Supremes Consider Timing of Black Firefighter Applicants

WASHINGTON (CN) - Lawyers argued before the Supreme Court Monday over whether black applicants for firefighter jobs in Chicago waited too long to sue, with debate turning on whether the clock starts ticking when test scores are released or when the effect of the score is felt in a failure to hire. Chief Justice John Roberts suggested that the applicants might not know the effect of their scores at the time they're released. "And you say those people should have sued right then?" he asked Chicago's lawyer.

While 37 percent of test-takers were black, blacks made up only 11.5 percent of the "well qualified" pool, which the city exclusively drew from, sparking about 6,000 "qualified" blacks to sue Chicago, claiming the exam had a disparate racial impact.

The applicants sued 430 days after the test results were announced, and 181 days after the second round of hiring. The 300-day limit for filing an employment claim falls between the two and the question now pivots on the definition of a fresh violation.

John Payton, a retired partner at WilmerHale, represented the black applicants and said that each time the test results are used in hiring constitutes a new case of discrimination that resets the 300-day clock. He said that otherwise, racist practices could go unchallenged if they survive 300 days of no resistance.

"We don't want unlawful employment practices to continue to go forever, and ever," he said.

But Justice John Paul Stevens appeared skeptical, noting that the city would not have been able to hire every applicant who passed the test anyway. "Did each one of those hirings give everybody else in the class a cause of action?" he asked.

Justice Antonin Scalia said that Chicago could hypothetically have used the test results during 10 years of hiring without incident before getting sued. "Of what use is a statute of limitations that operates that way?" he asked.

And Justice Ruth Bader Ginsburg likewise appeared sympathetic with the city, saying Chicago might have had difficulty dropping the exam results. "But if it stopped using it, it might be vulnerable to a Ricci-type suit from the people who were benefiting," she said.

The Court ruled 5-4 last June in Ricci v. DeStefano that New Haven, Conn., could not toss the results of an exam used to decide promotions on the basis that no blacks and only one Hispanic passed the test. "This express, race-based decision-making is prohibited," Justice Anthony Kennedy wrote for the majority opinion, noting the difference between disparate impact and disparate treatment.

The ruling reversed Justice Sonia Sotomayor's decision as a 2nd Circuit judge.

Deputy Corporation Counsel Benna Ruth Solomon represented Chicago. She argued that the impact of the exam was felt when the simply "qualified" applicants were told that most vacancies would be filled by "well qualified" applicants before they would be considered. Because classifying the applicants was the only unlawful step, the release of the results should be when the clock starts, she said.

"The time to challenge this has passed," she concluded.

Sotomayor expressed her skepticism. "In the very act of hiring, you are using the test results, and saying, each time, 'I'm going to cut off at this limit and I'm not going to consider someone outside of this limited period,'" she said.

Roberts said a rejected applicant could have tried his luck at another job before realizing that he really wants to be a firefighter. "You force people to challenge the practice when they don't even know if it's going to affect them," he said.

He also depicted a different scenario, where the city told "qualified" applicants that they had a good chance of being hired, even though they would be hired after the "highly qualified" applicants. "And you say those people should have sued right then?" he asked.

Solomon replied that they would have had to sue then, because they would still be suffering from a delay.

Chicago administered the test in 1995 to about 26,000 firefighter applicants, and divided the scores into three categories: well qualified, qualified, not qualified. It then released the results at the beginning of 1996, and was sued in March of 1997.

The district court ruled that each hiring session using the test results was a violation, and reset the 300-day clock. But the 7th Circuit ruled that hiring based on the scores was an automatic consequence of the test, and was not the product of fresh discrimination.

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