In 1995, the City of Chicago gave a written examination for positions in its Fire Department. Applicants who scored 89 and up were rated highly qualified, while those who scored 64 and below were rated not qualified. Those in between were rated qualified but were told in January 1996 that they were unlikely to be hired.
From May 1996 through November 2001, the City hired 11 groups of applicants from the well-qualified pool. Each time it chose at random from those who had scored 89 or better; it did not follow the common civil-service practice of hiring in rank order from a list.
In March 1997, a person in the qualified pool filed with the EEOC a charge of discrimination. The charge contended that the cutoff of 89 had a disparate impact on African-American applicants. A federal trial court eventually rejected the City’s defense that the cutoff of 89 was job-related for the position in question and consistent with business necessity, and awarded relief that included the hiring of 132 class members and damages.
The City appealed, contending that the March 1997 charge of discrimination was not timely because it came more than 300 days after applicants in the qualified pool learned not only that the exam had a disparate impact but also that they were unlikely to be hired. The Supreme Court sided with the African-American applicants, holding that in disparate-impact litigation the time starts anew whenever the employer uses a test (or other practice) to make hiring decisions. The Supreme Court then sent the case back to the federal Seventh Circuit Court of Appeals to decide how the rest of the case should be resolved.
The City argued that it had “preserved a contention that plaintiffs failed to establish a disparate impact in any particular use of the list.” The Court disagreed, ruling that “the only issue contested at trial was whether the test and its cutoff score were job-related and consistent with business necessity. Because Chicago selected at random from the well-qualified group (those with scores of 89 and up), each batch of hires created the same disparate impact as the overall list. This means that each use of the test was equally vulnerable to plaintiffs’ challenge; there was no difference between contesting the list as a whole (plaintiffs’ actual strategy) and contesting each use of the list (the approach appropriate under the Supreme Court’s decision).
“We grant the possibility that, by chance, one batch or another would not create a disparate impact; indeed, it is possible that chance would produce a batch in which minority applicants predominated. But the City does not say that this occurred, and the law of large numbers is against it. Moreover, because the City hired from the well-qualified pool until it was exhausted, the ten properly challenged ‘uses’ as a whole matched the pool and had the same disparate impact. If one or more of the ten contested hiring classes departed materially from what a random draw would be expected to produce, the City should have pointed this out; it never did, so plaintiffs are entitled to the natural inference that all classes were alike.”
The Seventh Circuit took pains to point out that the results might well have been different if the City’s hiring practices were different:
“If the City had hired in rank order, as many civil-service employers do, things would have been different. Suppose applicants who got 100 had been hired in May 1996, those who got 99 four months later, those with scores of 98 four months after that, and so on. Then it would have been essential for plaintiffs and the district court to evaluate each use of the list separately. For it is possible that some of these uses would not have produced a disparate impact – and, if any given band of scores had an adverse effect on minority applicants, it might have been easier for the employer to justify the practice. Perhaps it would have been ‘consistent with business necessity’ to hire those who scored 100 ahead of those who scored 85, even if it was not necessary to hire those who scored 90 ahead of those who scored 88. But Chicago did not hire new firefighters in rank order. Everyone who scored 89 and up was treated alike; everyone who scored 65 to 88 was treated alike. The City conceded that this difference created a disparate impact. The district judge found that the cutoff at 89 was not justified, and the City did not appeal that conclusion. The City’s concession plus the district court’s uncontested findings establish all that is required for the plaintiffs to prevail on the merits.”
In the end, the Appeals Court let stand almost all of the trial court’s original remedy, requiring the hiring of 132 applicants and the payment of damages.
Lewis v. City of Chicago, Ill., 2011 WL 1812519 (7th Cir. 2011).