Last week, the U.S. Supreme Court found timely the discrimination charges of a class of 6,000 African-American firefighters who sued the city of Chicago for race bias in its employment testing. In Lewis v. City of Chicago, the justices unanimously held that when an employer institutes an illegal practice having a disparate discriminatory impact, it may be challenged each time the employer uses it. Justice Scalia, who wrote the opinion, distinguished between the adoption of a discriminatory practice and its application. The Seventh Circuit below had found that the claims were time-barred.
In 1995 Chicago gave a written test to 26,000 firefighter applicants and began drawing from the top scorers, those considered “well qualified” because they scored at least 89 points of 100. Those who scored 65-88 were considered “qualified” but were not hired, while those who scored under 65 were told they had failed the exam. Several classes of firefighters were selected from the testing over the years. In 2007, a group of 6000 “qualified” African American applicants sued, claiming that the policy caused a disparate impact on them based on race. ( The well-qualified group was 76% white and 11.5% black.)
The city conceded that the testing produced a disparate impact but argued that claims were time-barred because they should have been filed with the Equal Employment Opportunity Commission within 300 days of accrual; the city said this accrual occurred when the tests were scored and results announced, not during the subsequent rounds of hiring based on the tests. The Supreme Court disagreed, finding that the application of a long-held policy restarts the clock. Scalia distinguished between this case and others in which the Court has held that Title VII claims were time-barred, such as the Ledbetter case, which resulted in Congress passing the Lily Ledbetter Fair Pay Act of 2008. In the Court’s disparate treatment cases, Scalia argued, the intent to discriminate must have occurred within the statutory period, whereas there is no intent requirement for disparate impact claims.
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