LA CRESCENTA, CA - AUGUST 31: A U.S. Forest Service firefighter uses a drip torch to light a back fire August 31, 2009 in La Crescenta, California. The out of control Station Fire has burned more than 105,000 acres and has forced thousands of evacuations as nearly 12,000 homes are threatened. (Photo by Justin Sullivan/Getty Images)
It is the second time in as many years that the high court has tackled discrimination in testing within the firefighting ranks. In a landmark case last year, the Supreme Court in a 5-4 decision said New Haven, Conn., violated white firefighters' civil rights, throwing out an exam in which no African-Americans scored high enough to be promoted to lieutenant or captain.
In Monday's opinion, Justice Antonin Scalia wrote for the court that the applicants' lawsuit over a city of Chicago test used to weed out potential firefighter trainee applicants was not too late.
Anyone who scored 64 or below was deemed not qualified. But the city set a second cutoff score of 89 points.
Officials told applicants who scored below 89 but above 64 that although they passed the test, they likely would not be hired because of the large number of people who scored 89 or above. The majority of those in the top-scoring group were white; only 11 percent were black.
People are supposed to sue within 300 days after an employment action they seek to challenge as unlawful.
The city says the clock started when it announced the use of the test scores on Jan. 26, 1996. The first lawsuit in the case was filed on March 31, 1997, 430 days after the city announced the results.
But the plaintiffs say a new act of discrimination also happened each time the scores were used in hiring firefighter trainees between May 1996 and October 2001.
A U.S. District judge agreed with the black applicants, but the 7th U.S. Circuit Court of Appeals overturned that decision.
In Monday's high court ruling, Scalia said: "It may be true that the City's January 1996 decision to adopt the cutoff score (and to create a list of the applicants above it) gave rise to a freestanding disparate impact claim. ... But it does not follow that no new violation occurred — and no new claims could arise — when the City implemented that decision down the road. If petitioners could prove that the City 'used' the 'practice' that 'causes a disparate impact,' they could prevail."