A legal victory for affirmative action

Applicants for firefighting jobs in Chicago were jubilant after a May 24 Supreme Court ruling that stated they did not wait too long to seek legal redress after a 1995 test proved to be discriminatory against African Americans. The decision allowed the case of some 6,000 African Americans to proceed.

The high court ruling is the second in recent times related to discrimination in firefighting. In an earlier ruling in 2009, based on a suit filed by white firefighters in New Haven, Conn., the court in a 5-4 ruling said that the test that had been deemed discriminatory should not have been thrown out.

According to the city of Chicago’s corporation counsel, Mara Georges, the ruling may place the municipality in a legal bind, costing enormous sums of money to come into compliance with the Supreme Court decision. Georges says that the decision puts the city in a “Catch-22.”

“Use the exam results, which have an adverse impact, and risk lawsuits from the group adversely impacted. Or disregard the exam results and risk lawsuits from those who stand to benefit from the results,” said Georges. (Chicago Tribune, May 24)

The Supreme Court decision could result in the hiring of 120 African Americans by the fire department. Moreover, despite the 15-year delay in resolving the case, some of the applicants feel that they are still physically fit to take on the jobs.

According to 48-year-old Handy Johnson, “I took that test wanting to have a job where I could give back to my community and establish a family tradition for my four sons, who would have been very proud of their dad. It was the job of a lifetime, but I was never given that chance.” Johnson went on to say, “It was a huge slap in the face. Now, I feel a hundred pounds lighter. It feels like when you know you have all the odds stacked against you, but in the end God makes sure the righteous prevail.” (Chicago Tribune, May 24)

The city of Chicago estimates that it will cost approximately $45 million to implement the ruling. Lawyers for the African-American applicants put the cost at $100 million. This cost will involve the hiring of 120 new firefighters and the payment of damages to 6,000 other applicants who were denied employment based on discriminatory policies.

This case has implications for the notion of disparate impact in relationship to pre-employment qualifications in both public and private sector employment. When there are tests and other so-called objective criteria for hiring, the ruling may provide applicants with legal grounds to make claims related to possible discriminatory impact.

“The court’s decision last week in Arthur L. Lewis Jr. et al. vs. City of Chicago also makes it more difficult for employers to win summary judgment to dismiss such cases, observers say. While the decision may have a greater effect on public employers, it applies to private employers as well, attorneys say.”

“The court’s ruling focused on the statute of limitations to file claims in disparate impact discrimination cases. Disparate impact is an employment policy or practice that, while neutral on its face, adversely affects a particular protected group.” (Business Insurance, May 31)

Without rebellions, there is no progress

The passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were the result of protracted struggles in the U.S. southern, western and northern regions. Yet with passage of this legislation, it took the advent of urban rebellions and other political activity to get any real movement in regard to the implementation of affirmative action programs.

In Detroit the implementation of programs designed to hire large numbers of African Americans, women, people with disabilities, lesbian/gay/bi/trans/queer people and other oppressed groups only took place after a 1967 rebellion and radical mass struggles in the schools, universities, against private companies and within the municipal governments. After the election of the city’s first African-American mayor, Coleman A. Young, in 1973, his administration embarked upon a broad affirmative action program that brought thousands of people from historically disadvantaged groups into city government, including police and firefighters.

The frontal assault on affirmative action gained a tremendous boost with the Bakke decision of 1978, which legally struck down numerical goals in the implementation of admission policies at higher educational institutions. Other challenges took place during the 1980s that impacted the implementation of affirmative action programs.

A Supreme Court decision in June 1989 granted permission to white firefighters in Birmingham, Ala., to challenge an eight-year-old ruling which required the hiring and promotion of African Americans within the city’s department.

Essentially this decision removed the ability of consent decrees related to such cases to be applied as a means of resolving racial discrimination charges. With the new rulings in effect, white employers or employees had the legal right to challenge the constitutionality of affirmative action programs that favor the hiring and promotion of African Americans as a measure to correct past discriminatory employment practices.

Despite numerous civil rights acts and court rulings in favor of civil rights and affirmative action, African Americans and other marginalized groups still suffer discrimination and disparate treatment. It will no doubt take the rejuvenation of the anti-racist and nondiscrimination movements to push the struggle forward to achieve full equality and self-determination for all oppressed people.