In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-1272, 00-1312 to 00-1314 & 00-1330

Chicago Firefighters Local 2, et al.,

Plaintiffs-Appellants,

v.

City of Chicago, et al.,

Defendants-Appellees.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 87 C 7295, 89 C 7984, 93 C 5438,
93 C 6175 & 96 C 808--James F. Holderman, Judge.

Argued February 14, 2001--Decided May 3, 2001



  Before Posner, Coffey, and Ripple, Circuit
Judges.

  Posner, Circuit Judge. These
consolidated cases, one dating back to
1987, are brought on behalf of white
firefighters who complain that their
right to the equal protection of the laws
has been infringed by affirmative-action
promotions of black and Hispanic
firefighters made by the Chicago Fire
Department. (One of the plaintiffs also
has a Title VII claim of "race norming.")
The district court rendered judgment for
the City after a bench trial. We affirmed
a similar judgment in McNamara v. City of
Chicago, 

 (7th Cir. 1998), a
challenge by other white Chicago
firefighters to the department’s
affirmative-action promotions, and the
salient facts determined in that
proceeding, see id. at 1222-24, are
similar to those found by the district
judge in the present one.

  The plaintiffs concede that the fire
department long engaged in deliberate
discrimination against blacks and
Hispanics--that, as we said in McNamara,
"until sometime during the 1980s the
people running the fire department
endeavored with considerable success to
make the department uncongenial to blacks
and Hispanics." Id. at 1224. The first
exam for promotion that was validated as
being nondiscriminatory was given in
1987, at which time only 2.6 percent of
the department’s captains were black and
only 1 percent Hispanic. Had promotions
to captain been made on the basis of
performance on the 1987 exam, 14 percent
would have been of black candidates and
3.5 percent of Hispanic ones. The
affirmative action plan challenged in
McNamara and in the present case boosted
these percentages to 20 and 5,
respectively, but because there were so
few minority captains to begin with, and
because promotions are infrequent, the
actual percentage of minority captains
remains far below the minority percentage
of the city’s population even after
correction for age, sex, and other
demographic variables that tend to vary
by race and ethnicity. According to the
2000 Census, 37 percent of the city’s
population is black and 26 percent
Hispanic, though there is some overlap
because some Hispanics are classified as
black; most however are classified as
white.

  After the promotions to captain were
complete in 1992, the percentage of black
captains was still only 10.8 percent and
of Hispanic captains only 3.6 percent--
both significantly below the target
minority percentages for these ranks.
Similar shortfalls characterize the other
ranks as well (firefighters, engineers,
lieutenants, and battalion chiefs); in
addition, as shown in the following
table, the minority perentages in all the
upper ranks are lower than the minority
percentages in the lowest rank. Notice
how even in the lowest rank the minority
percentages are far below the
corresponding minority percentages of the
city’s population as a whole. As late as
1997, only 27 percent of
firefighterspromoted to engineer were
black and 10 percent Hispanic.

Minority Percentages, Chicago   Firefighters, 1996
Rank                % Black     % Hispanic
Firefighter         24.3        9.2
Engineer            17.8        5.1
Lieutenant          15.4        5.8
Captain             16.3        4.9
Battalion Chief     8.2         3.1

  The plaintiffs argue, however, that
population is the wrong pool to use to
calculate departures from
proportionality. Suppose, by way of
illustration of their argument, that the
fire department actually and lawfully
required that captains be able to pass a
Ph.D. exam in chemistry. Then the fact
that the percentage of minority captains
was smaller than the percentage of age-
adjusted and sex-adjusted Chicagoans who
are black or Hispanic would be of no
legal significance. The proper comparison
group would be blacks and Hispanics who
were able to pass a Ph.D. exam in
chemistry. See, e.g., Wards Cove Packing
Co. v. Atonio, 

, 651-52
(1989); City of Richmond v. J.A. Croson
Co., 

, 501-02 (1989);
Hazelwood School Dist. v. United States,

, 308, 310-11 (1977);
Peightal v. Metropolitan Dade County, 

, 1553-54 (11th Cir. 1994). The
plaintiffs argue that before 1972, the
exam that the City required of applicants
for firefighter positions required at
least as much knowledge as a high-school
graduate could be expected to have, that
95 percent of the minority applicants
flunked the exam, and so the comparison
group should be limited to 5 percent of
the minority population of Chicago. In
1970 that would be less than 2 percent of
the City’s population (this is a guess,
but a pretty good one, since 44.4 percent
of the City’s population between the ages
of 20 and 39 was black or Hispanic then),
implying that blacks and Hispanics were
actually overrepresented in the
department, which in 1974 (we do not have
a figure for 1970) was 4.5 percent black
and Hispanic.

