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In Lewis, the City of Chicago had created a hiring list for its firefighters based on the results of a written exam. The results of this test were divided by score into three levels: "well qualified," "qualified," and "not qualified." Only about 11% of the 1,782 applicants who fell into the "well qualified" category were African American. Although applicants whose scores landed them in the "qualified" tier would be placed on the eligible list for the jobs, over the next six years the City drew upon the "well qualified" pool in selecting candidates for employment before proceeding to the "qualified" applicants. Arguing that the test had a disparate impact on minority candidates, a class of approximately 6,000 African American applicants who fell into the "qualified" category filed suit against the City. After years of litigation, the Seventh Circuit Court of Appeals rejected the plaintiffs' claim that the statute of limitations for filing a disparate impact claim was restarted each time the City relied on the old test score categories in making hiring decisions.

The Supreme Court reversed and remanded, first finding that the exclusion of most of the applicants deemed "qualified" from the possibility of advancement constituted a cognizable disparate impact claim under Title VII. As for the timeliness issue, the Court distinguished disparate treatment from disparate impact claims: "For disparate-treatment claims--and others for which discriminatory intent is required--that means the plaintiff must demonstrate deliberate discrimination within the limitations period. . . But for claims that do not require discriminatory intent, no such demonstration is needed."

One practical effect of this decision is that employers will need to be even more diligent in its recordkeeping and document retention practices with respect to decisional procedures in order to preserve the job relatedness and business necessity defenses to a disparate impact claim.

For more information on this Supreme Court decision and a discussion of its implications for employers, continue reading Littler's ASAP: Supreme Court Gives Plaintiffs Multiple Opportunities (Potentially) to File Timely EEOC Charges Alleging Disparate Impact Discrimination by Dionysia Johnson-Massie.