# Billish v. City of Chicago > Court of Appeals for the Seventh Circuit · May 4, 1992 · 962 F.2d 1269 URL: https://www.frixlaw.com/law-library/cases/9000050 ## Case - **Full name:** Earl BILLISH, John Carasotti, Martin Dunne, Richard A. Graf, John Herling, Edward Jaquszewski, Dennis R. Smith, Henry Scavone and John Schmidt v. CITY OF CHICAGO and Louis T. Galante, individually and officially, Defendants-Appellees CHICAGO FIRE FIGHTERS UNION, LOCAL NO. 2, John M. Craven and Larry W. Anoman v. Richard M. DALEY, Louis T. Galante and Jesse Hoskins - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** May 4, 1992 - **Citations:** 962 F.2d 1269; 58 Empl. Prac. Dec. (CCH) 41,454; 58 Fair Empl. Prac. Cas. (BNA) 1269; 1992 U.S. App. LEXIS 9262 - **Precedential status:** Published - **Opinion:** Dissent by Posner - **Judges:** Grant, Posner, Ripple - **Cited by:** 10 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9000050 ## How later opinions describe it (automated extraction) - Noting that the affirmative action program was of limited duration because it was designed to last three years or until the implementation of a specified number of promotions. - describing aggressive recruiting as “race-neutral procedures” ## Opinion text POSNER, Circuit Judge, dissenting. The Supreme Court has told us to take state discrimination against as well as in favor of whites with utmost seriousness. Noble intentions — vague gestures at history — the soothing assonance of “affirmative action” — are none of them enough. We may permit reverse discrimination only when it is shown to be necessary to rectify past discrimination against nonwhites by the state or city or other state agency that wants to practice reverse discrimination. City of Richmond v. J.A. Croson Co., 488 U.S. 469 , 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989). This directive precludes our affirming in No. 90-2182 (Chicago Fire Fighters Union, Local No. 2 v. Daley), where the district court held that white firemen passed over for promotion had failed even to raise a triable issue of unlawful discrimination. They did that and more. The other case, Billish v. City of Chicago, is materially identical, and I shall not discuss it separately beyond noting that while I agree that the decision must be reversed, I disagree with the ground. The problem is not that the district judge applied the wrong standard on summary judgment and should be told to apply the right one, but that the plaintiffs were denied the trial that the correct standard clearly entitles them to. I admire the thoroughness of the majority opinion but there is a danger of missing the forest for the trees. The essential facts bearing on No. 90-2182 are few and simple. The Department of Justice sued the City in the 1970s, charging that the fire department discriminated against blacks. The suit was settled by the entry of a consent decree in 1980 that required the City to strive to promote minority (i.e., black and Hispanic) firemen to the ranks of engineer and lieutenant in a ratio of 1 minority fireman to 4 white ones. The plaintiffs in our case were not parties to the consent decree and are not bound by it. On the basis of exams given in 1985 and 1986, eligible candidates were ranked and in 1987 the fire chief promoted 80 firemen to either engineer (from firefighter, the lowest rank) or captain (from lieutenant, the rank in between engineer and captain), of whom 23 were black or Hispanic. Nine of the 23 were promoted out of rank order. That is, they were promoted in place of nine whites who had higher scores on the pertinent exam. They were promoted only because of their racial (or, in the case of Hispanics, ethnic) identity, and this is racial discrimination. It would be permissible discrimination if, but for discrimination against these groups, they would have accounted for 29 percent of the promotions (23 divided by 80) rather than the 18 percent (14 divided by 80) that they would have accounted for had the promotions been made on a nondiscriminatory basis. The majority is impressed by the fact that while 29 percent of the firefighters (the lowest rank) were either black or Hispanic, only 11 percent of the engineers, 14 percent of the lieutenants, and 4 percent of the captains were. But no inference of discrimination can be drawn from these statistics. If the number of black and Hispanic firefighters had been growing relative to the number of white firefighters, as in fact it had been — the percentage of firefighters who were black or Hispanic had doubled since 1983 — one would expect them to be underrepresented in the higher ranks, since there is a waiting period before one is eligible for promotion to those ranks. *1303 If minority firemen had been held back by discriminatory (or perhaps even just excessively long) waiting periods or racially discriminatory tests, or if their original entry into the fire department had been delayed because of racial discrimination, so that they were lower on the career ladder than they would