Disparate impact discrimination occurs when an employment policy or practice that may appear to be neutral on its face nonetheless adversely affects a particular protected group of employees or applicants. The statute of limitations is a cutoff point that protects employers from defending lawsuits for employment actions that were made years in the past. For Title VII claims, the rules require that a charge be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days of the latest discriminatory act.
Just a few months ago, in Lewis v. City of Chicago, the United States Supreme Court held that a disparate impact employment discrimination charge is deemed timely if it is filed with the EEOC within 300 days of the discriminatory practice's application.
Let me explain. The City of Chicago had created a hiring list for its firefighters based on the results of a written exam taken more than two years earlier. A class of approximately 6,000 African American applicants who were not hired filed suit against the City claiming that the test had a disparate impact on minority candidates and therefore violated Title VII.
The City of Chicago claimed that if any discriminatory act occurred, it occurred at the time the test was administered and graded - more than 300 days earlier. The plaintiffs claimed that the discriminatory act occurred when the employment decisions were actually made. The U.S. Supreme Court agreed with the plaintiffs and held that a disparate impact employment discrimination charge filed with the EEOC within 300 days of a discriminatory practice's application will be deemed timely.
This means that test scores sitting in an applicant's or employee's file can form the basis of a new discrimination claim if those test scores are used as the basis for a new employment decision. Thus, if testing is being used to select potential employees, it's extremely important that these tests are reviewed by an employment discrimination attorney before any of the results are used in making employment decisions.
