Peter Biondo v. City of Chicago, Illinois

382 F.3d 680, 2004 U.S. App. LEXIS 18245, 85 Empl. Prac. Dec. (CCH) 41,748, 94 Fair Empl. Prac. Cas. (BNA) 513, 2004 WL 1908354
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 27, 2004
Docket02-2707, 02-3099, 03-1921
StatusPublished
Cited by28 cases

This text of 382 F.3d 680 (Peter Biondo v. City of Chicago, Illinois) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Peter Biondo v. City of Chicago, Illinois, 382 F.3d 680, 2004 U.S. App. LEXIS 18245, 85 Empl. Prac. Dec. (CCH) 41,748, 94 Fair Empl. Prac. Cas. (BNA) 513, 2004 WL 1908354 (7th Cir. 2004).

Opinions

EASTERBROOK, Circuit Judge.

Chicago’s Fire Department has five ranks: firefighter, engineer, lieutenant, captain, and battalion chief. Promotions depend on competitive examinations. Chicago developed the 1986 exam for lieutenant (a position open to firefighters and engineers) with care to ensure that it was both non-discriminatory and a valid test of skills. Yet although 29% of those who took the exam were either black or Hispanic, only 12% of those who received the highest 300 scores were in these groups. The Department concluded that this dispa[683]*683rate impact could be justified, under the EEOC’s Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.4, only if the exam were valid for rank-order use—that is, if someone who scores higher on the test is bound to perform better than the person next in line. According to the Department’s expert, this examination had a standard error of measurement of 3.5, which is to say that a person who scored 80 and took a similar test again could score as high as 83.5 or as low as 76.5 without implying that his skills and probability of success in the higher position had changed. Convinced that it could not make promotions from the 1986 list in rank-order fashion, the Department established what it called “standardized” lists and what most people would call racially segregated lists: it drew up one list for whites and another for blacks and Hispanics, and then made 29% of all promotions from the minorities-only list. The Department used these lists until 1991, promoting a total of 209 lieutenants from the 1986 exam.

This process meant that the promotion of some white candidates was delayed, and others were not promoted even though minority candidates with lower scores became lieutenants. Some of the disappointed applicants filed suit under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964. The Department acknowledged that its approach can be sustained only if a compelling interest supports its use of race and ethnicity. See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). It did not argue that either past discrimination or a quest for diversity supports its approach. Cf. Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003); Petit v. Chicago, 352 F.3d 1111 (7th Cir.2003). Chicago instead maintains that it had a compelling need to comply with federal regulations that frown on using tests to make promotions in strict sequence. The district court bifurcated liability from damages and conducted a trial before an advisory jury, which concluded that the Department violated both § 1983 and Title VII. In open court the district judge agreed with this conclusion. Two later jury trials (limited to 19 of the plaintiffs) led to substantial awards of compensatory damages plus equitable relief such as front pay. Biondo v. Chicago, 2002 WL 982336, 2002 U.S. Dist. LEXIS 3463 (N.D.Ill. Feb. 28, 2002); Cloud v. Chicago, 2002 WL 1160930, 2002 U.S. Dist. LEXIS 9817 (N.D.Ill. May 30, 2002).

According to the Department, the jury’s (and thus the judge’s) finding that the 1986 exam was valid is clearly erroneous, see Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982), even though the trier of fact credited plaintiffs’ statistical expert, who supported the exam’s validity. Bryant v. Chicago, 200 F.3d 1092 (7th Cir.2000), sustains rank-order use of a similar exam, making it hard to see how the outcome of this trial could be deemed clearly erroneous. The Department acknowledges that the evidence taken in the light most favorable to the verdict shows the exam’s overall validity as a test of skills but maintains that it does not demonstrate the propriety of making promotions in sequence, given the standard error of measurement. Even if the plaintiffs’ expert undermined the conclusion that the standard error of measurement is 3.5, the Department insists, the record does-not show that the standard error is zero, and without such a finding (which would be impossible, as no exam predicts perfectly) the exam could not have been used to make promotions in rank-order sequence, given the disparate impact that would have ensued.

Let us suppose that the City has the better of the statistical argument on [684]*684this record (perhaps the one compiled in Bryant did more to show the exam’s validity). We shall suppose further that the EEOC’s regulations tell employers not to hire or promote in strict sequence when that would cause minority groups to succeed less than 80% as often as whites. But see Paul Meier, Jerome Sacks & Sandy L. Zabell, What Happened, in Ha-zelwood: Statistics, Employment Discrimination, and the 80% Rule, 1984 Am. Bar Foundation Research J. 139, 158-70. Still, the premise of the City’s argument is that regulations supply a compelling governmental interest in making decisions based on race. How can that be? Then Congress or any federal agency could direct employers to adopt racial quotas, and the direction would be self-justifying: the need to comply with the law (or regulation) would be the compelling interest. Such a circular process would drain the equal protection clause of meaning. Decisions such as Adarand Constructors show that compliance with federal laws cannot automatically be a compelling interest; Adarand Constructors held a federal statute unconstitutional precisely because it required public officials to make use of race, and the statute was not itself supported by a compelling governmental interest. Chicago does not contend that 29 C.F.R. § 1607.4 carries out any compelling governmental interest, and given the holding of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), that disparate impact in hiring or promotion by a public employer does not violate the equal protection clause, it is hard to see how such an argument could be constructed. If avoiding disparate impact were a compelling governmental interest, then racial quotas in public employment would be the norm, and as a practical matter Washington v. Davis would be undone. Congress did not attempt this; to the contrary, it provided in 42 U.S.C. § 2000e~2(j) that an employer’s desire to mitigate or avoid disparate impact does not justify preferential treatment for any group.

The Civil Rights Act of 1991 explicitly forbids the dualist response to disparate impact. 42 U.S.C. § 2000e-2(£).

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382 F.3d 680, 2004 U.S. App. LEXIS 18245, 85 Empl. Prac. Dec. (CCH) 41,748, 94 Fair Empl. Prac. Cas. (BNA) 513, 2004 WL 1908354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peter-biondo-v-city-of-chicago-illinois-ca7-2004.