have been had the City never discriminated, the City would be free to depart from the rank order generated by the test results in order to correct the consequences of discrimination by putting things approximately where they would have been but for discrimination. But there is no evidence of promotion delays or other career delays due to discrimination, or of discriminatory exams. The exams given in 1985 and 1986 had been adopted by agreement between the minority firemen and the City — which by that time had a black mayor whose subordinates discriminated against whites. Auriemma v. Rice, 910 F.2d 1449, 1451 (7th Cir.1990) (en banc); Cygnar v. City of Chicago, 865 F.2d 827, 835 (7th Cir.1989); United States v. City of Chicago, 870 F.2d 1256, 1257-58 (7th Cir.1989); United States v. City of Chicago, 894 F.2d 943, 949 (7th Cir.1990) (concurring opinion). It is implausible either that the City would have demanded exams that discriminated against blacks and Hispanics because it was the — now merely nominal— defendant in the consent proceeding or that the minority firemen would have knuckled under to such a demand. So the fact that blacks and Hispanics didn’t do as well as whites on the engineers’ exam — 44 percent of the white firefighters who took the exam passed, compared to 32 percent of the blacks and Hispanics — is hardly evidence of persisting discrimination that might warrant remedial action. On the contrary, the exam results supply a noninvidious reason why there is a smaller fraction of black and Hispanic engineers than of black and Hispanic firefighters: the blacks and Hispanics didn’t do as well as the whites on a fair test. They would have done even worse had not a portion of the exam been “race normed,” meaning that the scores of the blacks and Hispanics were raised in order to reduce the disparity in the pass rate between them and the whites. Race norming has since been outlawed by the Civil Rights Act of 1991. Pub.L. No. 166, 102d Cong., 2d Sess., § 106, 105 Stat. 1071 , amending 42 U.S.C. § 2000e-2. All this said, the City might be able to prove in a trial that it had to alter the test scores and even depart from the rank order based on those altered scores in order to put blacks and Hispanics where they would have been had there not been discrimination against them twenty years ago and more. I agree that there is adequate reason to believe there was discrimination back then even though there is no actual finding to that effect in any judicial decision; and the effects of that discrimination might have persisted into the 1980s by causing career delays. And there is nothing sacrosanct about tests or test scores. But the record compiled in the summary judgment proceedings does not allow us to conclude with anything like the certitude required to justify a grant of summary judgment that the racial and ethnic discrimination committed by the City against white firemen was justified within the narrow confines authorized by the Croson decision: fails to establish, that is, either that the discrimination against blacks and Hispanics did persist, or that the measures taken by the City are necessary to correct persisting effects. So far as the record shows, none of the minority firemen promoted out of order has ever been harmed, at least so far as his career in the fire department is concerned, by his racial or ethnic identity. I do not suggest that such evidence is necessary, although it would surely be sufficient. The City is entitled to take “action to rectify the effects of identified discrimination within its jurisdiction,” City of Richmond v. J.A. Croson Co., supra, 488 U.S. at 509 , 109 S.Ct. at 729 ; see also Milwaukee County Pavers Ass’n v. Fiedler, 922 F.2d 419, 421 (7th Cir.1991). This dispensation would mean little as a practical matter if the City had to prove that the persons benefited by affirmative action had in fact been harmed by discrimination. But, to repeat a tedious but essential refrain, so far as the record shows, by 1987 the effects of past discrimination by the Chicago Fire Department had completely dissipated, *1304 and the favoritism challenged in this case was pure racial politics. Maybe not, but to conclude not we need a trial. To suggest that these issues can be concluded by reading the papers submitted with a motion for summary judgment is to fail to take seriously the Supreme Court’s instruction to take reverse discrimination seriously. ORDER July 8, 1992. A majority of judges in active service have voted to rehear this case en banc. *** Accordingly, IT IS ORDERED that rehearing en banc be, and the same is hereby GRANTED. IT IS FURTHER ORDERED that the opinion entered in this case on May 4, 1992, be, and is hereby VACATED. This case will be reheard en banc at the convenience of the court. Circuit Judge Joel M. Flaum took no part in the consideration of the petition for rehearing with suggestion for rehearing en banc. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9000050. Public record. Not legal advice.