In another win for employees charging discrimination, the Supreme Court decided that firefighter applicants could sue for racial discrimination whenever the City of Chicago used an allegedly discriminatory test to fill openings. A class of African-American applicants claimed that the test, and its use, had a disparate impact on African-Americans. The City rejected all applicants scoring at 65% or lower, and decided that all applicants scoring at least 89% were eligible for the next stages of testing. Those who passed the test, but did not score at least an 89, were notified that it was unlikely that they would be called for any openings.
The African-American applicants contended that the test had a disparate impact on black candidates. That is, the test had the effect of eliminating proportionately more black than white candidates. At that point, it is up to the employer to show that the test is sufficiently related to the job requirements that its disparate impact is unfortunate but acceptable.
At the Supreme Court, Chicago admitted that the use of the 89% cutoff was unlawful. It tried to convince the Court, though, that there was only one discriminatory act, the 1996 test and its use to create three groups of people: rejected, qualified, and “well-qualified.” Since no one filed charges of discrimination within 300 days of the announcements of the three lists, it contended that all claims were too late to challenge the test and its scoring.
The Court held that not only the original adoption of the practice, but also the application of the practice, were incidents of discrimination. Therefore the class members were able to file charges of discrimination each time the City used the test.
This decision, authored by Justice Scalia, was unanimous. It is limited to the kinds of actions that do not require proof of discriminatory intent, that is, practices that have the effect, presumably unintended, of discriminating against one group.
Still, it has interesting language seeming to soften the widely criticized (and legislatively dismantled) Ledbetter decision.Quite often, the procedural issues relating to timing and proof structure have monumental consequences for employment discrimination victims, so this case, limited or not, is a positive step.