by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Young v. Covington & Burling LLP [2010 U.S. Dist. LEXIS 94579, 9/9/10] in which Yolanda Young, a black female attorney, sued her former employer (a law firm) on grounds that their policy of assigning some attorneys to staff positions from which promotion to partner was not possible has an adverse impact on blacks. Young alleges that in 2006, the firm established the ban on promotion from staff positions, and that from that point, new black hires were assigned to staff positions at a rate of 7.5 times that of white attorneys. Young complained to her supervisor, she was subsequently given a poor performance evaluation, and was terminated. There were several other charges in this case, but the most important one for present purposes is the adverse impact charge.

The important point is not whether it is a strong adverse impact charge --- no opinion was rendered on that issue. The important point was whether the adverse impact charge was timely. The law firm argued that more than 300 days had passed from the time of her job assignment and her performance appraisal (and termination), and therefore, the charge was beyond the statute of limitations for filing a Title VII claim. Interpreting the Supreme Court’s ruling in Lewis v. Chicago (2010) [130 S. Ct. 2191], District Court Judge Reggie B. Walton denied the firm’s movement for summary judgment, ruling:

[T]he Court cannot dismiss the plaintiff's disparate-impact claim as untimely with respect to the job-assignment component of the claim because it is based on a theory that Covington's initial job-assignment had a disparate impact on African-Americans and that she was subjected to that policy each time her job performance was evaluated, the last evaluation having occurred within the two governing statutes of limitations periods.

Recall that in Lewis v. Chicago, a unanimous Supreme Court ruled that adverse impact is, in effect, a continuing violation. Entry-level firefighter exams were administered in July 2005, and scores were banded into “well qualified”, “qualified”, and “unqualified” groups at that time. The city then selected its first group of applicants in 1996, and the process was repeated nine times over the next six years. One of the excluded “qualified” applicants sued in March of 1997, which was more than 300 days after actual banding decisions were made. The Supreme Court ruled that adverse impact charges are timely each time hiring decisions from the bands were made. Judge Lewis’ ruling is that Yolanda Young was in a similar position each time a performance appraisal was made.

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