Monday, May 31, 2010

Supreme Court Says African-Americans Did Not File Legal Claim Too Late

Supreme Court Decision Says African-Americans Did Not File Legal Claim Too Late

Affirmative Action has been under attack for over three decades

By Abayomi Azikiwe
Editor, Pan-African News Wire

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 allows the case of some 6,000 African-Americans to proceed.

The high court ruling is the second of which 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.” (Chicago Tribune, May 24)

"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. Lawyers for the African-American applicants said that the cost of implementing the decision would be $100 million.

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 said. (Chicago Tribune, May 24)

“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.”

The City of Chicago estimates that it will cost approximately $45 million to implement the ruling. 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.

According to the online website Business Insurance “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)

Affirmative Action Under Attack

The passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were the result of protracted struggles in the southern, western and northern regions of the United States. 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 the city of Detroit the implementation of programs designed to hire large numbers of African-Americans, women, people with disabilities, LGBTQ people and other oppressed groups only took place after the 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 which impacted the implementation of affirmative action programs.

A Supreme Court decision in June 1989 granted permission to white firefighters in Birmingham, Alabama 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 which favor the hiring and promotion of African-Americans as a measure to correct past discriminatory employment practices.

In another Supreme Court decision during the same year, it was ruled that there were time limitations on how long one could wait to file lawsuits for racial discrimination in employment practices. In the Lorance v. AT&T, No. 87 case, three African-American women who filed suit in 1983 over discriminatory practices dating back to 1979 with AT&T in Aurora, Illinois, had their legal complaint dismissed by the court which declared that cases brought under Title VII of the 1964 Civil Rights Act must be filed within 300 days.

During the 1990s and the 2000s, several states passed legislation and held referendums that outlawed affirmative action. In Michigan, after a Supreme Court decision that partially upheld affirmative action at the University of Michigan Law School and its undergraduate school, prompted a right-wing initiated referendum that banned the policy throughout the state.

The recent Supreme Court decision involving the Chicago Firefighters applicants’ case is significant but it will remain to be seen how the ruling will be implemented. Legal rulings have been historically important in fighting discrimination and racism but they have never been a substitute for mass action on the part of the oppressed and their allies.

In 1954, the U.S. Supreme Court ruled that the separate but equal decision related to public accomodation in the Plessy v. Ferguson case of 1896 was unconstitutional. Nonetheless, it would take another 15 years of intense and consistent civil rights and black power struggles to achieve minimal movement in regard to school desegregation.

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

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