  If this is right, then even though
explicit discrimination against blacks
and Hispanics by the fire department in
that era is conceded, it would not
justify affirmative action designed to
bring the percentages of blacks and
Hispanics in the department more into
line with their percentages of the
relevant labor pool. Although those pre-
1972 exams had a disparate impact on
minorities (it can be inferred from the
documents in the record that the white
pass rate exceeded 20 percent, compared,
as we have said, to a 5 percent pass rate
for the members of the minority groups),
and were never shown to be job-related,
only deliberate discrimination is
actionable under the equal protection
clause. Personnel Administrator v.
Feeney, 

 (1979); Washington
v. Davis, 

, 239-48 (1976).
And that is the only basis on which a
pre-1972 exam could have been challenged,
since Title VII (which makes disparate-
impact discrimination actionable) was not
amended to bring state and local
governments within its grasp until 1972.
Fitzpatrick v. Bitzer, 

, 447-
48 (1976).

  In effect, the plaintiffs are arguing a
lack of causal connection between the
City’s deliberate discrimination, which
they concede, against blacks and
Hispanics from time immemorial to as late
as the mid-1980s and the
disproportionately small number of blacks
and Hispanics employed by the fire
department today. The plaintiffs regard
the appearance of disproportionality as
an artifact of the district judge’s
having failed to use the right comparison
group--his ignoring what they contend is
the high educational threshold that all
applicants for jobs with the fire
department had to cross. It is a curious
argument, with no direct support in the
case law: an employer discriminates
deliberately in violation of the
Constitution, but because it also
discriminates without intending to do so
and therefore not in violation of the
Constitution or (at the time of the
discrimination) of Title VII, it can
provide no relief for the victims of the
discrimination without infringing the
constitutional rights of employees who
were not discriminated against.

  We need not consider the legal standing
of the argument, however, because it
lacks adequate factual support. The
evidence consists of a newspaper article,
which is inadmissible hearsay on the
point, Eisenstadt v. Centel Corp., 

, 742 (7th Cir. 1997), and
recollections by three officials
concerning the difficulty of an exam they
last saw more than twenty years ago--the
exam itself was not produced--offered for
the implausible propositions that those
pre-1972 exams required as much knowledge
as a high-school graduate would be
expected to have, and, even more
important, that the exams were not
themselves a part of the scheme of
deliberate discrimination. An exam that
has a disparate impact and is not job
related may be innocent, but then again
it may be a deliberate device to exclude
minority applicants. That it was the
latter is the more plausible inference
given the stubbornness with which the de
partment, until the mid-1980s, resisted
equal treatment of blacks and Hispanics.

  The plaintiffs point us to an exam that
the City gave in 1995 to new applicants
for firefighter positions. The white pass
rate was higher (97 percent) than the
pass rates of the blacks and Hispanics
(54 percent and 66 percent respectively)
and from this the plaintiffs ask us to
infer that it is the educational
deficiencies of the members of the
minority groups, rather than
discrimination, that is responsible for
their having been underrepresented in the
department in the period, before the mid-
1980s, in which their underrepresentation
furnished the justification for
affirmative action. But the 1995
examination has never been determined to
be an accurate, unbiased test of job-
related skills. It has been challenged in
litigation, not yet resolved, as being
discriminatory, and there is no evidence
in the record of this case to validate it
as a proper screen for jobs in the fire
department. The district judge was
therefore not required to accept it as
evidence of an incapacity of members of
the minority groups to meet appropriate
educational standards for firefighters.

