In July 1995, the City of Chicago administered a written examination to over 26,000 applicants seeking to serve in the Chicago Fire Department. After scoring the examinations, the City announced that it would begin drawing randomly from the top tier of scorers, i.e., those who scored 89 or above (out of 100), whom the City called “well qualified.” Those drawn from this group would proceed to the next phase – a physical-abilities test, background check, medical examination, and drug test – and if they cleared those hurdles would be hired as candidate firefighters. Those who scored below 65, on the other hand, learned by letters sent the same day that they had failed the test. Each was told he had not achieved a passing score, would no longer be considered for a firefighter position, and would not be contacted again about the examination.
The applicants in-between, six of them – those who scored between 65 and 88, whom the City called “qualified” – were notified that they had passed the examination but that, based on the City’s projected hiring needs and the number of “well-qualified” applicants, it was not likely they would be called for further processing. The individual notices added, however, that because it was not possible to predict how many applicants would be hired in the next few years, each “qualified” applicant’s name would be kept on the eligibility list maintained by the Department of Personnel for as long as that list was used.
On May 16, 1996, the City selected its first class of applicants to advance to the next stage. It selected a second on October 1, 1996, and repeated the process nine more times over the next six years. As it had announced, in each round the City drew randomly from among those who scored in the “well-qualified” range on the 1995 test. In the last round it exhausted that pool, so it filled the remaining slots with “qualified” candidates instead.
On March 31, 1997, Crawford M. Smith, an African-American applicant who scored in the “qualified” range and had not been hired as a candidate firefighter, filed a charge of discrimination with the EEOC. Five others followed suit, and on July 28, 1998, the EEOC issued all six of them right-to-sue letters. Two months later, the six filed a federal court lawsuit against the City, alleging that its practice of selecting for advancement only applicants who scored 89 or above caused a disparate impact on African-Americans in violation of Title VII of the Civil Rights Act.
The question before the Supreme Court was whether the six applicants had complied with Title VII’s requirement that they file EEOC charges within 300 days after their claims accrued. If the “clock started ticking” on the 300-day requirement when the City established the cutoff score of 89, then the claims of the six firefighters would be untimely. On the other hand, if a new violation occurred each time the City made subsequent hiring decisions based on the cutoff score, then the claims would be timely.
The Court sided with the six applicants. The Court reasoned that “Title VII did not expressly prohibit employment practices that cause a disparate impact. That enactment made it an unlawful employment practice for an employer ‘to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin,’ or ‘to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of’ any of the same reasons. We have interpreted the latter provision to proscribe not only overt discrimination but also practices that are fair in form, but discriminatory in operation.
“Title VII states that ‘a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.’ Thus, a plaintiff establishes a prima facie disparate-impact claim by showing that the employer ‘uses a particular employment practice that causes a disparate impact’ on one of the prohibited bases.”
The Court held that the claims of the six applicants met this test. “The City used the practice in each round of selection. Although the City had adopted the eligibility list (embodying the score cutoffs) earlier and announced its intention to draw from that list, it made use of the practice of excluding those who scored 88 or below each time it filled a new class of firefighters. The six applicants alleged that this exclusion caused a disparate impact. Whether they adequately proved that is not before us. What matters is that their allegations, based on the City’s actual implementation of its policy, stated a cognizable claim.”
The Supreme Court returned the case to the trial court for consideration of the merits of the discrimination claim.
Lewis v. City of Chicago, Ill., 2010 WL 2025206 (U.S. 2010).
This article appears in the October 2010 issue