by Art Gutman Ph.D., Professor, Florida Institute of Technology
As reported in a May 2010 alert, the Supreme Court unanimously opined that the plaintiffs in Lewis v. Chicago may proceed to trial with their adverse impact challenge to written exams for entry-level jobs in the Chicago Fire Department. To refresh your memory, in July 1995 a test was administered to 26,000 applicants, and in January 1996, the City of Chicago announced it would draw randomly from “top tier” (or “well qualified) applicants (scores of 89 out of 100 or greater). These applicants were labeled “well qualified”, and would be randomly selected to proceed to the next phase of selection process consisting of a physical abilities test, background check, medical examination, and drug test. Applicants scoring below 65 were labeled “unqualified” and were informed that they failed the test. However, applicants scoring between 65 and 88 were labeled “qualified” and were informed it was unlikely they would be selected, but that their scores would remain on file in the event the list of “well qualified” applicants was exhausted. The City selected its first group of applicants on May 16, 1996 and a second group on October 1, 1996. The process was then repeated nine more times over the next six years.
One of the “qualified” applicants sued on March 31, 1997. After a bench trial, the district court rejected the City’s business-necessity defense and awarded relief to 132 class members. Interestingly, the City raised only one question on appeal; whether a March 1997 discrimination charge was timely because it came more than 300 days after the applicants in the “qualified” pool learned they were unlikely to be hired. The 7th Circuit ruled that the charge was untimely, but this ruling was reversed in a unanimous Supreme Court opinion written by Justice Scalia. More specifically, Scalia ruled that in an adverse impact claim, the time starts anew every time the employer uses the test to make hiring decisions. As a result, each of the 10 hiring events after the first one was considered timely. Or in Justice Scalia’s words:
Under the City's reading, if an employer adopts an unlawful practice and no timely charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact. Equitable tolling or estoppel may allow some affected employees or applicants to sue, but many others will be left out in the cold. Moreover, the City's reading may induce plaintiffs aware of the danger of delay to file charges upon the announcement of a hiring practice, before they have any basis for believing it will produce a disparate impact.
Interestingly, had the subsequent 10 hiring events used strict rank order selection, the district court would be forced to consider 10 separate analyses. However, since the selection in each hiring was random from within the “well qualified” group, only one analysis is required. Or in the words of the 7th Circuit:
If the City had hired in rank order, as many civil-service employers do, things would have been different. Suppose applicants who got 100 had been hired in May 1996, those who got 99 four months later, those with scores of 98 four months after that, and so on. Then it would have been essential for plaintiffs and the district court to evaluate each use of the list separately. For it is possible that some of these uses would not have produced a disparate impact—and, if any given band of scores had an adverse effect on minority applicants, it might have been easier for the employer to justify the practice. Perhaps it would have been "consistent with business necessity" to hire those who scored 100 ahead of those who scored 85, even if it was not necessary to hire those who scored 90 ahead of those who scored 88. But Chicago did not hire new firefighters in rank order. Everyone who scored 89 and up was treated alike; everyone who scored 65 to 88 was treated alike.
In effect, this means that the original ruling by the district court now stands, as the City conceded there was adverse impact and cutoff score was deemed unjustified by the district court. Or, in the words of the 7th Circuit, “the City's concession plus the district court's uncontested findings establish all that is required for the plaintiffs to prevail on the merits.”
So be it for the supposed advantage of selecting randomly within bands as opposed to strict rank ordering.