  In their emphasis on the 1995 exam and
the pre-1972 exams, the plaintiffs
overlook a more direct problem with the
pool used by the district judge (the age-
and sex-adjusted Chicago population)--
namely that the fire department draws
applicants from the Chicago suburbs as
well as the city, and the suburbs are
"whiter"--and also a more substantial
problem with the City’s affirmative-
action program. The plaintiffs allude to
the latter problem by accusing the
program of "interminability," but give no
more than a bare hint of what they mean
by this. What they could mean, but do not
say, is that affirmative action designed
to remedy past discrimination must,
because it is itself a form of racial
discrimination and must therefore
withstand the beady-eyed review that goes
by the name of "strict scrutiny," e.g.,
City of Richmond v. Croson, supra;
Billish v. City of Chicago, 

,
891 (7th Cir. 1993) (en banc), cease at
the point at which the consequences of
the past discrimination have
substantially dissipated. Adarand
Constructors, Inc. v. Pena, 

,
237-38 (1995); (plurality opinion);
Middleton v. City of Flint, 

,
411-12 (6th Cir. 1996); Taxman v. Board
of Education, 

, 1564 (3d Cir.
1996) (en banc) (alternative holding);
cf. People Who Care v. Rockford Board of
Education, No. 00-3200, 

(7th Cir. Apr. 18, 2001), and cases cited
there. In 1987, the City administered an
entrance-level test that is conceded to
have been appropriate. Anyone who took
the test, passed it, and was hired was
eligible in 1993 to take the exam for
lieutenant, and in 1994 to take the exam
for engineer. Suppose that owing to rapid
turnover, the pool of firefighters
eligible to take the 1993 and 1994 exams
was composed entirely of people hired on
the basis of the 1987 exam. Suppose
further that promotions based on the 1993
and 1994 exams were free from
discrimination. Then, unless minority
persons had been deterred by earlier
discrimination from taking the 1987 exam,
International Brotherhood of Teamsters v.
United States, 

, 365-66
(1977), there would be no basis for
giving them a leg up in promotions. But
if, say, only 50 percent of the pool of
eligibles in 1993 and 1994 had been hired
from among people who passed the 1987
exam, and the rest had been hired
earlier, at a time when the fire
department discriminated against minority
applicants, then the pool of eligible
minority applicants for promotion in 1993
and 1994 would have been artificially
limited and some favoritism in promotion
would have been necessary to create as
many black engineers and lieutenants as
could have been expected to be promoted
to these ranks had the department never
discriminated. The plaintiffs have
failed, however, in their briefs in this
court to argue that our first
hypothetical gives a true picture of the
facts.

  The argument is therefore forfeited,
along with another possible argument--
that unless there is very heavy turnover
in the department, a policy of hiring
members of minority groups in excess of
its percentage of the labor pool will
eventually result in overshooting the
hiring goal. Suppose blacks are 25
percent of the labor pool, but only 10
percent of the fire department, so one
year the department hires 40 percent
blacks, and it repeats this until 25
percent of the department is black. As
the years go by, those 40 percent black
vintages, constituting a larger and
larger fraction of the total workforce,
will bring the black percentage above 25
percent even after the department has
(because new hires of minority persons
are now equal to the percentage of such
persons in the labor pool) abandoned its
affirmative-action hiring--unless the
department discriminates against
minorities in new hiring, which would be
illegal. The easiest way to grasp this
point is to imagine that at time 1, the
department has 1,000 employees, of whom
900 are white and 100 are black; that at
time 2, some years later, 500 of those
employees have retired (450 whites and 50
blacks) and 500 new employees have been
hired, of whom 200 are black, so that 25
percent of the workforce is now black;
and that at time 3, the other 50 percent
of the workforce in time 1 have retired
(450 whites and 50 blacks) and been
replaced by 125 newly hired blacks (25
percent of 500) and 375 newly hired
whites. Then at time 3 the workforce will
consist of 325 blacks and 675 whites--and
thus will be almost one-third black,
rather than one-quarter.

