In 1995, Lewis and other African Americans took a written test to be Chicago fir

Question

In 1995, Lewis and other African Americans took a written test to be Chicago firefighters. Chicago then announced that it would randomly draw candidates for the positions from a list of “well-qualified” applicants who scored at least 89 out of 100 points on the test. Those scoring 65—88 were deemed “qualified” and were notified they would be on the eligibility list but it was unlikely they would be selected. They repeated the process numerous times. In 1997, several African Americans who were qualified but not chosen filed suit alleging that Chicago’s practice had a disproportionate adverse impact on them in violation of Title VII. The city sought to block the suit, alleging the claimants did not meet the 300-day limitation period after the policy was adopted. After holding that the city’s ongoing reliance on the 1995 test constituted a continuing violation, the trial court found that Chicago should hire 132 randomly selected members of the class and award back pay to the remaining class members. The court of appeals found the suit to be untimely and reversed the lower court. Was there a series of discriminatory acts that would allow the suit to proceed? Explain.

Explanation / Answer

In a disparate impact case, no longer are Title VII time limitation periods to be strictly construed by ascertaining when the original discriminatory employment action occurred. Instead, time limitation periods are to be applied in reference to many later implementations of the original action even those occurring well outside the time limitation period measured from the original discriminatory act."

After initially deciding to exclude job applicants who scored below a certain threshold on a test (a decision that had a disparate impact on African-American applicants), the city of Chicago kept excluding such applicants. The Supreme Court's Lewis decision clarifies that, in the disparate impact context, each subsequent 'use' of an impermissible policy constitutes a new violation – even if the statute of limitations ran long ago on the initial decision to implement the policy. The fact that a policy was implemented well outside the limitations period does not protect an employer that continues to use and re-use that policy.

Quite simply, the City could have done what it is doing now: it could have randomly selected candidates who passed the exam for further evaluation. Such an alternative would have been less discriminatory; although the 1995 Test would have had a disparate impact on African-American candidates regardless of the cut-off score, random selection of qualified candidates has indisputably lessened the disparate impact of the 1995 Test. Moreover, the new policy of random selection of qualified applicants is "equally valid" in that it is equally effective at serving the essential goal of the CFD, producing quality firefighters. There is no indication that the shift in selection procedures caused a drop-off in the quality of firefighters produced by the Academy. As the City candidly admitted in Horan, there is no evidence that firefighters who scored between 65 and 89 are any less qualified than candidates who scored 89 or above.

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