The U.S. Supreme Court in Lewis v. Chicago, has made it more difficult for employers to defend disparate impact discrimination claims.    The Court ruled that employees or job applicants could challenge the application of an alleged discriminatory practice even if they hadn’t contested the initial adoption of that practice on a timely basis.

In the case, the City of Chicago had given a written test to 26,000 applicants for firefighter positions.  The City placed applicants in three categories:  “well-qualified,” “qualified” or “not qualified” and indicated that they’d hire from the “well-qualified” category.  Individuals in the “qualified” group were told that they’d be eligible for consideration but not likely to be hired unless the well-qualified group was used up.  African-American applicants were not well represented in the “well qualified” group and a class of them sued, claiming that the test adversely impacted African-Americans.   However, the plaintiffs did not file their case within the required 300 days of the alleged discriminatory act (the test).  So the question was:   must they file their case within 300 days of the test or within 300 days of the application of the practice (i.e., when hiring began to take place.)

A unanimous Supreme Court, ruled for the applicants, finding that in this instance a case must be filed within 300 days of the application of the process, in other words after each round of hiring.

The Court did not decide whether there was discrimination but only ruled on the issue of whether the case was filed timely.    You’ll remember that disparate impact can be found in a Title VII case if it can be shown that an otherwise neutral employment practice (e.g., testing applicants) has a disproportionate impact on a protected group (based on sex, race, religion, etc.)  and there is no showing that the disparity was justified by business necessity.  There is no need to show discriminatory intent in disparate impact cases.   In most states discrimination charges must be filed within 300 days, however some have a 180 day limit.

What does this mean for you?      It makes it more important than ever that you continually review your employment practices such as hiring, promotion, corrective action, termination, etc. and that your managers are well trained in the basics of employment law.

Otherwise you may be liable for unintentional discrimination that occurs well after a practice or policy is implemented.