February 22, 2010

Lewis v. Chicago: Chicago Fire Department douses claims of discrimination

By Lewis v. Chicago: Chicago Fire Department douses claims of discrimination

Author: Ralph W. Kasarda

The United States Supreme Court heard oral argument today in Lewis v. City of Chicago. In this case, African-American fire department applicants sued the City of Chicago under Title VII of the Civil Rights Act of 1964. They claimed that a written examination was discriminatory when it resulted in Chicago’s decision to hire only applicants that scored "well qualified."

While the main issue in the case centers around the statute of limitations, the NAACP Legal Defense Fund has issued a press release that claims the City of Chicago admits that it engaged in unlawful hiring discrimination. Did the City of Chicago really make such an admission? Let’s take a quick look at the facts of the case and see what the City really said.

To become a firefighter in Chicago, applicants must first take a written examination. Based on the results of the examination, applicants are called for a physical abilities test, background check, medical evaluation, and drug test. The top applicants are hired and sent to the firefighting academy

To ensure that its written test was not discriminatory, the City hired Dr. James Outtz, an African-American industrial-organizational psychologist to analyze the firefighter position and develop an examination. The development of the examination took years and cost the City of Chicago $5 million.

To reduce any disparate impact on minority applicants, Dr. Outtz split the written examination into two parts. The first was a multi-choice "open-book" section, developed at the 12th grade reading level. The second part featured short video segments to test note taking and answering questions. Before the test was administered, the City distributed study material created by Dr. Outtz to 35,000 people who registered to take the test. Those taking the test were free to refer to the study material during the actual examination. The test was administered in 1995.

After the test was given, the City determined it would need to hire 600-800 applicants over the next three to five years.  Accordingly, the City decided to call up 2,000 applicants it considered "well qualified," which were those applicants who scored above 89 on the test. Of those persons designated well qualified, 75.8% were white, and 11.5% were African American. To further reduce a disparate impact on minorities, the City of Chicago called up well qualified applicants on a random basis, not by their actual test score.

The City of Chicago thus admits to the test results. But that is a far cry from an admission of intentional discrimination as the NAACP might have you believe. In fact, the City spent millions of dollars to make sure it was not biased against minorities, and admitting the test has a disparate impact is not akin to admitting that it was discriminatory.  As my PLF colleague Joshua Thompson has pointed out numerous times, "disparate impact" is a flawed theory that makes race-neutral acts illegal when they don't achieve the "proper" racial outcome. 

Title VII was originally intended to combat the evils of intentional discrimination in employment. Now it permits claims based upon a mere disparate impact theory, without a showing of discriminatory intent. If successful, these claims sometimes force government employers to grant racial preferences in hiring, even though the government never engaged in intentional discriminatory hiring practices. The granting of preferences to one race, requires discriminating against other races. That is why the Court should reject the claims of the applicants in Lewis v City of Chicago, and hold that Title VII’s disparate-impact provisions are unconstitutional.

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