Employees Win in Battle Over Discrimination Suits

blind justiceOne of the big issues in employment discrimination law is the statute of limitations: how soon do employees have to file their suits after discrimination occurs?

The most recent blowup over this issue was the Lily Ledbetter case, in which the Supreme Court took a very formal approach and ruled that Ms. Ledbetter couldn't sue when she did because the discrimination started many years earlier, even though she didn't know about it until shortly before she filed suit. An irate Congress overturned the Supreme Court decision, but the new statute didn't reach all circumstances. Now a unanimous Supreme Court issued a decision in a Ledbetter-esque case that says the clock can start ticking anew each time the employer applies the discriminatory practice, instead of running only once when the practice is first instituted.

The Court explains the issue isn't really about timing; it's about whether the application of the discriminatory practice meets all the elements of a disparate impact claim. If the application of the practice itself gives rise to all the elements of a disparate impact claim, then the application itself is actionable discrimination and the lawsuit clock resets. The Court rejected the City's attempt to rely on Ledbetter by noting that the discrimination charged in the two kinds of cases was different in a crucial way. In Ledbetter the discrimination charged was disparate treatment, which requires an act of intentional discrimination within the statute of limitations period. However, in this disparate impact case, intent is irrelevant and thus each round of hiring decisions was able to meet all the elements of the claim and reset the clock.

The decision, Lewis v. City of Chicago, arises from a firefighter exam given by the City in 1996. When the exam was given, all people who scored over 65 were deemed "qualified" for hiring. However, after the results were in the City announced that it was creating a new category -- "well qualified" -- for those who had scored 89 or better, and proceeded to hire from only that subset of people for the next 11 rounds of hiring. Whether or not by design, limiting hiring to the top scorers had a disparate impact on "qualified" African-Americans because the "well-qualified" group was far whiter than the "qualified" group.

In defending against the appeal, Chicago didn't dispute that the creation of the "well-qualified" category resulted in an illegal disparate impact; instead it claimed that the only actionable discrimination was the decision to create the category, not every decision to hire exclusively from within the category, and thus the lawsuit was untimely. Indeed, the City lost at trial after the trial court rejected the statute of limitations argument. The city then won its statute of limitations argument on appeal to the Seventh Circuit, which led to the appeal decided today. As a result, this decision essentially ends the litigation.
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