David+G+Savage

David G Savage. “Lawsuit tests use of race as factor in hiring choices.” [|Chicago Tribune]. Apr 5, 2009. pg. 13 The city had coded the test takers by race, and of the top 15 scorers, 14 were white and one was Hispanic. Because there were only 15 vacancies in the top ranks of the fire department, it looked like no blacks would be promoted. http://www.chicagotribune.com/news/nationworld/chi-firefighters_bdapr05,0,6675981.story Frank Ricci, a firefighter from New Haven, Conn., spent months listening to study tapes as he drove to work and in the evenings, preparing for a promotional test. It was a once-a-decade chance to move up to a command rank in the fire department. Ricci earned a top score -- but no promotion. The city had coded the test takers by race, and of the top 15 scorers, 14 were white and one was Hispanic. Because there were only 15 vacancies in the top ranks of the fire department, it looked like no blacks would be promoted. After a racially charged debate that stretched over four hearings, the city's civil service board rejected the test scores five years ago and promoted no one. "To have the city throw it out because you're white or because you're not African-American is insulting," Ricci said when he and 19 other firefighters sued the city for race discrimination. The Ricci case, due to be argued at the U.S. Supreme Court this month, is the first to come before the court under Chief Justice John Roberts that broadly raises the issue of race in the workplace. The outcome could reshape hiring and promotion policies for millions of the nation's public employees -- and possibly for private employers as well. And Roberts, leading a five-justice majority, has made clear he believes it is time to forbid the use of race as a factor in the government's decisions. The Obama administration, taking its first stand on race and civil rights, sided with the city and said they were justified in dropping the test if it had "gross exclusionary effects on minorities." While blacks make up about 31 percent of New Haven's 221 firefighters, 15 percent are officers -- eight of 42 lieutenants and one of 18 captains. At issue case is whether an employer can weigh the racial impact of a hiring or promotional standard. Lawyers for the firefighters say the city violated the Constitution's guarantee of equal protection of the laws as well as the Civil Rights Act of 1964 when it threw out the test scores. The white firefighters "ask nothing more than the basic right to be judged by who they are and what they have accomplished, not by the color of their skin," they say. But the president of the NAACP Legal Defense Fund said this claim ignores the history of discrimination that excluded blacks from fire and police departments. In many cities, including New Haven, the "fire department was the preserve of white males," said John Payton, who is also counsel for the LDF. "African-Americans were virtually excluded." Last month, Chicago quietly paid a $6 million settlement to 75 white firefighters who said they lost promotions when test scores were scrapped in 1986. "This was very similar to what is before the court in the Connecticut case," said Linda Friedman, a Chicago lawyer for the firefighters there. "The city of Chicago saw itself in a predicament. They thought they could be sued by blacks if they used the exam." These cases highlight a conflict in federal civil rights law. On the one hand, the Constitution and Title VII of the Civil Rights Act of 1964 say employers may not discriminate against people because of their race. However, employers also have been told they may not use hiring or promotional standards -- including tests -- that have a "disparate impact on the basis of race" unless it is "required by business necessity." For example, it is not certain that the knowledge tested by the firefighters exam was required to be lieutenant in the fire department. In New Haven, the city's lawyers cited this "disparate impact" rule as their reason for scrapping test scores. "I understand their disappointment," Victor Bolden, the city's corporation counsel, said in an interview, referring to the white firefighters. "But this test had an adverse impact [on minorities]. The city did the right thing." Lawyers for the white firefighters insist "racial politics" and "cronyism" were behind the city's decision. Citing the "voluminous record in this case," the Obama administration says the court should send the case back to a judge in Connecticut to consider whether the white firefighters were victims of racial politics.

dsavage@tribune.com