  The only plaintiff to preserve a Title
VII claim, Richard Temple, argues that
the City has engaged in the practice
forbidden by that statute of "race
norming," which means altering scores on
tests so that the mean score is the same
for each race. 42 USC sec. 2000e-2(l);
Billish v. City of Chicago, supra, 989
F.2d at 895; Hayden v. County of Nassau,

, 53 (2d Cir. 1999); Baynes v.
AT & T Technologies, Inc., 

,
1374 n. 5 (11th Cir. 1992) (per curiam).
If the average black score on a test was
100 and the average white score 110,
rescoring the average black test as 110
would be forbidden race norming; likewise
if, regardless of relative means, each
black’s score was increased by 10 points
on account of his race, perhaps because
it was believed that a black with a 10-
point lower score than a white could
perform the job just as well (in other
words that blacks are better workers than
test takers). What the City actually did
was to "band" scores on the various
promotion exams that the plaintiffs
challenge and treat scores falling within
each band as identical. So, for example,
if 92 and 93 were both in the A band, a
black who scored 92 would be deemed to
have the same score as a white who scored
93.

  We must consider whether banding, when
it works to the advantage of a particular
racial or ethnic group, is race norming.
This is a question of first impression.
For although banding has been upheld as a
valid method of affirmative action,
Boston Police Superior Officers
Federation v. City of Boston, 

, 24 (1st Cir. 1998); Officers for
Justice v. Civil Service Commission, 

 (9th Cir. 1992); Bridgeport
Guardians, Inc. v. City of Bridgeport,

, 1148 (2d Cir. 1991), none
of the cases considers its consistency
with the prohibition of race norming.
See, e.g., Officers for Justice v. Civil
Service Commission, supra, 979 F.2d at
725-26.

  We have no doubt that if banding were
adopted in order to make lower black
scores seem higher, it would indeed be a
form of race norming, and therefore
forbidden. But it is not race norming per
se. In fact it’s a universal and normally
an unquestioned method of simplifying
scoring by eliminating meaningless
gradations. Any school that switches from
number grades to letter grades is engaged
in banding. But even number grading
systems are banded. Take a grading system
in which 100 is the maximum grade and
anything below 60 is failing. Suppose
further that there are 200 questions,
each to be weighted equally in the
grading. Someone who answered all 200
correctly would get a score of 100. But
what of someone who answered 199
correctly? Would he get a score of 99 or
100? He "should" get a score of 99.5, but
normally exams are not scored so finely.
So if he is given a score of 100, he has
been put in a band, the 99 to 100 band,
and if he is given a score of 99, he is
put in another band, with anyone who
answers 198 questions correctly. The
narrower the range of abilities in a
group being tested, the more attractive
banding is. If the skill difference
between someone who gets 200 questions
right and someone else who gets 199 right
is trivial to the point of being
meaningless, then giving them different
grades is misleading rather than
illuminating. It is on this basis that a
school will sometimes substitute letter
grades for number grades, thus, for
example, placing all grades of 90 to 100
in the band called A, all grades between
80 and 89 in B, and so forth. Banding in
this sense does not discriminate
invidiously between a student who would
have gotten 85 in a number grading system
and a student who would have gotten 84 in
such a system, just because now both get
B. Nor is banding likely to favor one
group over another. Switching from number
to letter grades helps the student who
would have gotten a 90 and now gets the
same grade as a student who would have
gotten 100, but it hurts the student who
would have gotten an 89 and now is lumped
in with students at the bottom of the B
band.

  The plaintiffs argue that even if
affirmative action in fire department
promotions is justified by the history
and lingering effects of the department’s
long-standing discrimination against
minority persons, the requirement
of"narrow tailoring" required the City to
lessen the burden on the white employees
in one of three ways: creating vacancies
for blacks by adopting an early
retirement plan that would lure whites
into retiring early, making way for the
blacks and Hispanics; paying whites
passed over for promotions in favor of
minority persons what the whites would
have been paid had they been promoted
instead; or promoting whites on the same
schedule they would have been promoted on
had it not been for affirmative action,
and thus simply promoting more people
rather than promoting some minority
firefighters in place of some white ones
("wrap-around promotions"). These methods
of softening the blow sound very
different but are really the same: the
cost of affirmative action is shifted
from the whites actually disadvantaged by
it, that is, the whites who are competing
for promotions with the beneficiaries of
affirmative action, to the taxpayers, who
would be funding the early retirement
plan, the "as if promoted" pay raise, and
the redundant promotions (the wrap
arounds).

