The litigation over promotion tests for Chicago’s firefighters is by no means over, despite a 2010 trip to the U.S. Supreme Court. (See www.theHRSpecialist.com/Chicagofirefighters.) The case is again working its way through the legal system—something that carries a lesson for all employers.
Recent case: In 1995, Chicago gave firefighters a promotion test and created three promotion groups, each with a score cutoff. The second group was deemed qualified for promotion, but those candidates were told they probably wouldn’t be selected. Instead, Chicago randomly chose candidates from the highest-scoring group.
Several black second-tier firefighters sued, alleging the promotion exam had a disparate impact on them and pointing out that they were excluded even though they fell into the qualified category.
The Supreme Court ruled that each time the city drew names from the top group, the black firefighters could sue. It sent the case back to the 7th Circuit Court of Appeals, which has now ruled that Chicago would have to show a valid reason for its selections each time it drew names.
Essentially, it will have to show that picking exclusively from the first group each time is consistent with business necessity. (Lewis, et al., v. City of Chicago, No. 07-2052, 7th Cir., 2011)
Final note: Always consider potential litigation when using hiring or promotion tests. That’s especially true if, as in this case, the test excludes some candidates who might be qualified. Unless you can justify why those candidates were excluded, courts will be suspicious.