Michael J. Davey, Esq. mdavey@eckellsparks.com 610.565.3700

Tuesday, May 25, 2010

U.S. Supreme Court: Employee May Challenge Employer's Use of Discriminatory Policy Even If Policy Itself Was Not Challenged When Adopted

In Lewis v. City of Chicago, No.: 08-974 (May 24, 2010), the U.S. Supreme Court held that under Title VII, an employee may challenge an employer's use of an alleged discriminatory employment policy even if the employee failed to administratively challenge the alleged discriminatory policy at the time it was adopted by the employer.

Lewis involved a class-action lawsuit that was filed by 6,000 fire-fighters against the City of Chicago, alleging that the City's policy for hiring fire-fighters from a pool of candidates who took a written examination was discriminatory under Title VII, as it worked a disparate impact against African-Americans. Specifically, the City adopted a policy whereby all individuals who scored at least 89 out of 100 points on the written exam would be placed in one pool of candidates, while individuals who scored between 65 and 88 on the written exam would be placed into a second pool. As the City had the need to fill vacant fire-fighter positions, it randomly chose candidates from the 89-100 score pool first, until that pool was exhausted. The City admitted that this system, which it formally and publically adopted on January 26, 1996, was discriminatory.

However, while the City admitted that the policy was discriminatory, no claims of discrimination were ever filed against the City before the EEOC within 300 days of the City's adoption of the policy. However, on March 31, 1997, a charge of discrimination was filed before the EEOC by an individual who was a member of the 65-88 score candidate pool, alleging discrimination by the City through the use of the policy.

The City moved to dismiss the case, arguing that because none of the plaintiffs ever challenged the legality of the policy within 300 days of when the City publically adopted it, the plaintiffs' suit alleging discrimination as a consequence of that policy was thus time-barred. The City further claimed that while the policy was admittedly discriminatory when adopted in 1996, since no challenge to its validity was made within 300 days after its adoption, its legality could no longer be questioned.

The Supreme Court disagreed and held that the plaintiffs stated a valid cause of action. Justice Scalia, writing for a unanimous Court, held that the disparate impact prohibition contained within Title VII plainly bars the "use" of a particular employment practice that causes a disparate impact. Therefore, the plaintiffs here were able to challenge the legality of the City's actual implementation of the alleged discriminatory policy, not just its adoption. As it was undisputed by all the parties that the City had "used" the policy to hire fire-fighters exclusively from the 89-100 score candidate pool within 300 days of when plaintiffs filed their charge of discrimination, the Supreme Court held that dismissal of plaintiffs' case was improper.

A copy of the Supreme Court's full opinion can be found here: http://www.supremecourt.gov/opinions/09pdf/08-974.pdf