The Rand Paul Brouhaha and 21st Century Reality

For the last half dozen days, the punditry have been convulsed with debating -- assuming the country got into a giant time machine and went a half century back into the past -- would Senate candidate's Rand Paul's position on laws on the public accommodations portion of the 1964 Civil Rights Act be a good thing or not.

Few seem to have noticed that we are actually living in the 21st Century, when the  issues about discrimination law don't revolve around disparate treatment but around disparate impact, a different legacy of civil rights law. Firefighter cases, as in today's Supreme Court decision regarding the Chicago Fire Department, seem to provide the most public examples of what the current law is, which isn't anything at all like what everybody has been talking about:

Supreme Court backs black applicants in firefighter discrimination suit
Chicago could be liable for as much as $100 million in damages in the case in which minority candidates passed a fire department exam but were not hired.

By David G. Savage, Tribune Washington Bureau
May 25, 2010

The Supreme Court reinstated a discrimination ruling Monday in favor of 6,000 black applicants for Chicago firefighting jobs in the 1990s, saying they had properly sued after it was clear that an entry-level test had a "disparate impact" based on race.

The ruling leaves public employers in a pickle if they are required by law to use tests for deciding who should be hired or promoted.

After two Supreme Court decisions with very different results in the last year, public employers can be sued for using tests that screen out most blacks and other minorities; they also can be sued by high-scoring white applicants if the test scores go unused.

The apparent conflict is built into the 1964 Civil Rights Act, the justices said Monday. "It is a problem for Congress, not one federal courts can fix," Justice Antonin Scalia said.

He spoke for the court in a 9-0 ruling in a case that began in 1995 when 26,000 applicants took a written test to become city firefighters. Faced with the large number applicants for only several hundred jobs, the city decided it would only consider those who scored 89 or above.

In other words, this was one of the objective, blind-graded tests that the Daley Administration spent about $5 million dollars with outside consultants to develop for the fire and police departments in the mid-1990s to come up with a non-discriminatory way to hire and promote public safety employees.  The city decided to choose randomly among the highest scorers, rather than hire in rank order, which is obviously the best way to hire. Blacks who scored below 89 sued on the theory that the city should have hired randomly from among the huge numbers who scored 65 or higher.

This cut-off score excluded a high percentage of the minority applicants. After a trial in 2005, U.S. District Judge Joan Gottschall ruled the test had an illegal disparate impact because the city had not justified the use of the cut-off score. Experts had testified that applicants who scored in the 70s or 80s were shown to be capable of succeeding as firefighters.

Why not the best? Especially because the fire department's future leaders will come from the entry level ranks.

The city did not appeal the disparate impact finding, but in Lewis vs. Chicago said the firefighters had waited too long to appeal. The high court disagreed.

Last year, however, the high court ruled that disappointed white firefighters were victims of discrimination by city officials in New Haven, Conn., which had dropped a promotion test after they learned no black candidates were among the top scorers. In a 5-4 ruling, the justices said this amounted to illegal racial bias against the white firefighters.

Nationwide, about 20 million employees work for city and state governments. And in many of these agencies, tests are used to hire and promote employees. That in turn has led to years of litigation on whether the tests are fair.

The decision dealt a potentially costly defeat to the city of Chicago. Earlier this year, a lawyer for black applicants estimated the total damages in the case could reach $100 million.

The ruling was welcomed by John Payton, president of the NAACP Legal Defense Fund, who argued the case. "This victory goes well beyond the immediate results in Chicago. It should ensure that no other fire department or employer uses a discriminatory test," he said.

Though the recent court rulings have focused on city agencies, the civil rights provision involving disparate impact policies applies to all employers, private and public.

Chicago Mayor Richard M. Daley voiced some weariness with the years of litigation. "For decades we have tried to diversify the Chicago Fire Department. But at every turn, like most cities, we have been met with legal challenges from both sides."

Since 2006, Daley said, the city has used a "pass-fail" approach so that all those who have passing scores are eligible for jobs.

In other words, to get around the EEOC's four-fifths rules, Chicago has made the test so easy in 2006 that about 96% of white applicants pass the test and about 77% of black applicants, which is four-fifths as good, and that selects fire cadets randomly from those who pass, which means that all the test does is eliminate complete idiots.

From the Chicago Sun-Times:

When results for minorities were disappointing, the city established a cut-off score of 89 and hired randomly from the top 1,800 “well-qualified” candidates.
In 2005, a federal judge ruled that the city’s decision had the effect of perpetuating the predominantly white status quo, since 78 percent of those “well-qualified” candidates were white.

The clock normally stops ticking on civil rights cases 300 days after the employment action is taken. The first lawsuit was filed 430 days after the test results were announced.

But, African-American firefighters maintained — and the Supreme Court agreed — that a new act of discrimination occurred every time the scores were used to hire firefighters between May, 1996 and October, 2001. That’s when the city stopped using 89 as a cut-off point because the number of candidates had run out.
Plaintiffs’ attorney Matthew Piers said the decision means Chicago must hire roughly 120 African-American firefighters and adjust their pensions as if they had been on the job since 1995. Six-thousand  others will share roughly $45 million in damages.

“They have to immediately put them on. They can’t say, ‘We don’t have the money,’ ” Piers said.

If class members are too old to perform the physically demanding job, the damages could top $100 million, Piers said.

From the Chicago Tribune:

The Chicago case began in 1995 when 26,000 applicants took a written test to become a city firefighter. Faced with the large number applicants for only several hundred jobs, the city decided it would only consider those who scored 89 or above.

This cut-off score excluded a high percentage of the minority applicants. And after a trial in 2005, U.S. District Judge Joan Gottschall ruled the test had an illegal "disparate impact" because the city had not justified the use of the cut-off score. Experts had testified that applicants who scored in the 70s or 80s were shown to be capable of succeeding as firefighters.

The city did not contest that conclusion, but it won a reversal from the U.S. 7th Circuit Court of Appeals on a procedural technicality. The appellate judges said the applicants had waited too long to sue. They had not sued during the year when the test results were released, but sued only after the scores were used to decide who would be hired.

Civil-rights lawyers appealed on behalf of Arthur Lewis and the other black applicants. They were joined by the Obama administration, which said the federal civil rights law forbids the "use" of discriminatory tests. And by that standard, the suit was filed on time.

The high court agreed Monday in Lewis v. Chicago. "Our charge is to give effect to the law Congress enacted," Scalia said. The class of black applicants had sued at the time the test was used, and it resulted in their not being hired, he concluded.

The unanimous ruling stands in sharp contrast to the deep split within the Supreme Court last year over a case involving white firefighters from New Haven, Connecticut. They sued after they were denied promotions when the city scrapped a test because its impact on black applicants. They won a 5-4 ruling from the Supreme Court saying they were victims of illegal discrimination.

Chicago's case involved the opposite situation. Where New Haven had backed away from using its test results, Chicago pressed ahead and was later sued for using a test that had a discriminatory impact on blacks.

In Monday's opinion, Scalia acknowledged this law creates "practical problems for employers" and can "produce puzzling results." He concluded, however, "it is a problem for Congress, not one that federal courts can fix."

But 21st Century reality will get infinitely less coverage than hypotheticals about Rand Paul's views.

My published articles are archived at iSteve.com -- Steve Sailer