Time & Attendance
By Staff Report
Feb. 23, 2010
Supreme Court justices appeared sympathetic to an argument that an employer can be sued for racial discrimination each time it bases hiring decisions on the results of a flawed employment test, during a Monday, February 22, oral argument.
In the case before the court, a group of 6,000 African-American applicants for entry-level firefighter positions filed a suit against the city of Chicago regarding an exam that excluded the vast majority of them from consideration.
In January 1996, the city sent a letter to everyone who participated in the evaluations, saying that only those in the “well qualified” category would be hired. Those who were deemed “qualified” or lower would not get a job offer because so many people scored higher on the exam.
Only 11.5 percent of the African Americans were in the “well qualified” category, even though they represented 37 percent of the test takers. They filed suit on March 31, 1997, or 430 days after the city announced the results.
Chicago’s government does not dispute that the test unfairly excluded African Americans from consideration for the firefighter positions. It maintains, however, that the legal action occurred after the 300-day statute of limitations ran out on the initial announcement.
The plaintiffs argue that the statute should be renewed each time that the city makes hiring decisions. The suit was filed 181 days after the second round of job offers.
A district court ruled in favor of the African-American applicants. The 7th U.S. Circuit Court of Appeals, however, reversed the decision, holding that the act of discrimination occurred when the city classified the African-American candidates in the “qualified” category.
The attorney representing the job applicants, John Payton, argued before the Supreme Court that Chicago should be held to account each time it applies the exam categories to hiring decisions.
“If you don’t say that a use, in fact, can be challenged … Chicago would then take the message that it’s OK once they are past the first 300 days, and they could just go on using the discriminatory cutoff score over and over and over again,” Payton said. “That is inconsistent with the overall policy of what Title VII [employment discrimination law] is trying to root out of our economy and in our workplace.”
Benna Ruth Solomon, deputy corporation counsel for Chicago, asserted that the initial announcement of the hiring pools was the only discriminatory act for which Chicago should be liable—not subsequent selections from the pool.
“The city did not go back to the test results and it did not create—engage in a new decision or a new practice,” Solomon said.
For the second time in less than a year, the court was hearing an argument involving firefighters in an employment law dispute. It ruled in its last session that the city of New Haven, Connecticut, could not throw out a test that resulted in only white firefighters receiving promotions.
But the questions in the Chicago case resemble those raised in the pay discrimination suit before the court in 2007 brought by Lilly Ledbetter, a Goodyear Tire & Rubber plant supervisor who alleged that she was paid less than her male counterparts.
The Supreme Court ruled 5-4 that Ledbetter had not filed her case before the statute of limitations ran out. Angry Democratic majorities in Congress passed legislation early last year that clarified that suit deadlines are renewed each time a worker receives a paycheck diminished by discrimination.
The Ledbetter case revolved around disparate treatment, meaning that the intent to discriminate has to be demonstrated. The Chicago suit involves disparate impact, which does not require proving intent.
Chief Justice John Roberts Jr., a key vote in the Ledbetter majority, expressed concern that Chicago’s view of the statute of limitations would force job applicants to take legal action before they know for sure whether they’re going to be denied jobs.
“That’s kind of a bad policy, isn’t it?” Roberts said. “You are telling people who may probably not be injured at all, you still have to go to the federal court and sue.”
Conservatives such as Roberts and Justices Samuel Alito Jr. and Antonin Scalia appeared to lean toward the notion that each use of the test scores in a new tranche of hiring could trigger a disparate impact case, according to Katharine Parker, a partner at Proskauer Rose in New York and co-chair of the firm’s employment counseling group.
“There didn’t seem to be any hostility to this cause of action,” Parker said.
If the justices rule in favor of the plaintiffs, it will mean that disgruntled applicants will have more opportunities to file suits over hiring exams.
“If Chicago loses, it’s not going to change the fact that employers should validate tests prior to using them and should continue to scrutinize their policies throughout their use to ensure that they are nondiscriminatory,” Parker said.
The case is Lewis et al v. City of Chicago.
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