Monday, May 24, 2010

Supreme Court: Disparate Impact Arises Upon Application of Employment Practice

The Supreme Court issued an opinion in Lewis v. City of Chicago today. Although the Court is often divided on employment law issues, the Supreme Court was unanimous in today's holding by Scalia, J. 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.
(Syllabus). So what brought about this decision?

It started with a written examination administered to applicants for firefighter positions (hmmm, where have I heard this setup before?). The applicants took the test in 1995 and the City divided them into categories in 1996. The categories were "Well Qualified" scoring 89+; "Qualified," scoring 65-88; and everyone scoring below 65 failed. The City then began to hire from the "well-qualified" pool for about six years until they depleted the "well-qualifieds" and dipped into the mere "qualifieds."

Starting in 1997, several African-American applicants filed charges with the EEOC, alleging discrimination. The City argued that the discriminatory act was the classification of applicants into the different pools. And that the application of that classification, the various hiring decisions made in subsequent years, did not reset the statute of limitations. Per today's 9-0 decision: Wrong!

The employment practice in question here was, "the City’s practice of picking only those who had scored 89 or above on the 1995 examination." If that application of the test scores constituted a disparate impact claim, then the date of that application should be used in analyzing the statute of limitations.

The City and its amici (individuals or groups not directly involved in the case but providing input in friend of the court briefs) had argued that today's holding "will result in a host of practical problems for employers and employees alike." Justice Scalia offered an interesting rebuke:
In all events, it is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted.
He'll no doubt keep that one in his back pocket for a rainy day.

The bottom line: Disparate impact may occur upon the application of a previously adopted practice.

Posted by Philip Miles, an employment lawyer with McQuaide Blasko in State College, Pennsylvania.

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