00-3771, 00-3768 Reynolds, et al. v. City of Chicago

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“Justifications of discrimination that are based on a public employer’s operational needs are suspect, because they seem to have no natural limits, unlike remedial justifications, which cease when the last traces of the discrimination that gave rise to the remedy have been eliminated.”

“As we pointed out in Builders Ass’n of Greater Chicago v. Cook County, 256 F.3d 642, 644 (7th Cir. 2001), the question whether nonremedial justifications for affirmative action can ever satisfy the equal protection clause has in the absence of definitive resolution by the Supreme Court caused bitter divisions in the lower federal courts. Many courts, however, including our own have at least left open a small window for forms of discrimination that are supported by compelling public safety concerns, such as affirmative action in the staffing of police departments and correctional institutions… Especially in a period of heightened public concern with the dangers posed by international terrorism, effective police work must be reckoned a national priority that justifies some sacrifice of competing interests. If it is indeed the case that promoting one Hispanic police sergeant out of order is important to the effectiveness of the Chicago police in protecting the people of the city from crime, the fact that this out-of-order promotion technically is ‘racial discrimination,’ though its impact, incidence, and motivation are remote from the impact, incidence, and motivation that have shaped the current legal view of racial discrimination, does not strike us as an impressive counterweight. The imperative need for this discrimination had, however, to be proved and not merely conjectured. It would not have done for the City merely to have presented plausible argumentation or to have appealed merely to common sense. It had to substantiate its position with evidence. It did so. It proved that it has a compelling need to increase the number of Hispanic lieutenants; and the increase it defended -the promotion of one Hispanic sergeant-is the smallest increase it could have made.”

Affirmed in part, and Reversed in part, and Remanded.

Appeals from the United States District Court for the Northern District of Illinois, Lindberg, J., Posner, J.