10:50 a.m. CDT, May 24, 2010
Washington...Justice Antonin Scalia, speaking at the court Monday, said he and his colleagues were applying the civil rights laws as written by Congress, not necessarily as he and others think it should be written. Since 1991, federal law has made it illegal for employers to use an "employment practice" that had a "disparate impact on the basis of race."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."David.savage@latimes.com
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