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Plaintiff does not file a timely charge challenging adoption of a practice with the EEOC; no problem – Plaintiff may still maintain a disparate impact claim based on later application of the unlawful employment practice

Under Title VII of the Civil Rights Act of 1964 employers cannot promulgate practices that cause a disparate impact on the basis of race, color, religion, sex and national origin. 42 U.S.C. §2000e-2(k)(1). In Lewis, Jr., et al. v. City of Chicago, 130 S. Ct 2191, 176 L. Ed. 2d 967 (2010), the Supreme Court dealt with a case where unsuccessful firefighter applicants sued the city for its practice of first selecting only from the “well qualified” applicant pool, those who scored 89/100 or above on a written exam, which had a disparate impact on African Americans. The City stipulated that its 89-point cutoff for “well-qualified” applicants had a disparate impact on African Americans, but sought summary judgment because the plaintiffs had failed to timely meet the charge filing requirements under Title VII. Before initiating an action under Title VII a Plaintiff must exhaust his/her administrative remedies, including filing a timely charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) (or other appropriate state agency). 42 U.S.C. §2000e-5(e)1. Thus, the City argued that since the earliest claim filed with the EEOC by an applicant was on March 31, 1997, more than 300 days after the claim accrued, which is the deadline set forth in Title VII, that summary judgment was appropriate. The Seventh Circuit agreed with the City, reversed the District Court, and granted the City’s summary judgment motion. The Circuit Court found that since the only discriminatory act was sorting the scores into categories, including “well-qualified,” that the earliest EEOC charge filed on March 31, 1997 was outside the 300 day deadline and untimely. Lewis, 130 S. Ct. at 2196. The Circuit Court reasoned that later hiring decisions were not material “because ‘the hiring only of applicants classified ‘well qualified’ was the automatic consequence of the test scores rather than the product of a fresh act of discrimination.” Id.

The city, citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 52 L.Ed. 2d 571 (1977), argued that present effects of prior actions cannot lead to Title VII liability. Id. at 2198. And that, since a timely charge attacking the original practice was not filed, the city was entitled to treat the past act as lawful. The Supreme Court disagreed and explained that the proper question, was not whether the charge was timely based on when the unlawful employment practice originally occurred, because for disparate impact claims, as opposed to disparate treatment claims, discriminatory intent within the limitations period is not required. Rather, the proper question was whether the city’s continued use/implementation of that unlawful practice, using test scores of 89 or above in selecting subsequent classes, stated a cognizable disparate impact claim under Title VII? Id. at 2197.

To establish a prima facie disparate impact claim a plaintiff must show the use of an employment practice that causes a disparate impact on a protected class. Id. All parties agreed that except for the first round of selection, in May 1996, the city’s use of the cutoff score in selecting subsequent candidates occurred within the charging period, i.e., within the 300 days of March 31, 1997. Thus, if petitioners could bring new claims based on those later selections, their claims would be timely; making the issue whether the petitioners’ claims accrued at all? The Court found that based on the elements set forth in 42 U.S.C. §2000e-2(k)(1)(A)(i) that a disparate impact claim “is established” merely by showing that “an employer ‘uses’ an ‘employment practice’ that ‘causes a disparate impact’ on one of the enumerated bases.” Id. at 2198. Thus, each subsequent implementation of the decision to use the cutoff in selecting later classes constituted a new violation that was cognizable under the law.

The Court acknowledged that either reading of the statute produced puzzling results. Under the city’s reading, an employer may continue using an unlawful practice, where no timely charge is filed, with impunity despite a continuing disparate impact on a protected class. Whereas, under the Supreme Court’s interpretation, employers could be subject to disparate impact claims for practices that have been in place for years and where essential evidence related to the business-necessity defense may be unavailable by the time later suits are brought. Id. at 2000. The Court, however, reaffirmed that its role was to give effect to the law enacted by Congress, not to assess the consequences of the law and adopt the least troublesome approach. Id.

Mark J. Lemire, Esq.

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