Friday, June 4, 2010

Supreme Court Eases Barriers to Claims of Systemic Discrimination

On May 24, 2010, the U.S. Supreme Court held in Lewis v. City of Chicago that a plaintiff who does not file a timely charge challenging the adoption of a discriminatory employment practice can assert a disparate-impact claim in a charge challenging the employer’s subsequent application of that practice.

Under Title VII of the 1964 Civil Rights Act a “charge” of discrimination must be filed with the EEOC within 180 days after that the act of discrimination occurred. This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. After the charge is filed, the EEOC initiates an investigation. The claimant can wait to until the EEOC completes its administrative investigation or the individual can request a “right to sue” letter from the EEOC. A civil action must be filed in the federal district court within 90 days from the receipt of a “right to sue” letter from the EEOC.

In July 1995, the City of Chicago administered a written examination to more than 26,000 applicants seeking employment in the Chicago Fire Department. Those who scored below 65 failed the examination. Those who scored 65-88 were deemed “qualified.” Applicants who scored 89 or higher (out of 100), were designated “well qualified.” The City announced on January 26, 1996, that it would begin drawing randomly from the top tier of scorers, those who scored 89 or above. On May 16, 1996, the City selected its first class of applicants to advance to the next stage of the selection process. It selected a second class on October 1, 1996, and repeated the process nine more times over the next six years.

In 1997, an African American applicant who scored in the “qualified” range and had not been hired as a candidate firefighter filed a charge of discrimination with the EEOC. Five others filed charges, and on July 28, 1998, the EEOC issued all six of them right-to-sue letters. Approximately 60 days later, they filed a civil action against the City, claiming that its practice of selecting for advancement only applicants who scored 89 or above had a "disparate impact" on African-American applicants in violation of Title VII.

In a 1971 case, Griggs v. Duke Power Co., the Court held that Title VII forbids not only overt discrimination, but also practices that are fair in form, but have a discriminatory effect. In such cases proof of discriminatory intent is not required. The “disparate impact” theory was codified by the Civil Rights Act of 1991. That law states that a disparate impact is established when a complainant proves that an employer uses an employment practice that excludes a disproportionate percentage of minority applicants and the employer cannot prove that the challenged practice is “job related,” i.e., relevant to the skills needed to perform the job.

In this case the City of Chicago sought to obtain a ruling in its favor on the ground that the Black applicants failed to file EEOC charges within 180 days after the "discriminatory act" occurred. The trial court disagreed, certified a class action and ruled in the Black applicants’ favor. The City of Chicago appealed and the Court of Appeals reversed after finding that the suit was untimely because the EEOC charge was filed more than 300 days after the discriminatory act, which was the decision to limit hiring to applicants who scored 89 or above on the written examination.

The case was appealed to the Supreme Court which unanimously reversed. It held that a plaintiff establishes a prima facie disparate impact claim by showing that an employer “uses a particular employment practice that causes a disparate impact.” In this case, the exclusion of Black applicants who passed the test, but scored below 89, was a new “employment practice” used in each round of selections.

The Lewis decision comes as a bit of a surprise to some observers, as the Roberts Court has not treated claims of discrimination very favorably. In a controversial 2007 decision, Ledbetter v. Goodyear Tire & Rubber Co., the Court by a slim 5-4 majority rejected as untimely a case in which a female worker was paid less than men but did discover the discrepancy before 180 days after the discriminatory decision was made. That case was criticized because disparities in pay are often undiscovered or difficult to determine, especially since so many employers keep salary and pay information confidential. The effect of the Court's holding in Ledbetter was reversed by the passage of the Lilly Ledbetter Fair Pay Act in 2009. Under Lewis, every use of an unlawful employment practice that has a disparate impact is a new violation of Title VII. This will make it easier for complainants to file timely claims.


About the Author:

Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.

He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.

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