Monday, May 24, 2010

S. CT: Disparate Impact Claims Start To Run When Results of Job Test Applied by Employer

4United States Supreme Court 112904 This morning, the U.S. Supreme Court decided in unanimous fashion (Scalia writing for the Court) the important procedural disparate impact case of Lewis v. City of Chicago (U.S. 05/24/2010), which we have written about previously here and here.

Ross Runkel provides this helpful summary of the decision:

The City administered a written test to firefighter job applicants in 1995. The City notified applicants of the results at the end of January 1996. Plaintiffs filed an EEOC charge on March 21, 1997 claiming that the test had a disparate impact on black applicants and was not a valid test of firefighting aptitude. The charge was filed more than 400 days after the plaintiffs were notified, but within 300 days of the City's beginning to hire applicants. The trial court ruled that each hiring was a fresh violation of Title VII, so the plaintiffs' suit was timely. The 7th Circuit reversed, finding that "discrimination was complete when the tests were scored" and "was discovered when the applicants learned the results." Therefore, the EEOC charge was not filed on time.

The US Supreme Court unanimously reversed, holding that a plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice as long as he alleges each of the elements of a disparate-impact claim. Here, the question was not whether the claim based on the City's conduct was timely, but whether it can be the basis for a disparate-impact claim at all. The Court concluded that it can be. The Court said, "a plaintiff establishes a prima facie disparate-impact claim by showing that the employer 'uses a particular employment practice that causes a disparate impact' on one of the prohibited bases."

A little more from the syllabus of the decision:

Title VII plaintiff establishes a prima facie claim by showing that the employer “uses a particular employment practice that causes a disparate impact” on one of the prohibited bases. §2000e–2(k). The term “employment practice”clearly encompasses the conduct at issue: exclusion of passing applicants who scored below 89 when selecting those who would advance. The City “use[d]” that practice each time it filled a new class of fire-fighters, and petitioners allege that doing so caused a disparate impact. It is irrelevant that subsection (k) does not address “accrual” of disparate-impact claims, since the issue here is not when the claims accrued but whether the claims stated a violation.

So, as Jeff predicted here (even though not the unanimous decision), disparate impact claims under Title VII may be challenged within the 180/300 day statutory period from when the employer later applies the allegedly discriminatory test.  Or put differently, the court has adopted the discovery rule, in which the plaintiffs win here because they had no reason to believe that being classified as "qualified" rather than "well qualified" definitively knocked them out of the running for these jobs.


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I have a question for all you experienced people. I have a case where a friend of mine was signing up for some overtime. This person was female and african american. Anyway the supervior is white. She starts to sign up and the supervisor tells her that she cannot get overtime because she called in sick during that pay period. Unknown to her she found out that another coworker who was a male, had worked a couple of days earlier in that pay period and he also called in sick during the same pay period. The supervisor after the confrontation with the female went to the same male and asked him if he would work the following day overtime. The supervisor knew he had called in sick during the same pay period, but allowed him to work overtime. They have a union and the union contract only states that overtime has to be divided equally. The supervisor tried alleging that the agency adn union made an agreement that if someone calls in sick or misses a day they cannot get overtime during that pay period. This was never disiminated to the employees. What kind of discrimiantion would be alleged and what other legal arguments can be made?

Posted by: Paul | Jul 23, 2010 8:31:33 PM

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