In 1998, a class of over 6,000 African-American applicants who had scored in the "qualified" range, and who had not been selected as firefighters, sued the city, alleging that the practice of selecting only from the "well qualified" applicant pool caused a discriminatory, disparate impact on African-American applicants. The trial court found that the practice of using the cutoff score had a disparate impact with no business necessity, and ordered the city to hire 132 randomly selected members of the plaintiff class.  The Seventh Circuit Court of Appeals, however, reversed the decision, and ruled for the city, stating that the suit had been untimely because the discriminatory act—sorting the scores into "qualified" and "well qualified" categories—occurred more than 300 days before any of the plaintiff had filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Each time the city used the applicant list, the court reasoned, it was simply an "automatic consequence" of the original discrimination.

The Supreme Court reversed the decision, and held that each time the city hired from the "well qualified" pool, it committed a fresh act of discrimination, essentially resetting the clock for a possible claim. The court explained that the elements of disparate impact-type discrimination—which, unlike disparate treatment-type discrimination, does not require the plaintiff to show discriminatory intent—could be satisfied, in part, simply by showing that the employer "used" a practice that was discriminatory.  Resorting to the eligibility list, even years after the decision to use cutoff scores had been made and implemented, was "using" the practice, and sufficient to constitute discrimination.

The city argued that the court’s ruling could result in employers facing disparate impact suits over practices that they have used for many years—an argument that the court appeared to sidestep with the observation that "it is not our job to assess the consequences of each approach and adopt the one that produces the least mischief." The decision thus leaves employers more vulnerable to disparate-impact claims, even, in some circumstances, when the disputed employment practice was never challenged at the time of its adoption and has been in place for many years. In the aftermath of Lewis, employers may face evidentiary hurdles in demonstrating a business-necessity defense for long-standing practices, because documentary evidence and witness testimony relating to the practices’ adoption may no longer be available.

The decision highlights the need for thorough assessment of uniform practices and procedures—in every aspect of employment—for potential liability under federal antidiscrimination laws, before those practices and procedures are implemented. It also underscores the need for documentation of decision-making and preservation of records, to ensure that evidence relating to the adoption of employment practices is available if a disparate impact claim is brought years after the adoption of a particular practice. In recognition of the considerable exposure potentially created by this decision, employers should also consider undertaking a review of current employment practices—particularly in hiring and promotion—to foreclose the possibility of disparate impact suits in the wake of the Lewis decision.

For more information on achieving compliance with Title VII and other federal and state antidiscrimination laws, or modifying your employment practices to avoid disparate impact liability, please contact Daniel J. Moore at (585) 419-8626, or the Harris Beach labor and employment attorney with whom you usually work.

This Legal Alert provides a brief analysis or commentary on matters related to labor and employment law, and does not purport to be a substitute for advice of counsel on specific matters. The application of any federal and/or state wage and hour laws, and any implementing regulations, will depend on the facts presented in each case. As such, counsel should be sought for specific situations.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Yonkers, and White Plains, as well as Newark, New Jersey and New Haven, Connecticut.