Expanding potential liability for employers and their employment practices insurers, the U.S. Supreme Court gave the green light to litigation involving the use of tests that have a disparate impact on a protected class.
At issue in the case–Lewis et al. v. City of Chicago, Illinois–was the question of whether black applicants to firefighter jobs in the City of Chicago who didn't make the grade based on results of a written test, had waited too long to file charges of discrimination with the Equal Employment Opportunity Commission.
Although Chicago argued against the EEOC charge filings–which were made more than 400 days after test results were announced, and missed a 300-day cutoff date for filing the charges–Justice Antonin Scalia delivered the unanimous opinion of the Supreme Court.
The ruling essentially said the filings were timely when measured against the dates on which the city subsequently used test scores to move groups of job candidates forward in the hiring process. Chicago engaged in this activity nine times over a six-year period after initially notifying applicants of their scores.
"Under the City's reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact," Justice Scalia wrote.
"Moreover, the City's reading may induce plaintiffs aware of the danger of delay to file charges upon the announcement of a hiring practice, before they have any basis for believing it will produce a disparate impact," he continued.
After administering a test in 1995, Chicago sorted test scores to categorize applicants as "well-qualified," "qualified" and "not qualified." Applicants were informed in January 1996 that pools of job candidates would be drawn randomly from the "well-qualified" group and allowed to proceed to other phases of employment screening (like physical abilities tests).
"Qualified" applicants were notified that they were not likely to be called for further processing based on Chicago's hiring needs, but that their names would be kept on an eligibility list.
The hiring process extended over a six-year period, with Chicago first selecting applicants from the "well-qualified" group and not reaching the "qualified" group until the final (ninth) group of applicants was selected.
In the interim, six black "qualified" applicants filed discrimination charges with the EEOC, with the earliest filing in March 1997. After the EEOC issued right-to-sue letters to the six applicants, they filed a civil suit against Chicago, alleging the test had a disparate impact on blacks in violation of Title VII of the Civil Rights Act of 1964.
The District Court certified a class of more than 6,000 black "qualified" applicants who were not hired.
The Supreme Court ruled that it is not simply the initial adoption of a hiring practice that can trigger a disparate-impact charge, but that each application of the hiring practice can trigger one.
"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," Judge Scalia wrote, suggesting that new claims can arise as long as petitioners can prove that Chicago's subsequent use of the practice caused disparate impact.
Chicago "warn[ed] that our reading will result in a host of practical problems for employers, [which now] may face new disparate-impact suits for practices they have used regularly for years," Justice Scalia acknowledged. In particular, he noted Chicago's arguments "that evidence essential to their business-necessity defenses might be unavailable (or in the case of witnesses' memories, unreliable) by the time the later suits are brought."
He responded that, "Our charge is to give effect to the law Congress enacted," noting that "Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer's motives and whether or not he has employed the same practice in the past," referring to the section of Title VII that spells out the burden of proof in disparate impact cases. "If that effect was unintended, it is a problem for Congress, not one that federal courts can fix."
In the decision, Justice Scalia also distinguished between disparate-treatment and disparate-impact claims. For disparate-treatment claims–which, unlike disparate-impact claims, require discriminatory intent–plaintiffs must demonstrate deliberate discrimination within the limitations period, he explained.
The question of timeliness was also at the center of the mid-2007 Supreme Court ruling–Ledbetter v. Goodyear Tire & Rubber Co.–dealing with the 180-day time limit on filing sex-based discrimination claims under the Equal Pay Act of 1963. In that case, the Supreme Court sided with employers, ruling that employees who did not file claims within 180 days of their employer's decisions to pay them less were barred forever from challenging the discriminatory paychecks that followed.
An act of Congress–the Lilly Ledbetter Fair Pay Act, the first bill President Barack Obama signed–reversed that decision.
In contrast to the Ledbetter ruling, in handing down the Lewis decision, the Supreme Court is allowing each application of a challenged employment practice to reset the clock on the time period for bringing a discrimination charge.
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