GETTING THE MESSAGE?

In 2007, the United States Supreme Court issued a narrowly-divided 5-4 decision in the well-known Ledbetter v. Goodyear Tire and Rubber case where the Court held that, with respect to decisions regarding the payment of wages to an employee, the clock for bringing a lawsuit for discrimination under Title VII of the Civil Rights Act begins when the agreement to pay a particular employee was made, rather than the date of the most recently-issued paycheck.

Of course, the Court’s decision in Ledbetter was thereafter essentially overturned in January 2009 when President Barack Obama signed into law a measure amending the Civil Rights Act to reflect that a new deadline to bring a lawsuit alleging discrimination in the payment of wages commences with each paycheck. Naturally, the bill was famously called The Lilly Ledbetter Fair Pay Act of 2009, after the plaintiff in the Ledbetter case.

Approximately 18 months later, it would appear that the Nation’s highest Court received Congress’ message loud and clear.

On Monday, the Supreme Court issued a decision in another closely-watched case, Lewis v. City of Chicago, in which it concluded, unanimously, that the deadline to bring a different type of discrimination case under Title VII – a disparate impact case – begins to run when a hiring decision pursuant to a discriminatory hiring practice actually occurs, rather than when the hiring practice was first put into place.

In the City of Chicago case, the Court resolved a dispute which began more than 13 years ago when more than 6,000 African-American firefighter-applicants collectively filed a discrimination charge with the United States Equal Employment Opportunity Commission complaining that a qualification test administered by the City had a disparate impact on them, thereby denying them employment opportunities that similarly-situated Caucasian applicants were provided. The City defended the charges on the ground that the African-American applicants didn’t file their claim within the 300 day statutory period after the test results were announced.

After the EEOC gave the firefighters the right to sue, they did just that, and a federal district court in Illinois agreed with their position. On appeal, however, the Seventh Circuit Court of Appeals reversed the lower court, setting the stage for the Supreme Court’s ruling Monday reversing the Seventh Circuit and agreeing with the firefighters’ position that disparate impact discrimination actually manifests itself – thus first giving right to a legal cause of action – when a hiring decision is made.

While it is fair to point out that the Ledbetter decision focused on disparate treatment discrimination (which is the more common type, when someone in a protected class is treated differently than someone similarly-situated in a different class), and the City of Chicago case had to do with disparate impact discrimination (decisions that are neutral on their face but have a disparate impact on a particular group or class), it’s hard to ignore the fact that the differing takes the Supreme Court offered on both of these “time-to-bring-a-lawsuit” questions came with the actions of Congress overturning the high court in between.

Employers always should critically analyze their employment decisions for potential discriminatory impact, both at the time made and in terms of any impact their decisions may have on any group in the future. The need for this is particularly acute when tests are used in the hiring process, as the City of Chicago case and the Ricci opinion from less than a year ago – another case involving firefighter applicants – make plain. While employers can admittedly sometimes be caught in the middle between avoiding disparate treatment at the expense of disparate impact, or vice-versa, it never hurts to do a thorough review of such practices in an effort to avoid at least one, if not both, of those unfortunate – and often costly – results.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
 
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