In a recent decision, Lewis v. City of Chicago, the United States Supreme Court held that African-American job applicants to the City of Chicago’s Fire Department were not time-barred from pursuing a discrimination action over the results of a promotional examination that took place in 1995. 

Under Title VII, a potential plaintiff is required to file a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days (depending on the state) of the discriminatory act.  In Illinois, the time restriction is 300 days. 

In Lewis, a group of African-American applicants filed suit over the results of a promotional examination that took place in 1995 that they alleged had a disparate impact on them.  Instead of designating anyone scoring above 65 — the passing grade — as “qualified,” the Department adopted a second benchmark of 89 and decided to hire only from this “well qualified” category.  The Department was not able to show that doing so produced firefighters who performed appreciably better.  However, the higher benchmark meant that white applicants were 5 times more likely than African-Americans to move on to the next stage of the hiring process.  As a consequence, the federal district court ruled in favor of the applicants.

On appeal, the Court of Appeals for the Seventh Circuit reversed, holding that the 300-day time period to file a Charge with the EEOC began to run when the allegedly disparate results were announced, not when the hiring decisions were made.  The first applicant filed a Charge within 300 days of when the hiring decisions were made, but more than 300 days after the results were announced.  Thus, the appeals court found that the applicants were time-barred from pursuing a discriminatory suit. 

The Supreme Court reversed the Seventh Circuit, holding that the applicants could bring suit as long as any cause of action for disparate impact accrued during the 300-day period.  The Supreme Court rejected the argument that the applicants could maintain a disparate impact claim only by challenging the establishment of the policy itself.  Instead, the Supreme Court pointed out that, pursuant to statutory language, a disparate impact violation under Title VII occurs whenever “a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact”.  Based on this language, the Supreme Court opined that the City of Chicago had “used” the discriminatory test results each time it made hiring decisions on the basis of that policy. 

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.