Putting Out Fires
On Monday, the Supreme Court heard oral arguments in Lewis v. Chicago, a case considering the statute of limitations to sue an employer for using a hiring test with a disparate impact. This case began in Chicago, where 26,000 individuals interested in becoming firefighters took a written test as part of their application process. Those scoring above 65 were deemed "qualified" and those scoring above 89 were deemed "highly qualified."
While a score of 89 did not have any particular significance that would set those who scored above it apart from those who scored above 65, the Chicago fire department decided to select its new employees from the "highly qualified" category before selecting anyone who was simply deemed "qualified." This arbitrary decision had a disparate impact, negatively affecting African-American candidates who represented only 11.5% of those in the "highly qualified" category, but 37% of the applicants overall.
The city of Chicago used the results of this test to hire 10 separate classes of new firefighters. Before they began the hiring, they announced that those on the "highly qualified" list would be more likely to receive jobs than those on the "qualified" list. The question at hand is whether the firefighters who were victims of the disparate impact were required to sue within 300 days of when the hiring practice was announced or 300 days from each separate implementation of the practice.
Nearly every news source reporting on Monday's oral arguments succumbed to the temptation to portray this case as a hybrid between last year's Ricci v. Destefano and the OTO7 Ledbetter v. Goodyear. Ricci v. Destefano questioned whether the city of New Haven could throw out the results of a hiring test that they believed had an unintended disparate impact and Ledbetter v. Goodyear considered the statute of limitations to sue for pay discrimination. You can't really blame the reporters--the similarities are glaring.
The Union for Reform Judaism signed onto an amicus brief for Lewis v. Chicago, coordinated by the National Partnership for Women and Families and the National Women's Law Center and in favor of the petitioners (the firefighters) in the case. The brief argues that the only appropriate rule - consistent with both the text and purpose of Title VII's disparate impact provision - is one that would permit an individual to challenge an employment selection or promotion policy or device that has a disparate impact whenever the policy is applied to that individual. In other words, the 300 day statute of limitations should not only apply a practice with a disparate impact is announced, but each time that the practice is applied.
Most reports on the oral arguments indicated that the Justices seem to be sympathetic to the firefighters' position. However, as always, we cannot predict how (or when) the Supreme Court will decide the case. Keep an eye on the RAC blog--we'll be sure to report back when the Justices opinions are released!