  This argument misunderstands "narrow
tailoring." Because affirmative action,
at least when it takes the form of giving
persons a leg up in hiring or promotion
on the basis of their race (or, in the
case of Hispanics, ethnicity, which for
these purposes is equated to race), is a
form of racial discrimination, the courts
insist not only that there be a
compelling case for it but also that it
discriminate as little as is consistent
with the achievement of its valid
objective. See Majeske v. City of
Chicago, 

, 819-24 (7th Cir.
2000); McNamara v. City of Chicago,
supra, 138 F.3d at 1222, and cases cited
in both these opinions. In the present
setting this means that as few white
firefighters should have their promotions
delayed to make way for blacks and
Hispanics as is consistent with remedying
the lingering effects of the fire
department’s long history of racial
discrimination. With the plaintiffs’
other arguments rejected, it is apparent
that this requirement has been met. What
the plaintiffs seek by their "narrow
tailoring" argument is not narrowing the
scope of the affirmative action plan but
shifting its incidence from the white
firefighters to the City’s taxpayers, a
group that, ironically, includes a large
number of blacks and Hispanics, while on
the other hand some at least of the
disadvantaged white firefighters may have
benefited from the lack of competition
from nonwhites in the era of racial
discrimination. But that irony is not our
point. Our point is that the financial
incidence of an affirmative action plan
is normally a detail from the
constitutional standpoint. This would be
obvious if white firefighters had
"affirmative action insurance," insuring
them against the cost of delayed
promotions due to affirmative action pro
grams. The existence of such insurance
would not transform the case from one of
discrimination against white firefighters
to discrimination against the members of
the insurance pool. For compelling
reasons of practicality, courts generally
ignore the incidence of challenged
conduct; hence the rejection of a
"passing on" defense in antitrust,
Illinois Brick Co. v. Illinois, 

, 731-33 (1977), and hence the
economic-loss doctrine of tort law. E.g.,
All-Tech Telecom, Inc. v. Amway Corp.,

, 865 (7th Cir. 1999).
Likewise it would not be practical for
the district judge or us to decide
whether the City’s taxpayers are the more
appropriate group to bear the burden of
the affirmative action program than the
white firefighters.

  What is true is that any individual hurt
by an affirmative action plan can
complain that the burden on him is undue,
for example if he’s being told to give up
his job. See, e.g., Wygant v. Jackson
Board of Education, 

, 282-84
(1986) (plurality); McNamara v. City of
Chicago, supra, 138 F.3d at 1222; Taxman
v. Board of Education, supra, 91 F.3d at
1564; Peightal v. Metropolitan Dade
County, supra, 26 F.3d at 1561. But this
principle is not in play when the only
complaint is about a modest delay in
promotion. Boston Police Superior
Officers Federation v. City of Boston,
supra, 147 F.3d at 24; Peightal v.
Metropolitan Dade County, supra, 26 F.3d
at 1561-62. All but one of the plaintiffs
has been promoted to the job he sought,
just on a slightly retarded timetable.
The burden of delay that they have thus
sustained is insufficient to warrant the
courts in deciding whether to shift that
burden to the taxpaying public, an
inquiry that would involve judges in
indefinite and intractable issues of
public finance. For all we know, the
burden has already been shifted, by
changes in the compensation of Chicago
firefighters designed to protect them
against the consequences of the
affirmative action plan.

  One of the plaintiffs, it is true, John
Fitzgerald, has not yet been promoted--
has in fact been waiting three years to
be promoted and because his score on the
1989 test is now so old will have to take
another captain’s test before he can be
promoted, promising further delay. But we
do not understand him to be seeking
relief separate from his fellow
plaintiffs, such as an immediate
promotion, but instead to have joined
with them in seeking to have the
affirmative action plan invalidated. He
has not preserved an individual claim.

Affirmed.