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Supreme Court Reviews Familiar Firefighter Bias Issue

Supreme Court Reviews Familiar Firefighter Bias Issue

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Washington Post via YellowBrix

February 22, 2010

WASHINGTON, DC – Sometimes history seems to repeat itself at the Supreme Court, and apparently settled issues reemerge in slightly different forms.

And so there will be a feeling of deja vu at the court Monday morning when the justices turn their attention to an especially familiar-sounding issue: whether minority firefighter applicants in Chicago waited too long to sue when the city used test results in a way that hurt the chances of African-Americans.

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It was only June when 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.

And the delay-in-filing question was at the heart of the court’s divisive decision in May 2007 in Ledbetter v. Goodyear, which said Alabama factory worker Lilly Ledbetter waited too long to sue when she found out her employer paid her less than her male coworkers. In the loss, Ledbetter became a feminist heroine, her case became fodder for the 2008 presidential campaign; her name sits atop the Lilly Ledbetter Fair Pay Act 0f 2008, Congress’s response to the ruling.

But it is not surprising that John Payton, president of the NAACP Legal Defense and Educational Fund, would prefer that his case from Chicago not become known as “When Ricci Met Ledbetter.”

“This is a tough case for reasons everybody knows,” Payton said. Both Ricci and Ledbetter were decided against his interests as the court divided along its usual conservative- liberal ideological fault line.

The Chicago case starts with an entry-level firefighter test that drew 26,000 applicants, 45 percent of them white and 37 percent of them black. The city decided that scoring 65 on the test made an applicant “qualified” for the next step in securing a job.

But 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, 10 classes of applicants were drawn from the group, and the city hired some from the second group only after the first was exhausted.

Thousands of black applicants who were deemed “qualified” sued and won. A federal judge said the city’s actions violated Title VII’s prohibition of hiring practices that seem neutral but had a “disparate impact” on minorities. The judge also ruled that the city had known that the 89 cutoff score was “statistically meaningless” and that there was no proof that those who scored higher on the test made better applicants.

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