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

In a long awaited and much anticipated ruling issued on May 24, 2010, the Supreme Court unanimously opined that the plaintiffs may proceed to trial with their adverse impact challenge to written exams for entry-level jobs in the Chicago Fire Department. The full text of the ruling is presented here on the Findlaw.Com website.

At issue was a test administered to 26,000 applicants in July 2005. The City announced on January 26, 1996 that it would draw randomly from “top tier” scorers (89 out of 100 or greater). These applicants were labeled “well qualified”, and if randomly chosen, would proceed to the next phase of selection involving 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, more importantly for present purposes, applicants scoring between 65 and 88 were labeled “qualified” and were placed in limbo. They 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.

Subsequently, one of the “qualified” applicants who was not selected, sued on March 31, 1997. Five other similarly situated plaintiffs joined him on July 28, 1998, and the district court then certified a class of 6,000 “qualified” applicants. However, the 7th Circuit overturned the district court on grounds that these claim were untimely because they were filed more than 300 days after the CPD sorted the scores into the three categories and reported those categories to applicants. The 7th Circuit ruled that the sorting process was the only discriminatory act, and described subsequent hiring decisions as an “automatic consequence of the test scores rather than the product of a fresh act of discrimination.” The Supreme Court then reversed the 7th Circuit in a unanimous ruling written by Justice Scalia.

Scalia’s ruling is easily the simplest and most straightforward Supreme Court ruling ever on an adverse impact issue, and also, the first unanimous opinion in this domain. The City argued that past Supreme Court rulings in UAL v. Evans (1977) [431 US 553], Delaware State College v. Ricks (1980) [449 US 250], Lorance v. AT& T Technologies (1989) [490 US 500], and Ledbetter v. Goodyear Tire & Rubber (2007) )[550 US 618] “stand for the proposition that present effects of prior actions cannot lead to Title VII liability.” Scalia replied that Title VII plaintiffs must show a “present violation” within the statute of limitations, and that the principal relating to present effects of prior acts applies only to disparate treatment claims, which require proof of an illegal motive (or deliberate discrimination) within those limits. However, in adverse impact claims, which do not require proof of motive, Scalia ruled there was “ongoing” adverse impact. Accordingly:

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.

Scalia then ruled “the only question presented to us is whether the claim petitioners brought is cognizable. Because we conclude that it is, our inquiry is at an end.” So now the case can go to trial with a decided disadvantage to the City of Chicago conceded that the test results used to create the hiring list was unlawful. And isn’t it interesting that Justice Scalia, who wrote a concurring opinion in Ricci questioning whether adverse impact theory was constitutional in light of equal protection under the 14th amendment, wrote this adverse impact decision?

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