -- and "consistent with business necessity."

John Payton, president of the NAACP Legal Defense and Educational Fund, who argued the case on behalf of the black applicants, said the decision will reach far beyond Chicago.

"This is a very significant victory, which should cause other cities and other employers to stop using discriminatory tests as any part of their hiring process," Payton said.

Business groups said the decision will force employers to defend themselves against allegations of discrimination that occurred years in the past.

"We are very disappointed with the court's decision," Karen Harned, executive director of the National Federation of Independent Businesses' Small Business Legal Center, said in a statement. "It's unfortunate that the court found that the statute of limitations will begin to run anew every time the employer applies the disputed practice."

The court's unanimity stood in stark contrast to the questions of employment discrimination that have split the court in the recent past.

In June, the court decided the flip side of the issue, saying the city of New Haven, Conn., was wrong to junk the results of its firefighter-promotion test because too few minorities qualified. The 5 to 4 decision in Ricci v. DeStefano set new standards for when efforts to protect one group amount to discrimination against another.

The delay-in-filing question was at the heart of the court's divisive decision in May 2007 in Ledbetter v. Goodyear. That ruling said Alabama factory worker Lilly Ledbetter waited too long to sue when she found out her employer paid her less than her male co-workers.

In the loss, Ledbetter became a feminist heroine for some and her case became fodder for the 2008 presidential campaign. Her name sits atop the Lilly Ledbetter Fair Pay Act 0f 2008, which said each paycheck constituted a new act of discrimination.

But the Chicago case presented a different set of facts.

The city's entry-level firefighter test drew 26,000 applicants, with the passing grade set at 65. Faced with a huge number of qualified applicants, the city created two groups: a "well-qualified" set of those who scored 89 or better, and a "qualified" group of those who scored 65 to 88. For years, the city limited its hiring to the "well-qualified" group, which was skewed racially -- 76 percent were white and 11.5 percent were black. In all, the city created 10 classes of firefighter recruits, hiring some from the "qualified" group only after the "well-qualified" group was exhausted.

Thousands of black applicants who were deemed "qualified" sued and won. A federal judge said the city had known that the 89 cutoff score was "statistically meaningless" and that there was no proof those who scored higher on the test made better recruits. She ordered the city to hire 132 applicants from the class and ordered back pay that could amount to tens of millions of dollars, Payton said.

When the city appealed the decision, it did not dispute the court's finding but said that the African American applicants had filed their claim too late. The city argued that those applicants were hurt when the hiring list was first compiled and the job seekers were told they would probably not be hired, but it contended that the applicants missed the 300-day deadline for filing a complaint.

Chicago Mayor Richard M. Daley said in a statement that the city faces challenges no matter how it approaches firefighting hiring.

"For decades, we have tried to diversify the Chicago Fire Department," Daley said. "But at every turn, like most cities, we have been met with legal challenges from both sides."

The city in 2006 began categorizing applicants on a pass/fail scale.

Scalia acknowledged that each side made a good argument and sympathized with employers' contention that practices they had used for years might now bring new disparate-impact suits.

But he said those are arguments to be made to Congress.

"It is not our task to assess the consequences of each approach and adopt the one that produces the least mischief," Scalia wrote. "Our charge is to give effect to the law Congress enacted."

The case is Lewis v. City of Chicago.

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