by Art Gutman Ph.D., Professor, Florida Institute of Psychology
The case was about a firefighter entry-level exam administered to 26,000 applicants in July 2005 and scored in January 2006. Scores were banded into three categories: “well qualified” (89 or greater), “qualified” (65 to 88) and “unqualified” (65 to 68). There were 1,800 scores at 89 or greater for 600 to 700 anticipated initial hires, and there was adverse impact among the “well qualified” (12.6% white and 2.2% black), as whites were 5.4 times more likely to be in this band than black, but were only 1.3 times more likely to score between 65 and 88. Hires were ultimately made randomly from the “well qualified” band both before and after the adverse impact lawsuit was filed in March 2007, and more than 400 days after the results were reported. The district court ruled there was adverse impact in the highest band and that the City did not carry its defense burden [Lewis v. City of Chicago, No. 98 C 5596 (N.D. Ill. Mar. 22, 2005)]. The City appealed, arguing that the statute of limitations (300 days) for filing the lawsuit was exceeded based on the date the results were reported. The plaintiffs argued that there were continuing violations every time a hire was made in accordance with the Ledbetter Act of 2009. The 7th Circuit sided with the City [Lewis v. City of Chicago, 528 F. 3d 488 (2008)]. The Supreme Court heard oral arguments on the 7th Circuit ruling on February 22, 2010. The district and circuit court rulings in this case are discussed in detail by Dunleavy & Gutman (2010) (see http://www.siop.org/tip/jan10/08gutman.aspx). The oral arguments are at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-974.pdf.
The key question addressed at oral arguments was:
Where an employer adopts an employment practice that discriminates against African Americans in violation of Title VII's disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer's use of the discriminatory practice?
Favorable questions for the plaintiffs were asked by Justices Breyer, Ginsburg, Sotomayor and Stevens during oral arguments. Unfavorable questions were asked by Justice Scalia, Justice Thomas asked no questions, and Justice Kennedy, the deciding 5th vote in recent close 5-4 rulings, asked only a couple of questions that were relatively neutral. Justice Alito asked questions that seemed to pressure both sides. Interestingly, it was Justice Roberts who asked the most critical question relating to potential hires in the “qualified” group. Accordingly:
What if the letter said, Look, we didn't get, you are not well-qualified but we really do expect to hire a lot more, so, you know, keep your fingers crossed. There is a good chance that you are going to be hired. And you say those people should have sued right then?
The defense attorney replied:
Correct. Because the impact, at a minimum, is the delay in hiring. And the Court has made quite clear that you don't -- a complainant or Plaintiff does not have to feel all the consequences right at the outset.
To which Justice Roberts replied:
Well, that's kind of a bad policy, isn't it, you are telling people who may probably not be injured at all, you are saying, Well, you still have to go to the federal court and sue.
Stay tuned for the ruling, which should be in late spring or early summer.
