Chicago Fire Discrimination Case – Another Fire Service Case Sets Precedent

Another in a long line of precedent setting cases involving the fire service was decided today by the US Supreme Court. The case, Lewis v. Chicago, involved alleged discrimination against African American applicants for the Chicago Fire Department who took a test in 1995.

The department set a passing score of 64 on the exam. Applicants who scored at least 64 but below 89 were informed that they passed the test, but would probably not be hired given the number of candidates who scored 89 or above.  Applicants scoring 89 and above were classified as “well qualified”.

The majority of “well-qualified” applicants were white. Only 11 percent were black. The first class of trainees began in May, 1996, and ten more classes followed over the following five years using the same list.

Under Federal law, someone who alleges employment discrimination is required to file a complaint with the Equal Employment Opportunity Commission (EEOC), or the designated state law employment commission, within 300 days of the employment action they seek to challenge. Filing with the EEOC is a procedural pre-requisite to filing a lawsuit. The first EEOC complaint about the 1995 Chicago Fire Department entrance examination was filed in March, 1997.

In defense of the discrimination claims, the city of Chicago took the position that the 300 day clock started to run on January 26, 1996, when it first announced the test scores. The plaintiff’s who sought to challenge the test as discriminatory alleged that a new act of discrimination occurred each time the scores were used to hiring firefighter trainees between May 1996 and October 2001.

The trial court sided with the black applicants, and ordered the city to hire 132 randomly selected African American applicants who scored above 64. The court also ordered the city to divide backpay owed among the rest of the black applicants. The 7th U.S. Circuit Court of Appeals in Chicago overturned that decision, and the case was appealed to the US Supreme Court.

Writing for the Court, Justice Scalia concluded that the 300 day clock starts to run when an employer uses a particular employment practice that has a discriminatory effect. He agreed with the city that the January 26, 1996 decision on cutoff scores was one such employment practice, but it was not the only one.  Each time an employer uses discriminatory list to create a new training academy class, there is another employment practice that could potentially violate Title VII, and thus start a new 300 day period. 

Notably, Justice Scalia made a point of saying that the issue of whether the Chicago Fire Department’s test itself actually created a disparate impact was not before the court. He further stated:

“the City says, “petitioners never proved, or even attempted to prove, that use of the [eligibility] list had disparate impact,” … since the theory they advanced did not require them to do so. If the Court of Appeals determines that the argument has been preserved it may be available on remand. But it has no bearing here. The only question presented to us is whether the claim petitioners brought is cognizable. Because we conclude that it is, our inquiry is at an end.”

The case has been remanded back to the 7th Circuit for further clarification of issues, and may go back to the district court for additional rulings before it is finalized.

To download the decision: Download Lewis_v_Chicago

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • John Fitzgerald Jones

    My name is John F. Jones. I participated in that exam and I scored in the 86/88 percentile. I found it strange that they were only going to hire in the 90+ percentile of applicants. Now people say affirmative action is unfare to the majority, but when the deemed majority is in all actuality the minority we as the deemed minority can’t help but to deduce that the old racist Chicago politcal machine is still in affect mode. I am fully capable of maintaining a position within the Chicago Fire Dept. I wish I had been given the opportunity to do so. How much longer will the color of my skin continue to be the cause of me not being eligible for significant gainful employment within the city limits? With all due respect to the department heads you probably passed on some excellent talented brave men and women of color. I was proud to have passed the exam, but because I had been a victim of racism all of my life at that point and beyond I wasn’t surprised. Disappointed, but not surprised. I hope a viable solutioin can be reached. There are good people who would love to represent the C.F.D. given the chance. I being one of them.

  • John
    Thank you for your post. It is all too easy to overlook people such as yourself – who are not involved in the suit but are inevitably impacted by these cases. I can’t help but wonder why the test-makers cannot deliver a product that does not unfairly discriminate. Then again, is that the problem? Or are the tests actually fair but differences between the educational levels of the various pools of applicant accounting for the differences? Or is there some other factor?
    Without exception every person I have spoken with wants the same thing out of a testing process – a fair opportunity to become a firefighter. If everyone wants the same thing – why are we struggling in seemingly every major city to get there?

  • CB

    So what you’re saying John, is that people who scored higher than you on the test got jobs, and you’re upset about that?
    And to think, I only got upset when people who scored LOWER than me got jobs…

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