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On Monday, the United States Supreme Court ruled that claims brought by African American firefighters who had sued the City of Chicago alleging that a hiring test was discriminatory were not time barred.  Lewis v. City of Chicago, No. 08-974, 560 U.S. ___ (2010).  The City conceded that its use of the hiring test was unlawful, but argued that the firefighters claims were untimely.  Addressing only the statute of limitations issue, the Court issued a unanimous decision in favor of the firefighters, holding that the firefighters timely filed a disparate impact claim based on the continued use of the hiring test.

Application of Test, not just Adoption of Test, Determines Timeliness

As part of its hiring process the City used a written exam for firefighters to assess their qualifications.  Based on applicants test results, the City created an eligibility list and only hired individuals from the list who scored high enough to be classified as “well qualified.”

The City argued that the firefighters claims were not timely because limitations began to run when the City announced the adoption and use of the test and the eligibility list.  The Court determined, however, that the unlawful employment practice was not just the adoption of the test, but also the application of the test, which occurred each time the City hired firefighters.  The Court reasoned that although a claim based on the adoption of the test would be untimely, this did not mean that no new violations could occur based on the City’s continued use of the test.  As a result, to have a timely claim, all the firefighters needed to prove was that the City used the unlawful practice that caused a disparate impact during the limitations period.

Without mentioning the Lilly Ledbetter Act, the Court rejected the City’s arguments that present effects of past discrimination could not lead to Title VII liability for the hiring test.  Instead, the Court distinguished disparate impact claims from disparate treatment claims, explaining that disparate impact claims do not require discriminatory intent.  Accordingly, the Court noted that plaintiffs bringing disparate impact claims do not need to show that deliberate discrimination occurred within the limitations period.

Advice for Employers

So what should employers do?  If a policy or practice is in use, limitations for a disparate impact claim based on that policy or practice will run from each time the policy is applied.    In order to limit liability, employers should review their current polices and practices and consistently monitor the application of the policies and practices to ensure that there is no disparate impact.